Our Constitution In Tatters

Those who think the Constitution is the bedrock of our democracy were aghast when this week
the Supreme Court decided there is nothing wrong with Immigration and Customs Enforcement (ICE) agents practicing racial profiling, seizing anyone who looks Latino, speaks Spanish, and appears to work a low wage job, and detaining them for deportation.

It is yet another instance of either government or the Court chipping away at the grand old document, so we thought to take a look at some of the other provisions that have been ignored or transgressed, beginning with this week's:

Racial profiling has been the practice from the beginning of Stephen Miller's demand that ICE round up 3,000 people a day in a campaign that discards any claim that the Trump administration is only going after "the worst of the worst". The agency has shown profiling in Los Angeles by targeting businesses where Latins find jobs — hair salons, lawn care, car washes; at Home Depot parking lots where they gather mornings to find day labor jobs; and most cynically snatching at courthouses people who had come to fulfill their legal obligation to attend immigration proceedings. The Supreme Court seems not to have made the connection with the Fourth Amendment.

One could call this clause the most thoroughly overridden of them all, for resulting in more guns than people in the United States. Any tie-in with a militia being a requirement for arms possession was tossed aside long, long ago, with not even military continuous-fire AR-15 assault rifles, designed to kill as many of an enemy as possible, banned from even the mentally troubled buying.

In the U.S., the AR-15s must be semi-automatic, requiring a trigger pull for each shot, but the size of the magazines that carry as many as 30 bullets is unrestricted. Last year, the Supreme Court overturned a ban on "bump stocks" that effectively convert the rifles into the military's rapid-fire weapons. The device was used in the 2017 deadliest mass shooting in U.S. history, when a 64-year-old from a 32nd floor window of a luxury suite fired more than 1,000 rounds in 11 minutes into a crowd of concert-goers, killing 60 people and wounding at least 413 others.

The Court reversed a ban on bump stocks ordered by the Trump in his first administration in reaction to the Las Vegas killings. Written by Justice Clarence Thomas, the majority opinion said that bump stocks did not transform semi-automatic rifles into illegal machine guns because each trigger it pulled in rapid succession still only releases one shot. Five others at the conservative side of the bench, perhaps fearful of all the gun fanatics out there, agreed, making it a 6-to-3 decision.

Heads of state and foreign government emissaries are wont to come bearing gifts when meeting with U.S. presidents and dignitaries, and that prompted this clause as a safeguard against buying favor. But the gifts typically are not worth much more than a few hundred dollars. That was topped by many million percent when Trump accepted a 13-year old customized Boeing 747-8 airliner from the Qatari former prime minister, Sheikh Hamad bin Jassim, worth an estimated $400 million. To work around the gift issue, it is the Defense Department that officially has accepted the plane. The aircraft is undergoing refurbishment that could cost as much as $1 billion estimates Forbes — at taxpayer expense, of course. It is to be turned over to Trump's presidential library when and if he leaves office, and he will be free to use it for personal travel. So much for the emoluments clause.

President Trump was impeached twice: first for abuse of power by withholding congressionally appropriated funds for Ukraine to extract from President Zelenskyy the "favor" of investigating rival Joe Biden in advance of a coming election, and second for attempting to overthrow the government on January 6, 2021, in our history's most blazon act of treason.

In neither case was he convicted by the Senate, demonstrating that, because a political party won't vote to remove its own — every Republican except Mitt Romney voted for acquittal — a two-third vote has become impossible. So impeachment and conviction is a nullity.

The Colorado Supreme Court affirmed rulings by the state's lower courts that for having inciting an insurrection, Donald Trump could not be on the ballot in Colorado. Section 3 reads as self-executing — engage in insurrection or rebellion and you cannot be president, and that's that — just as the due process section of this same amendment has always been treated as self-executing.

And yet, the Court ruled that Congress must decide whether there has been an insurrection and whether the amendment should prevail. That, of course, did not happen nor would it happen. Section 3 is effectively voided; nothing stops an insurrectionist from running for high office after all. This is the Supreme Court practicing lawfare.

Part of President Trump's desire to purge the United States of brown-skinned people is to deny citizenship to those born here if parents are undocumented and of a certain hue. When a case reached the Supreme Court that challenged a nationwide injunction of a lower court against the Trump administration going forward with its intent, the high court instead used the case to do away with lesser courts declaring nationwide injunctions. It extraordinarily did not deal at all, then and there, with the irrefutable language of the amendment conferring birthright citizenship, leaving it for consideration at some later date as if there is something to consider. In the meantime, Trump is free to proceed.

So the cross-out above may be removed on some future date if the Supreme Court still honors its mandate to enforce the Constitution, but the six conservatives seem to want to ruminate on the question as if the Constitution is just a set of suggestions.

Immigration law holds that persons who are apprehended having just crossed borders are not entitled to any process and can be deported on the spot. But the Trump administration has from the outset of its purge made that the practice for immigrants deep in country and who have lived here for years, raised families, worked and paid taxes, sweeping them into detention without any due process. The Supreme Court ruled that there must be a process where detainees have the opportunity to be heard, to state their case, possibly to prove that they are U.S. citizens. At the rate ICE is collaring people, there is no agency to monitor what is happening to people by the thousands, nowhere near the number of deportation judges to assure that Fifth Amendment due process is occurring.

Only five major military conflicts have garnered congressional Declarations of War: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. The Korean and Vietnam Wars occurred without formal congressional declaration. (President Truman initially called Korea a "police action"). In 1973 Congress passed the War Powers Act, which required campaigns lasting more than 60 days (90 if an extension is granted) to be authorized to use military force.

Just a week after 9/11, Congress pass the Authorization for Use of Military Force (AUMF) that granted the president the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11 attacks, or who "harbored such organizations or persons".

The authorization was aimed specifically at al Qaeda but has been twisted around ever since to to justify other military actions. Business Insider tallied use of the AUMF to justify military deployment in Afghanistan, the Philippines, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq, and Somalia. To this can since be added the B2 bombings of Iran and now the killing at sea of unproven drug smugglers from Venezuela.

Between 2018 and 2020 alone, U.S. forces initiated what they labeled "counter-terror" activities in 85 countries. The 2001 AUMF has been used to launch classified military campaigns in at least 22 of those countries.

There has been no congressional oversight for decades.

The Trump administration shipped over 250 alleged members of the Venezuelan prison gang Tren de Aragua to a notoriously brutal prison in El Salvador to be imprisoned for life, with no due process to determine whether individuals were actual gang members or had committed crimes. Some released said they had been tortured. Trump has said he approves of torture.

The Supreme Court gave the go ahead to the Trump administration to deport people to countries of which they are not citizens, the particular case being eight alleged gang members who were to be deported to South Sudan, a region shredded by war and suffering acute starvation. This court's rightist majority seems in its lost morality to think cruel and unusual is fitting for some.

It is troubling that it is so many of the vital rights and principles of the Constitution that have been badly ignored or compromised while nothing has been done in the way of amendments since 1992 to fix what ill fits the country a quarter millennium after the Constitution's adoption, and that, the Twenty-Seventh Amendment, dealt only with Congress members' paychecks.