The coming administration, and what it means here at Law Dork
It’s going to be a rough ride, but remembering — and acting on — our values will be key. Also: What is this about the ERA? And, for paid subscribers: Closing my tabs.
In less than 24 hours, Donald Trump is set to take the oath of office. Again.
The first Trump presidency taught us a lot about the ways in which he and his appointees will ignore and, in doing so, test norms. It taught us about the ways in which people would seek favor from Trump through flattery and financial benefits to him and his associates. It taught us about the ways our institutions were not prepared for this moment.
Trump never should have been allowed to run for reelection. The Senate should have convicted him in his second impeachment trial. Additionally, there were many steps before and since in which groups or institutions needed to take action but did not do so. Most notably among them was, of course, the U.S. Supreme Court, which — far more than just enabling his run for reelection — also, through the immunity decision, put in place a system that will make his second term far more dangerous.
At the same time, we have seen warning signs that the Senate will in most circumstances bend to Trump’s will. The House speaker is the most extreme person elevated to that position in recent decades. We all have seen exceptionally concerning signs that the wealthiest men in the world will gladly shower money and praise on Trump in order to place themselves and their business interests within his good graces.
In short, on January 20, we are entering a new American era.
At the same time, I do not believe it is a time to give up. Not by any means. To the contrary, it is a time to hold all the stronger to the principles you hold dear. It is a key moment to hold our leaders — both governmental and in business — accountable for their actions. That, for me, means that I get to do for you here at Law Dork what I always have done. I will be covering the legal stories around us, with a focus on those individuals and groups most disproportionately affected by the actions of those running the show. But, it is also with awareness that this is a different time and there are aspects of my coverage that will be more important than they have been in the past.
I will do that, and I know that I am not alone. There will be people at other publications, big and small, also pushing to cover the administration, Congress, and courts — not to mention state and local governments — with the skepticism that journalism should always have of those in power. I will be doing my part, and I ask that you reach out to me when you have a story — or when you think there is something that should be getting coverage but isn’t.
There was another lesson of the first Trump administration: Individuals do have power to make change by forcing issues into the public’s collective mind. To that end, I also will be watching for stories of those working at the federal, state, and local level to protect communities and democratic principles — and ask you to let me know about those efforts, too.
A final word: I get that some will look at this, read this, and think that it is a partisan thing. It isn’t. I would ask you to take a step back and, first, know that I aggressively covered the Obama and Biden administrations from D.C. — holding them to account when I found them falling short of campaign pledges, for example, or when they acted without transparency.
Beyond that, though, I do think this is a different moment. I was working at a newspaper during the 2000 election. I lived through those 8 years of the George W. Bush administration — as a journalist, as a student, as a blogger, as an activist, as a lawyer. There were many disturbing problems with that administration, and some of them made a Trump more likely. But there were not regular questions about whether George W. Bush would seek a third term and whether the Supreme Court would OK it, for example. That is, quite possibly, an issue I will have to address here in the coming years, as absurd as it is.
But, I will do it — and it is not a partisan task.
I do this because journalism that values the democracy is important. Our country was formed in part because of the value and values that independent journalism brought to that revolutionary moment, values that were quickly protected under the First Amendment to the Constitution — created to help protect that democracy.
It’s going to be a rough ride, but remembering — and acting on — our values will be key.
On the ERA
On Friday, President Joe Biden made a statement many have been looking for — “affirm[ing]” that the Equal Rights Amendment “is the law of the land.” Biden said:
I agree with the [American Bar Association] and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.
It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.
It’s not necessarily that simple, however, and, as The New York Times put it, “The 28th Amendment is still in limbo.“ As NPR’s Danielle Kurtzleben noted, “Biden is not going to order the [national] archivist to certify and publish the ERA, the White House told reporters on a conference call“ — a final step to formally put the amendment literally on the books and one that the National Archives has said the archivist cannot take as to the ERA.
While there are many ins and outs of the would-be 28th Amendment ratification debate, what Biden did can be used by advocates as a statement from the president in their efforts to get it on the books. But, I think that is it — substantively. Either the ERA was ratified when Virginia came on board in 2020, in which case Biden should have done this back when he came into office and had time to work out how to deal with getting the archivist to publish the amendment, or Virginia (as well as the other two late-confirming states) were too late and their ratification didn’t matter. (And that’s not even getting into the states who purported to rescind their ratification.)
Now, I have seen some asserting that what Biden did — as president — essentially circumvented the need for the archivist to publish the amendment. That absolutely could end up in litigation — through someone claiming, in some instance, the protections of the amendment. In a normal environment, I’d say full steam ahead. But, I think the reality of the current Supreme Court, not to mention the incoming administration, make it very unlikely that that argument would succeed in this moment.
That doesn’t mean advocates shouldn’t try — and shouldn’t make it difficult for those who would, and will, oppose it.
Closing my tabs
This Sunday, here are the tabs I am closing:
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