Thursday, October 10, 2019

Part I

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How Do You Know When There Is a Constitutional Crisis? The Impeachment Showdown Between the White House and Congress Progresses

Over the last 48 or so hours, we have heard the term “constitutional crisis” over and over again with reference to the United States of America, and in particular, a showdown between the executive branch and the legislative branch— even more specifically, a showdown between the Trump administration and the Democratic leadership of the House of Representatives. This is a big story. For one thing, you have the story of the language that’s being used here, the language of a constitutional crisis. We need to state at the beginning that if you have this language used too often, it is not only diluted, but it is confusing. Eventually, it’s a bit like crying wolf. Proverbially, no one takes you seriously when there is a constitutional crisis.

How do you know when there is a constitutional crisis? It’s when the government is not working according to the Constitution, there’s a general breakdown. Just to be extremely clear, and Americans should be very thankful about this, we are not facing that kind of constitutional crisis. Just consider the fact that right now, we are in the midst of an already energetic presidential election cycle. Just consider the fact that right now, the United States Congress is operating and so is the executive branch. Much of the headlines over the last several days has had to do with the new term of the United States Supreme Court. Our federal system is still working. The Constitution is still operational. But when you have this kind of language, it’s a signal that there are some very important issues that are at stake, and those issues were made very clear in a message that was sent by the president of the United States through his White House counsel to the Democratic leadership of the House now conducting an impeachment inquiry.

As a team of reporters for the Wall Street Journal reported, “The White House said it won’t cooperate with a House impeachment probe, and the administration blocked the deposition of a U.S. ambassador seen as central to the Ukrainian controversy, marking clear battle lines in the fight between President Trump and Democratic law makers.” The story continues, “House committees responded by issuing a subpoena to Ambassador Gordon Sondland,” he’s the US ambassador to the European union, “after the State Department on Tuesday directed him not to appear for his planned testimony.”

So one of the things we’re looking at right now is the fact that in the House of Representatives, there is now an impeachment inquiry concerning Donald J. Trump, the president of the United States. Article I of the U.S. Constitution establishes that impeachment is the sole means of removing a president from office constitutionally. Clear provision is made for the House of Representatives to issue a writ of impeachment, and then it comes down a trial in the Senate. A president is only removed from office if after being impeached in the House of Representatives, the president is removed by a majority vote, basically the senators being the jury, in the United States Senate.

But the Constitution in Article I offers no explicit guidance as to how the House is to conduct any process of impeachment, nor how the Senate is to conduct any process of trial. And where the Constitution is silent, both chambers of the United States Congress have the right to establish their own procedures, but that doesn’t mean that the procedures are right, nor that they will withstand scrutiny.

The president, through his White House counsel, issued an objection very clearly in this letter on Tuesday stating that under the leadership of the Democratic majority in the House, the rights even of Republican members of the House of Representatives were being denied. The Democratic members of the House have the right to issue subpoenas and to subpoena witnesses, but that is being denied to Republican members of the House. This is one fact cited by the White House counsel in arguing that the current inquiry of impeachment in the House of Representatives is illegitimate, and thus the president will not cooperate with it.

There’s another basic problem, and that is also in the background here, and that is the fact that the House of Representatives has not voted to undertake an impeachment inquiry. That inquiry is basically now taking place through House committees under Democratic leadership, but there’s a huge question as to why the speaker of the House of Representatives, Nancy Pelosi, has not submitted a motion to the entire House to authorize an impeachment inquiry. Why is that important? It’s because that would put every single member of the House of Representatives on the line as a matter of accountability as to whether or not every member of the House of Representatives believes that an impeachment inquiry is appropriate and called for. The failure to take that action, and that failure is entirely assignable to the speaker of the House of Representatives means that Congress is now undertaking, the House of Representatives is now undertaking an impeachment inquiry without ever having voted to do so.

Can it do so? Well again, Article I of the Constitution is silent on the question, but it would certainly make sense that such an inquiry would have more credibility if those who are pressing for it in the majority party actually put their names to a vote. And likewise, just as a matter of the historical record, the names would be assigned both yay and nay on such a proposal. That would be an issue of credibility it’s lacking now. But what we need to understand right now is that the letter sent on Tuesday by the White House counsel does represent a direct challenge to the Democratic leadership in the House as to how they will conduct an impeachment inquiry. This could go in several different directions. For one thing, the House leadership could decide to add this particular letter and act by the administration as a new issue of the impeachment inquiry, or it could lead to some kind of negotiation between the White House and the Democratic leadership in the House. It’s not clear where this is going. It can’t be clear right now, because this is history in process, and this is an ongoing matter of confrontation between the White House and the House of Representatives.

