I dissent. So would the Founders.

Also, a big announcement from the Iowa Writers Collaborative

Photo by Anthony Garand on Unsplash

In its decision granting broad immunity to presidents from criminal prosecution, the US Supreme Court said Monday our federal government’s chief executive needs to be shielded from the law in order not to be chilled from taking “bold and unhesitating action.”

God forbid, they aren’t bold. After all, bold and unhesitating action wrought some of our country’s most glorious decisions:

• The Iraq War.

• The Bay of Pigs.

• World War II internment camps for American citizens of Japanese ancestry.

Government decision-making is littered with examples of policymakers rushing to judgment out of fear or ignorance or some other impulse that caused them to miss the warning signs and instead plunge headlong into disaster.

Maybe the ideal we should seek in the presidency is “judgment, restraint and reason,” not “bold and unhesitating action.” Maybe what we should prize is the kind of caution and discipline that many citizens exercise every day—if not through good sense, then by the constraints of the law.

The court majority said a president’s official acts are to be given “presumptive” if not “absolute” immunity. It insists “no man is above the law,” but then spends 40-some pages explaining why the president is “no man.” Justice Clarence Thomas even bluntly declares the president’s power to ignore the law is—in fact—the law.

Look, I’m not suggesting the poor decisions listed above should have been subjected to criminal prosecution. Hardly any rational person would. The truth is, no president in the 250-year history of this country was ever prosecuted for any of his decisions. And Trump is not being prosecuted because of some controversial domestic or foreign policy choice he made during the four years of his presidency; he is being charged because he corruptly tried to hold onto the office of the presidency after the American people voted him out.

In no sane world would Trump’s actions be considered meeting his constitutional obligation to “take care that the laws be faithfully executed.” As the Washington, D.C., circuit court of appeals noted, Trump “allegedly injected himself into a process in which the president has no role — the counting and certifying of the Electoral College votes.”

Yet, the Supreme Court majority says the need for a president to be “bold and unhesitating” in the exercise of his office excuses at least a part of his attempt to overthrow the election. It then erects rules that make it more difficult to call Trump to account for the allegations that remain.

Justice Amy Coney Barrett separated herself, in part, from the majority’s overbroad attempt to hamstring prosecutions. In a separate opinion, Coney Barrett cites Trump’s “alleged attempt to organize alternative slates of electors,” and said those acts are “private and therefore not entitled to protection.” Much like the court of appeals’ opinion on elector slates, she wrote that while the Congress has a “limited role in that process … the president has none.”

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In Federalist #77, Alexander Hamilton wrote the Constitution conferred on the presidency “all the requisites of energy,” but also considered the need for “responsibility.” He wrote that in addition to the natural limitations imposed by elections and the possibility of impeachment a chief executive was also constrained by the potential for “subsequent prosecution in the common course of law.”

The founders would be aghast at what the court did to our Constitution this week.

They, like so many of us, would dissent.

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I am approaching the two-year anniversary of Along the Mississippi, and it has invigorated me and given my long career in Iowa journalism a new life. If you value this work, please consider upgrading your subscription to paid. Contributions help to make this newsletter possible. Thanks for your consideration.

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Doling out property rights

Two years ago, I wrote a column for the Quad-City Times arguing that Iowa Gov. Kim Reynolds and Republican state legislators think of themselves as the exclusive distributors of freedom in Iowa.

One of the examples I cited was the fight over whether the state would give Summit Carbon Solutions the right to take private land through eminent domain for the 2,000-mile pipeline it is planning to build to carry liquified carbon dioxide from ethanol plants to North Dakota.

A little more than a week ago, the Iowa Utilities Board ruled in favor of the company, and the Iowa Capital Dispatch reports Summit is already seeking to expand the pipeline by another 341 miles. The original proposal encompassed approximately 690 miles.

Cheryl Tevis, a member of the Iowa Writers’ Collaborative, summed it up ably and succinctly recently in her excellent newsletter, “Unfinished Business," writing:

I wasn't surprised by this week's IUB decision to approve the Summit Carbon LLC pipeline across Iowa. Another power grab, this time by a private "clean energy" company with deep ties to the ethanol industry. The end result is the same: taking property rights from landowners. Once again, the decision was made by a handful of unelected individuals appointed by the Governor, who applied her thumb to the scales of power. Former Governor Branstad, a senior policy advisor to Summit, added another level of government pressure.

Perhaps you read the hollow comments issued by House Speaker Pat Grassley regarding the need to "comprehensively review and update the state's eminent domain laws". As Iowans, we all know the time to close the barn door is before the cows get out. The Iowa legislature could have played a role in preventing this shocking assault on property rights; the House passed legislation, but the Senate refused to take it up. Eminent domain reforms also stalled in 2015.

During next year's legislative session, look for calls to tighten eminent domain laws and to return the power to property owners that was so fundamental to our Founding Fathers. However, what we've seen in Iowa is many government officials working hand-in-glove to elevate the power of businesses (private sector) over people. The powers of local, state, and federal government must be used to balance the excesses of the private sector.

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She's absolutely right. In a state that has always prided itself on honest and commonsense government, too often under the Republican trifecta in Des Moines, state government has come to resemble a dispensary of political and commercial favors.

Recall for example, the attempt by the legislature in 2020 to help in-state utilities with a protectionist law giving them first shot at the construction and maintenance of Iowa's electrical infrastructure. The state Supreme Court blocked the law last year, calling it “crony capitalism.”

Rather than being chastened, some Republicans were enraged that the court wouldn’t just go along.

Then, of course, Republican legislators and the governor also passed a law that spends hundreds of millions of taxpayer dollars to reimburse families for their private school expenses—even as the state continues to shortchange public schools where nearly nine out of 10 Iowa schoolchildren go to classes.

This isn't the same Iowa where I grew up, and the Iowa Writers' Collaborative is fortunate to feature writers like Cheryl Tevis to call out this dispiriting trend. I highly recommend "Unfinished Business." It is consistently thoughtful and centered in Iowa.

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An announcement

As I noted above, it has been nearly two years since I started this newsletter and joined the Iowa Writers Collaborative at the invitation of Julie Gammack, who is always finding new ways to give Iowans fresh and provocative voices to illuminate what is happening in our state.

To that end, I share an announcement from her:

I am thrilled to announce the formation of the Iowa Writers’ Collaborative Politics Panel, comprised of political analysts who are members of the collaborative, along with Kathie Obradovich, Editor-in-Chief of Iowa Capital Dispatch.

Political commentators with a long career in broadcast news, political reporting and commentary, will discuss what is going on in Iowa today. The podcast will be produced twice a month, and then in September through November, it will be held weekly.

It will be supported by generous Benefactors.

I am honored to join the Politics Panel with The Iowa Writers Collaborative, which will kick off this month.