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Justice Scalia on what it means to be an American

In writing this piece for The Weekly Standard, I was reminded of Scalia’s eloquent concurrence in the 1995 Adarand case, which concerned the constitutionality of race preferences in government contracting: “To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.”
Published last week, Scalia Speaks is a collection of the justice’s speeches edited by his son Christopher and the lawyer Ed Whelan. The book has six parts, the first of which is “On the American People and Ethnicity.”

I was surprised that the book begins with speeches on those topics, instead of something on the law. But on second thought, I saw the logic: Scalia was an American of Italian heritage before he was anything else, and he gave a lot of thought to what it means to be an American. His essential point is this:

“What makes an American . . . is not the name or the blood or even the place of birth but the belief in the principles of freedom and equality that this country stands for.” A belief, no less. This is not exactly how peoples have been “made” over time, with blood and place of birth the usual criteria for determining who is what.

Scalia tells an audience of Italian heritage that they can be proud of it—“as the Irish can of theirs and the Jews of theirs—without feeling any less than 100 percent American because of that.”

Scalia sees America as exceptional: “One of the strengths of this great country,” he tells an audience, “one of the reasons we really are a symbol of light and hope for the world, is the way in which people of different faiths, different races, different national origins, have come together and learned—not merely to tolerate one another, because I think that is too stingy a word for what we have achieved—but to respect and love one another.”

This is Scalia’s rendering of the “melting pot,” with people of different faiths and races included, and a bit of an almost Bushian preachment about loving one another added in. Scalia is less the realist in that sentence than a positive thinker.

The deeper thought that this part of the book occasions is that the American people are still conducting their unique experiment in constitutional self-government. It has survived so far.

Some Americans More Equal Than Others

"We will support you today, tomorrow and the day after," President Donald Trump promised those devastated by Hurricane Harvey. "When one part of America hurts, we all hurt. When we see neighbors in need, we rush to their aid. We don't ask their names or where they're from. We help our fellow Americans every single time. This is the spirit of America," he said way back on Sept. 1. But that was then, and the Americans in question were mostly from Texas -- a state that had voted for Trump in the 2016 election.

On Thursday, he had a very different message to 3.4 million other Americans, more than 80 percent of whom have no electricity and many of whom have no access to potable water. Many of their homes and businesses were destroyed, and many can't get to work because so many roads are still unpassable. "We cannot keep FEMA, the Military & the First Responders, who have been amazing (under the most difficult circumstances) in P.R. forever!" Trump tweeted angrily, just three weeks after the worst disaster to hit Puerto Rico in history. Trump did what he's best at doing -- cast blame on others: "Electric and all infrastructure was disaster before hurricanes. Congress to decide how much to spend," he tweeted as the House was preparing to vote on a $36.5 billion aid package.

Let's be clear here. President Trump doesn't really consider Puerto Ricans Americans. And judging from the more than 30,000 likes his tweet received (and that was just the initial number immediately after the president tweeted), there are many in his base who don't consider them Americans, either. They are the same people, I'd bet, who don't think children born in the United States to undocumented immigrants are Americans, despite the 14th Amendment, Supreme Court rulings and the fact that the right to citizenship by birth on American soil dates back to Colonial times.

The Constitution declares that all people are equal, but this president seems to believe what the pig Napoleon said in George Orwell's "Animal Farm": "All animals are equal, but some animals are more equal than others."We can have a healthy debate over the status of Puerto Rico. Should it become the 51st state, which has been the position of the GOP for many years? Should it remain a U.S. territory? Or should it be given its independence? The people of Puerto Rico periodically vote their preference, most recently in June, when 97 percent opted for statehood (though less than 1 in 4 registered voters participated in the largely symbolic vote). In plebiscites prior to 2012, pluralities voted to maintain their commonwealth status. But only Congress can decide. The Constitution gives Congress sole authority to decide the fate of U.S. territories, which Puerto Rico became when it was acquired after the Spanish-American War in 1898. "The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States," declares Article 4.

But for now, Puerto Rico is part of the United States. Puerto Ricans are Americans, whether born on the island or on the mainland or anywhere else in the world, provided at least one of their parents is Puerto Rican. They are U.S. citizens, period. And they deserve to be treated as such by their fellow Americans. But most of all, they deserve to be treated as such by the president of the United States.