Here’s where intelligent observers need to keep a couple of issues very much in mind. First of all, there are two different levels to what’s going on here. There is the public right up front. It is a matter of gaining the headlines and trying to gain the initiative and the argument coming from both the administration and the Democratic leadership in the House. But there is behind that, a certain dance of negotiation that takes place, which means that tomorrow’s headlines could be extremely different than the headlines you’ve seen today. One of the problems in America right now is that given our 24/7 news cycle, you have people who are going to declare that this is the new reality, this is a constitutional crisis, but the issue could be changed utterly just over the next several hours.

It’s also important to recognize that right now, both sides in this standoff are using rather absolutist language. The president through his counsel is indicating a largely absolutist understanding of executive power and executive authority. He’s basically saying that the White House simply will not cooperate with the impeachment inquiry. On the other side, the Democratic leadership in the House is also operating with its own rather absolutist claims concerning what Congress can do, has the authority to do, what it can demand, whom it can subpoena and demand to appear before Congress. And remember that absolutism also applies to the fact that Republicans in the House are rather absolutely cut off from influence in the entire process right now.

One final observation on the headlines concerning the impeachment inquiry, just keep in mind, ever in mind, that there is absolutely no way to remove politics from any dimension of these developments. Hypothetically, Americans might think that a matter like an impeachment inquiry could take place in a dispassionate, nonpartisan, nonpolitical context, but that’s nonsense. And the founders of this nation would have understood it to be nonsense, because the government is itself political, and it can never be nonpolitical. Politics in its essence is the organizing of society and the decision making process about what will be the law and what will not be the law, what will be required and what will not be required, which policies are going to be put in place, which budget is going to be approved, and yes, who will and will not be impeached within the U.S. House of Representatives.

That is intensely political, made clear by the fact that just yesterday, the former vice president of the United States, Joe Biden, currently running for the 2020 Democratic presidential nomination, came out, as the headline said, for the first time calling for President Trump’s impeachment. What makes that immediate headline news? It’s not the fact that he is a former vice president of the United States, it is that he is a current candidate for the Democratic nomination for president of the United States. That’s politics, and it works on both sides of the partisan equation. That doesn’t mean that everything a politician says is either true or untrue. It simply means that everything a politician says is political.

Part II

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The Missing Backdrop to the NBA and China: Criticism and Freedom of Speech in Democracy and Totalitarianism

Next, by worldview analysis, one of the most interesting recent headline stories has to do, of all things, with the NBA, the National Basketball Association and the nation of China. The story broke over the weekend. As Sopan Deb reported for the New York Times, “The general manager of the NBA’s Houston Rockets has touched off a firestorm in China after expressing support on Twitter for pro-democracy protestors in Hong Kong, putting,” as the New York Times said, “the professional basketball league at odds with its largest and highest priority international market.” The story goes on to say, “The league’s marquee franchise, the Los Angeles Lakers is set to play two exhibition games in Mainland China this week.”

The background of this has to do with Daryl Morey who is the long time general manager of the Rockets. He shared an image on Twitter on Friday that read, “Fight for freedom, stand with Hong Kong.” As the Times said, “a reference to the protests that have raised for months.” Then the paper tells us the Rockets have been training in Tokyo ahead of a two game exhibition series against the Toronto Raptors in Japan this week. “The team also has a long history with Chinese fans who followed Yao Ming’s career with the franchise.” Here’s where the story turns very intense, “Within hours, the owner of the Houston Rockets, Tilman Fertitta, rebuked his general manager also on Twitter, in a post that said, ‘Listen, D. Morey does NOT speak for the Houston Rockets. Our presence in Tokyo is all about the promotion of the NBA internationally, and we are NOT a political organization.'”

The general manager had already deleted his post, but as the press have reported, the fallout was already falling just about everywhere on the NBA and especially in China. As the Times says, “On Sunday, the Chinese Basketball Association announced that it was suspending cooperation with the Rockets. The president of the CBA,” that’s the Chinese Basketball Association, “is Yao, the Hall of Famer who starred for the Rockets from 2002 to 2011. According to China Global Television Network, a state run Chinese outlet, several Chinese companies including sports brands denounced Morey and said they also would pause partnerships with the Rockets.

So before going further and looking at this issue, let’s just remind ourselves what we’re looking at here. The National Basketball Association is a huge business in North America, in the United States, but also increasingly around the world, and China is the biggest prize of all for the NBA. China offers the greatest opportunities for the business expansion of the franchise, and furthermore, it offers an almost unbelievably large fan base with a lot of economic power. The problem is, of course, that China is run by the Chinese Communist Party, and China is a technology driven, high surveillance, totalitarian state, and it does not abide anyone who will not toe the party line.

