This is why Trump will fail in so much he wants to do

We begin tonight with Trump’s scum-spray of executive orders, because they are not only in the news but indicative of everything he and his followers get so wrong about this country.

We are a democratic republic with a founding document, the Constitution, frequently described as the supreme law of the land. All other laws, including those passed by the Congress and in the various states, are subservient to the Constitution, which is responsible, we have heard again and again over the past 24 hours, for “the rule of law” in this country.

I am here to argue that we are much, much more than our founding document and the system of government and laws it establishes. This country is a living, breathing organism. It existed even before the Constitutional Convention in the minds of those who dared to dream of what it would take a revolution and a political coalition to bring to life. At an elemental level, the United States is thus comprised of ideas. Some of them have been written down over the last 250 years, but most of the ideas that helped to form this country are still evolving.

We are thus in a constant state of flux. We interrupt this organic process every few years with elections, which put into place at least some new people to contribute to what is already underway. But the elections and the representatives they produce do not stop the constant state of becoming that is our nation and its citizenry. Elections change the cast but not the words of the play or their meaning.

Change continues to take place every day as a matter of what we might call, for want of a better description, the course of human events. It is because we are human that we change and the world changes with us.

All this change extends into every aspect of our personal and national lives. New problems arise. New solutions are sought. There is resistance to change, and change is not perfect when it comes. An injustice comes to exist. There is a correction written into law and put into exercise in physical ways, such as building integrated schools or putting into place polling places that are open to a race of people who were not permitted to vote before.

A disease arrives to disturb and destroy. Some among us get sick and some die. A cure or a preventative is developed and deployed. We move on beyond that disease to a new one and hopefully repeat the process.

One of the ways our systems of government and laws are constantly refreshed is through our courts. With Trump’s executive orders, today we saw the beginnings of the exercise of that system with lawsuits filed by 18 states against Trump’s stated aim of overturning birthright citizenship. It is not normal for a president to seek to overturn a clause of the Constitution by executive fiat, but it is normal for lawsuits to be filed in the courts as a correction.

This will happen again and again in the coming weeks and months. Josh Marshall of “Talking Points Memo” wrote today that lawyers reading the executive orders found them to be largely “sloppy and contradictory, often doing things the authors hadn’t intended.” To which the only response can be, “duh?” Did we expect anything different from Donald Trump.

So, some if not many of Trump’s blizzard of rhetorical desires will fail upon scrutiny by the courts. I am now going to tell you why I think this will happen: Because we are human, so are our laws and our system of government human.

Trump’s mistake, which has become the mistake of the entire Republican Party, is to believe that power is immutable. It is not. You don’t get power forever, and you cannot do with power anything you want to do. This is because the system which yields power to one group or another group exists through respect for precedent and for each other.

Allow me an illustration. I shared the barge on the Hudson River in 1971-72 with my friend and West Point classmate, David Vaught, who had moved to New York to attend NYU Law School. One night as we were driving back to the barge in New Jersey from the Village, Vaught announced that he had figured something out about the law. “It’s like the human body,” he said. “It’s even got a circulatory system and a nervous system.”

It made sense that the law would resemble the body because humans make the laws, Vaught explained. He had been working on a typical first year law school problem – tracing the solution to a legal issue back through the history of court decisions through which it came into being. I don’t remember the case exactly, but I’m pretty sure it was a thorny tort case that presented a seemingly intractable problem: Two people have come to an agreement over some goods that were sold by one and purchased by the other. But then came the details, in this case involving delivery. Who is responsible when goods are damaged in delivery? A contract cannot foresee every eventuality, so at some point, a lawsuit is filed and the courts get involved. Vaught’s task was to trace back to find the root decision that governed such contracts.

He descended down into the pit of the NYU Law Library on Washington Square. It was a time when you still looked up stuff in law books. He would find one case and decision involving transportation by truck from, say, 1920, that would refer back to a previous decision from the 1890’s that had to do with transportation of goods by rail. That case led back further.

Vaught told me as he went through the decisions, he could see not only patterns in the law, but human patterns. The judge who decided an early 20^th Century case had been a clerk for a judge in the late 19^th Century. That judge had had a series of disputes on appeal with a judge who wrote the appeals decisions that overturned the first judge’s decision, until finally a case came along that the first judge won because technology had overtaken the law and X’ed out a series of decisions that involved trains and tracks and who was responsible for laying the tracks that buckled and caused an old accident which birthed the delivery dispute that was at issue. Subtract trains and tracks and enter trucks and roads; change the tracks from privately owned to roads that were publicly built, and the whole structure underlying the series of decisions changes along with it.