Of all the despicable things Trump has done since he announced his campaign for the presidency and assumed office Jan. 20, the president's words on Puerto Rico may be the worst. Trump has decided that he is not president of all the people and that he has no desire to be. In Trump world, you are for him or against him, no matter what he says or does, and if you fall in the latter camp, he's not your president. Don't expect him to care about what happens to you. It's your fault. You should have been with him from the beginning. Then he'd be with you. Maybe. Unless he thinks there's an advantage in abandoning you, as he has with some of his faithful aides.

Trump's tweets and threats are un-American. We are better than this. A Texan is no more American than a Puerto Rican -- and both equally deserve the help of their fellow citizens when they are in need, for as long as they need it.

Two Down, One to Go

Last week the Federalist Society’s Regulatory Transparency Project released this paper prepared by its “Race & Sex Working Group” (love that name, and I’m proud to be a member of it). The paper critiques three areas of Obama administration overreach by the Department of Education’s Office for Civil Rights: transgender bathroom and locker room access under Title IX; investigations by universities of sexual-assault and harassment claims, also under Title IX; and requirements that school-discipline policies not have a “disparate impact” on the basis of race, under Title VI of the 1964 Civil Rights Act.

To its credit, the Trump administration has taken action on the first two, early on revising the Obama administration’s approach on transgender issues, and earlier this month announcing it would rescind the Obama-administration guidance on campus sexual-assault procedures.

Here’s hoping that it will act soon with regard to the third matter, too. CEO board member Jason Riley had an excellent column in the Wall Street Journal last week as well, and the Race & Sex paper goes into more detail about why the Obama administration’s guidance on school discipline and race was bad law and bad policy.

As a legal matter, the way the guidance was promulgated, the use of the “disparate impact” approach in this area at all, and in any event the scope it was given, are all deeply dubious. And as a matter of policy, pressuring school officials to get their racial numbers right when disciplining students will inevitably push them either to discipline, say, Asian-American students who shouldn’t be disciplined or, more likely, not to discipline African-American students who should be.

And who will be hurt most if disruptive or dangerous students are not disciplined? Teachers surely, but even more the rule-abiding students who will now find it harder to learn and, indeed, will now be forced to learn in environments that are downright dangerous. And what is the demographic profile of those students? Right: They are more likely themselves to be African-American and poor.

In sum, jettisoning this third Obama-administration policy will help, not hurt, the cause of racial equal opportunity, and it advances both civil rights and law and order.

*          *          *

I noted that the second item on the Federalist Society working group list was the Education Department’s guidance on campus sexual assaults. I had earlier written a post for National Review Online for that, too, where I was following up on CEO board member (they’re everywhere!) John J. Miller’s timely post, regarding Secretary DeVos’s welcome speech earlier this month. That speech was welcome because it announced a major change in the Obama-era Education Department policy on how to deal with accusations of sexual harassment and assault on campus.

For more on this, I’ll mention that Hans Bader of the Competitive Enterprise Institute used to work at the department’s Office for Civil Rights, and he writes frequently and always incisively about this issue in particular. So his take on the secretary’s speech is important reading.  Hans is also a member of the Federalist Society working group on Sex & Race.

*          *          *

Whatever you think of ESPN’s Jemele Hill and the network’s reaction to her recent anti-Trump tweets, it was wrong of ESPN to limit consideration of her replacement to those who happen to share her skin color, as this news article suggests.  That’s offensive — and in clear violation of Title VII of the 1964 Civil Rights Act, which forbids employment discrimination on the basis of race.  Hat tip to CEO’s executive director, Rudy Gersten.

*          *          *

Finally, a follow-up on a couple of my recent emails.  I mentioned that the Center for Equal Opportunity is delighted to welcome aboard as a senior fellow Terry Eastland, a distinguished journalist, editor, and expert on, among other things, the intersection of race, ethnicity, and law.  And I criticized the announcement by Secretary of State Rex Tillerson of a “Rooney Rule” for appointments to ambassador at the State Department.  Putting the two together, I thought I’d treat you to this post by Terry on the Tillerson announcement, which was posted by the Weekly Standard, where Terry is a contributing editor.  Enjoy! 

Why Does Rex Tillerson Want Affirmative Action for Ambassadors?

Tillerson says the State Department needs to be more diverse and that there needs to be a Rooney Rule for ambassadorships.