Now, you would think that that would have most to do with people in China, but as it turns out, the Chinese Communist Party is extending it to requirements and over pressure placed upon corporations and nation’s organizations all over the world. Just ask airlines who have found themselves in big trouble in China with their landing rights and all kinds of economic leverage threatened if they do not change their maps in order to indicate the disputed territories are actually under the sovereignty of Mainland China. Or consider the fact that we’ve already seen major American and other Western corporations cave in pressure from the Chinese Communist Party refusing to take stands on issues even in the United States that might be contrary to the interest of the Chinese Communist Party.

But now it’s the NBA on the line, and as the Times said on Saturday, “The timing could scarcely be more awkward for the NBA, which has promoted itself as a supporter of free speech and political expression, but is focused on further cultivating an audience in China and expanding its business relationships there.” The story continued to unfold with interesting twists and turns since the weekend.

As the Wall Street Journal reported on Monday, “The NBA has positioned itself as the most progressive of the major American sports leagues by encouraging free speech and spreading basketball around the world. Now,” said the Journal, “those forces have collided and placed the league in the eye of an international crisis.”

Now, that is something of an understated lead in this article, because when the Wall Street Journal says that the NBA has positioned itself as the most progressive of the American sports leagues, that’s actually a statement about the cultural and moral and political polarization inside the United States. That turns out to be an extremely key issue. The NBA has paid a very small price for all kinds of political stances taken by its players and its management over the course of the last several years related to very divisive issues in the United States of America. It has paid, evidently, a price it’s willing to pay, a small price for that kind of reputation. But in China, it’s not going to be a small price, it’s going to be a giant price.

As the Journal tells us, “Chinese sponsors pulled their money from the franchise, that is the Rockets. Chinese broadcast partners said they wouldn’t air Rockets’s games, and the Chinese Basketball Association suspended its ties with one of the NBA’s best teams.” The Communist Party’s official newspaper published “a searing editorial,” as the Journal tells us, “criticizing Morey’s tweet, and the Chinese consulate general in Houston said it was ‘deeply shocked,’ and,” as the Journal said, “implored Morey to correct the error and take immediate concrete measures to eliminate the adverse impact.” That’s the kind of language you should expect from the totalitarian regime of the Chinese Communist Party. Adverse impact here means adverse impact to the political aims and the totalitarian reputation of the Chinese Communist Party.

Sources close to the party have demanded actually the general manager be fired. You’re looking at overt pressure, absolutely public pressure brought by a totalitarian regime in China against a franchise of the NBA in Houston. That’s the world we’re living in now.

So why would the NBA care so much? Well, again, in the Journal, understanding the business world gets right to the bottom line, “There are billions of dollars at stake for the NBA. The league has long viewed China as the engine of future international growth and spent years courting the country’s massive audience. It often boasts about the country’s basketball population of 300 million players and nearly 500 million people in China watched the NBA on Tencent’s streaming platforms last season. The deciding game of last year’s final set a record for the largest streaming audience for an NBA game in China.”

Adam Silver, the commissioner of the NBA, has been a staunch proponent of its rather liberal positions in the United States, and eventually, but only eventually, he spoke out on behalf of the general manager of the Rockets and his free speech rights as well. As Marc Stein of the New York Times reported, “What began as mostly a China versus Houston conflict morphed into a full blown China versus NBA battle after Silver at a news conference reiterated that the league office would not punish or sensor Morey, no matter how badly the NBA’s China business partners want that to happen.”

So over the last several days, we’ve seen headlines such as, “NBA Hong Kong tweet rankles China: The NBA pays a price chasing riches in China.” But then came yesterday’s Wall Street Journal with the headline, “Beijing steps up its fight with NBA over Hong Kong tweet.”

But here’s another very interesting dimension. In this article, the Wall Street Journal points out that the NBA might be pressing back a bit on China, because even as China’s Communist Party has its leverage, the NBA has its own leverage as well. That is to say that the communist regime in China has an interest in having the support of its people, and angering 300 million Chinese people in a fight with the NBA might have a cost to the Chinese Communist Party as well. So, we’re looking at a classical standoff here, and even as we saw this in the impeachment issue, we now see it, of all things, in the issue between the NBA and the Communist Party in China. It’s not clear where this is going to go, but it does remind us that there is nothing that comes without a cost.

And even as the NBA has moved in an increasingly publicly leftist direction in the United States, it has run into a conflict that’s quite different in China. But in worldview analysis, here is the biggest issue we need to think about, why has the price been low in the United States but so high, apparently, in China? It has everything to do with the nature of the government. In the United States, every single citizen is free to express his or her opinion and to criticize openly everyone from the president of the United States and the speaker of the House of Representatives all the way down to their local city commissioner, or for that matter, the dog catcher hired by the city working in the community. The reality is that free speech and a government of ordered liberty in a constitutional Republic is a very precious thing.