In reading the decisions, Vaught said he could see the judges getting upset with each other, especially when one “lost” and his decision was overturned. But Vaught said a thread of respect for each other and for the law and the court system kept producing decisions that advanced the law from one century to another, through the series of decisions that finally resulted in the solution to the issue the case at hand.

I can’t recall exactly how Vaught described the similarity to the human body, although I think he analogized the nervous system to the series of lawsuits themselves and the circulatory system to the bloodstream of language of which legal decisions are comprised. Whatever his exact analogies were, his conclusion stood, that the seemingly dry process of tracking back through densely written court decisions on complex cases involving complex issues held his fascination because he could see the human element all the way through it. Some decisions that resulted along the way were overturned, some led to changes in the way future cases were filed and the different decisions they yielded. The whole system was a moving, breathing, sometimes bleeding organic thing, and it was able to survive because it adapted.

Seemingly from another time and place, that story is just as alive today as it was in 1971. A series of court decisions that are said to “make law” continues to describe the way our system works, how it works, and why. Trump’s mistake, and the mistake of what the Trumpists see as their “revolution,” is that you can’t parachute into a system that has existed for nearly 250 years and simply announce a halt to everything so that a new regime can be put in place by executive fiat. The system is big and old and flexible, so much so that it can absorb whatever craziness Trump thinks he can impose on it. They have already made mistakes that are potentially deadly to their aims. In one of the two transgender orders, the one that seeks to establish just two genders for the purposes of Trump’s government, they defined “male” and “female” as beginning at “conception,” probably as a sop to the religious right that has been obsessed with conception, defining a human being as a single cell on a uterine wall so they could call abortion the murder of that single cell. It won’t wash. Gender is not evident in a fetus for weeks after conception.

Ironically, Trump is on his most solid ground with his 1,500-plus pardons of the January 6 felons because his pardon power is written into the Constitution. What he did was wrong and despicable and what will flow from it will create problems but thankfully, not precedent. A pardon does not influence the law in the way a court decision does because although the pardon power is in the Constitution, it is not part of our system of laws. It is a thing wholly unto itself, and because of this, problems will flow. Just wait until one of the felons Trump has pardoned beats someone to death in a bar fight or is charged with rape or child abuse. It will happen, and the resulting tragedy will belong to the one man who has the power of the pardon, Donald Trump.

We face dark times with Trump in the White House. His powers as the executive go beyond his executive orders. Some of what he has already ordered will have deleterious effects and may not be easily challenged, such as his desire to ban transgender people from serving in the military. The courts over the years have yielded to the executive when it comes to the military and issues of national security, and it may be that they will do it now. But with some 8,000 transgender people currently serving in uniform, the Pentagon will run into real problems throwing so many well-qualified people out of the service. Some are no doubt experts in specialties that cannot be easily replaced. Some have distinguished careers and awards for heroism and service that will make it difficult for the Pentagon to dismiss their years of service and dedication to duty. The practical effects of prejudice will be, as they always are, difficult to ignore and to justify.

And then there is the absolutely amazing thing of Trump giving aid and comfort and power to a lunatic like Elon Musk, who in turn has actually executed the Nazi salute in triumph, or whatever he thinks he’s doing. I think we can count on Musk getting worse, not better, as a public face of Trumpism because it puts a face, and an ugly one, on Donald Trump’s desires as president. Musk in his arrogance and drug-fueled mania will make more public mistakes until Trump tires of having to share the spotlight with him and explain him away. All of this is good for those who stand in opposition to Trump because it connects Nazism to his movement, and not through a connection to or allegation from Democrats and the Left. Musk is Trump’s animal, or Trump is Musk’s. At this point, with the right arm of a Nazi salute in the air and caught on camera, who is worse than who almost doesn’t matter.

So, as grim as prospects seem on this second day of the Trump presidency, do not despair. There is much to be done, and with the lawsuits against Trump’s attempt to amend the Constitution by fiat, we have already begun to fight. We have a nation to defend that we love. The fact that Donald Trump is incapable of loving anything other than himself will be deadly to his cause.