Secretary of State Rex Tillerson was so disturbed by the clash of protesters in Charlottesville that he made a policy decision he may have to reverse: In a speech at the State Department on August 19, he repudiated hatred and racism before addressing what he called “a great diversity gap” in employment and ambassadorships. He meant that there are too few employees and ambassadors who are “diverse” on account of their race, or ethnicity, or sex, or sexual orientation. He did not say how many of this or that diversity group the department needed among its employees or ambassadors to be sufficiently diverse. Tillerson’s point was simply that there must be more.

How to get more? Tillerson said there would be changes in the process used to recruit and hire employees and choose ambassadorships. The most important of those changes concerns ambassador selection.

“Every time we have an opening for an ambassador position, at least one of the candidates must be a minority candidate,” he said. Tillerson seemed to mean candidates who are black and Hispanic, but not Asian or other racial and ethnic minorities. The new policy could result in discrimination against a non-preferred minority candidate. Necessarily it will result in discrimination against someone lacking the “right” race or ethnicity but who is better qualified than the diversity candidate included in the competition for a particular ambassadorship.

Federal civil rights law and the Constitution would not seem to permit racial preferences in the selection of ambassadors and department employees. Someone needs to tell that to Tillerson. Perhaps Attorney General Sessions could do so.

Attorneys general, relying on the Justice Department’s Office of Legal Counsel, have long advised presidents and their administrations on legal questions raised by new policies. Here’s one that needs the AG’s immediate attention, before Tillerson’s bean-counting gets out of hand.

The Swamp Gets Deeper

Tom Price resigned his post as secretary of health and human services because the president didn't like the optics of his using taxpayer money to fly in private jets to venues easily accessible by commercial flights -- or even by car. But plenty of others in the administration have exercised similar bad judgment and are still on the job.

Treasury Secretary Steven Mnuchin tried to commandeer a military plane for his honeymoon but was refused. However, he used a government plane to fly to Kentucky during the solar eclipse in August, with his wife in tow, ostensibly to visit Fort Knox. Mnuchin is worth nearly $400 million; if he wants to avoid commercial travel, he can afford to pay for private jets. That's what Secretary of Education Betsy DeVos does. She owns her own plane, which she uses for official travel, and doesn't charge the government a cent. Not so with Secretary of the Interior Ryan Zinke, who is under investigation for chartering a private plane so he could fly from Las Vegas to his hometown in Montana and another one to fly between Caribbean islands to attend a ceremony honoring Denmark, even though commercial flights were available in both cases. And Veterans Affairs Secretary David Shulkin took his wife along for a 10-day trip to Europe that included both government business and several days of sightseeing, with the taxpayers footing the bill for the secretary's wife's travel and per diem. Zinke and Shulkin are relative paupers among Trump's Cabinet; Shulkin is worth about $17 million, and Zinke is worth just under $2 million. Forbes magazine estimates the Cabinet's total net worth at $4.3 billion, the richest in modern history.

Trump's Cabinet members aren't the first in history to abuse their travel schedules, and the president did force Price to resign, though the failure of health care reform may have been the real impetus and the travel just a good excuse. However you look at it, Trump's swamp is deeper than most administrations'. His own conflicts of interest are legion: His Washington hotel is a magnet for foreign governments and lobbyists trying to curry favor; his sons get Secret Service protection while they fly around the world attending to Daddy's empire, at a cost of millions to the taxpayers; his daughter and her husband occupy prime West Wing offices without any experience or expertise to justify their expansive portfolios; and, despite promising to distance himself from managing his financial holdings, he reportedly gets frequent updates from his sons, which would be illegal for any other government official.

Trump's supporters don't seem to care. They still believe he'll "drain the swamp" as he promised. I'm still waiting to learn what a deal breaker would look like to the most die-hard Trumpkins. Maybe there isn't one for the one-third of voters who have been with him from the beginning. They've stuck by through Trump's embarrassing lack of knowledge about policy. Remember the nuclear triad and the Quds Force? Trump had no clue about the former, which Sen. Marco Rubio gently schooled him on during the presidential debate, and now he commands the nuclear-armed submarines, bombers and ballistic missiles, which he could launch without any check on his power. As for the elite Iranian troops, they've killed Americans in Iraq and committed unspeakable crimes against the Syrian people, but has Trump ever learned the difference between the Quds Force and the Kurds, our allies in Iraq?