That’s why the NBA has paid a low price, because there are Americans who agree with the statements made, and there are Americans who disagree, and both are free to express themselves, and life goes on. But I’ve been frustrated by the fact that even in the United States, I have not seen a major national news source that has pointed to the fact that this points to the conflict between democracy and totalitarianism. A totalitarian state does not allow dissent. No Chinese citizen is free to criticize the chairman of the Chinese Communist Party, nor for that matter, even the most minor of local authorities. We also have to recognize that there is no regime so paranoid as a totalitarian regime, because by definition, it claims the authority to control the totality, every dimension of life. It cannot abide even the slightest crack in that totalitarian argument. It can’t abide even the most innocuous criticism.

Sadly, we have seen Western company after company cave under Chinese communist pressure. This face-off between the NBA and China isn’t over, but as we should understand, there are far deeper issues here than sports.

Part III

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What Exactly Does ‘Sex’ Mean? Supreme Court Hears Arguments on Question of LGBT and Civil Rights Act

Next, on Monday’s edition of The Briefing, we looked at the fact that this week marks the beginning of the new term of the United States Supreme Court. And on Tuesday, the court held oral arguments in a pair of cases having to do with the question as to whether the Civil Rights Act of 1964 is to be interpreted as offering a protected categorization to gay and lesbian and bisexual and transgender Americans, especially when it comes to matters of employment.

Now, as we saw in the anticipation of those oral arguments, the case being made by those who are arguing for the LGBTQ side, their argument is that the word “sex,” when you have the Civil Rights Act of 1964 saying that there may be no discrimination on the basis of sex, now refers to the entire gamut covered by LGBTQ, and presumably, everything that would then follow. But the retort to that is that if you go back to 1964, it’s absolutely ludicrous to argue that Congress had any such intention when they framed the Civil Rights Act.

But here’s where the oral arguments revealed, as those arguments often do, a couple of points that had not been raised previously. Most importantly, they came from Justice Samuel Alito Jr. and also from Chief Justice John G. Roberts Jr. What were the issues?

Samuel Alito got right to it, making the point that if those who were arguing for the inclusion of LGBTQ in the 1964 act had their way, the Supreme Court might as well just incorporate what is known in the House of Representatives as the Equality Act. That is a huge insight. The Equality Act has been brought in the House of Representatives by Democratic leadership, and it is an explicit piece of legislation that would include LGBT within the civil rights protections of the Civil Rights Act. The point is Congress hasn’t taken such action. It didn’t do so in 1964, it hasn’t since. It hasn’t as of today.

Justice Alito got right to the point, what those who are pressing the LGBT argument are doing in this case is trying to force the Supreme Court to do what Congress hasn’t. But the point is Congress has the power to do this, and really only the Congress has the power to do this, and the Congress hasn’t done it. That means those who are making this argument are trying to win before the Supreme Court what they could not win in Congress. It’s the same pattern we’ve seen with abortion in the Roe v. Wade decision in 1973 and with the legalization of same sex marriage in 2015. In both cases, that could have been done by Congress, but it wasn’t. What does that tell you? It tells you that Congress knew it didn’t have adequate political support to legalize abortion in 1973, so it didn’t, but the Supreme Court did. And then in 2015, Congress knew that it did not have support then for the legalization of same sex marriage, so Congress did not act, but once again, usurping authority, the Supreme Court did. Justice Alito is absolutely right. That is exactly what is being demanded right now.

The point made by the chief justice was very clever, even if less central to the case. It comes down to exactly how all this is supposed to work. The chief justice raised the question, I’m paraphrasing him here, as to whether an individual identifying as a transgender woman, and then according to the claims of the LGBTQ activists, having the right to use a women’s bathroom, whether that individual would then be allowably restricted from using the other bathroom. Basically, the chief justice of the United States was asking the question, how, even if you concede the arguments, is this actually supposed to work? And the point we’ve made over and over again on The Briefing is it won’t work, because it can’t work. This is a revolt not only against reason, it’s a revolt against nature and creation. It won’t work.

But one other extremely important issue arose in the oral arguments. I mentioned on Monday morning that there are those on the left arguing that conservative justices following a strict constructionist or textualist understanding of the constitution are supposed to be reading the text of the law and not the intention of the law. But what came up on Tuesday was an even more fundamental point, and that is the meaning of words. That’s where Christians need to recognize, we really do believe in the dignity and the meaning of words.

The point is this, the word “sex” in the Civil Rights Act of 1964 plainly didn’t mean what is now being claimed as the meaning of the word “sex.” It is the same word and yet it’s not. Arguing that Congress in 1964 meant what modern activists mean now about sex is just not only implausible, but intellectually dishonest. But as we understand, that’s true not only of what they say now about sex, but what they mean.