It might be one thing if his supporters could point to major achievements of this administration, but so far those achievements have been elusive. Yes, he got an excellent Supreme Court justice through confirmation, and his administration has made some important changes in regulatory policy. But there is no major legislation to point to, and he's yet to learn how to use the power of the presidency to get his own party members in Congress to get things done.

Trump supporters may be willing to ignore the administration's ethical failures, but Congress shouldn't. And the broader American electorate will send the GOP a message in 2018 if things don't change.

Not the Art of the Deal

Who the heck knows what's going to happen to the "dreamers," immigrants who came illegally to the U.S. as children, despite all the talk in Washington? Last week, Attorney General Jeff Sessions rescinded the Deferred Action for Childhood Arrivals program -- at the White House's direction, presumably -- leaving dreamers targets for deportation if Congress fails to act in the next six months. Quickly, the president seemed to have second thoughts, tweeting and making offhand comments about his great "love" for dreamers while suggesting that if they get left out in the cold, it will be Congress' fault. Then, on Wednesday, he invited congressional Democratic leaders Nancy Pelosi and Chuck Schumer to dinner at the White House and seemed to acquiesce in a deal to pass a version of the DREAM Act granting protection from deportation as long as it is coupled with beefed-up border security. But none of the parties present can agree on what was actually decided -- and Republicans in Congress are balking at any deal cut without their involvement. The "Art of the Deal" this is not. It's more like The Three Stooges at the White House.

Except for the most rabid immigrant restrictionists, most politicians and their constituents have no interest in kicking out young people whose parents brought them illegally as children but who grew up here and contribute to their communities by working, going to college or serving in the military. Polls show that two-thirds of Donald Trump voters, along with even larger majorities of other Americans, want the dreamers to stay. Nonetheless, the Republican Party has made being tough on illegal immigration the sine qua non of conservatism, which makes it difficult to put together legislation that can garner enough GOP votes to get a bill to the floor of the House and, if passed, secure the 60 votes needed in the Senate to avoid a filibuster. With a different president -- one with real leadership skills, not the reality TV version Trump embodies -- it might be possible. But does anyone who has watched this president operating over the past eight months have much faith that he will rise to the occasion?

Somebody needs to step into the leadership vacuum on this issue (as on many others, most notably tax reform). We've gone from the imperial presidency of Barack Obama, who used executive orders and the regulatory process to rewrite legislation he didn't like or enact policies he couldn't get passed after the Democrats lost control of Congress, to the ineptness of Trump's White House, which gets almost nothing done. The inability to resolve the dreamers' issue might not be the most consequential failure of Republicans come the 2018 elections, but it would illustrate the quagmire the party created for itself. More importantly, it would show a heinous disregard for the suffering it would bring to millions of hardworking young dreamers, their parents and their spouses -- many of the latter of whom are U.S. citizens -- as well as their American-born children. This is ugly and wrong and entirely avoidable.

House Speaker Paul Ryan said Thursday, "The president understands that he's going to have to work with the congressional majorities to get any kind of legislative solution." But if Ryan continues the path he's chosen in recent months of caving to the immigration hard-liners in his caucus who want to keep any legislation from making it through committee -- much less coming to the floor for a vote -- he'll be as much of a problem as Trump. Ryan has tried to have it both ways, sounding sympathetic to the plight of the dreamers but doing nothing to forge a solution for fear of losing his job. That's not leadership; it's cowardice.

The parameters of an acceptable deal are clear: Give conditional legal residency to dreamers who pass tough background investigations, pay back taxes if owed, complete high school and enroll in college, get a job, or join the military. But the devil will be in the details. Conservatives should take a good look at legislation offered by Sens. Thom Tillis, R-N.C., and James Lankford, R-Okla., the Recognizing America's Children Act, which would bring tough enforcement mechanisms if enrollees were to fail to live up to their promises but also would allow a path to permanent resident status and eventual citizenship if they were to fulfill the terms by graduating college, serving in the armed forces and obtaining employment. These goals reflect conservative values; they don't undermine them.

America needs workers -- and dreamers are already here and willing to do their part. Those enrolled in the Obama administration's DACA program already have a 90 percent employment rate. The last thing we need as the economy finally comes out of the doldrums of the past 10 years is to lose hundreds of thousands of young, productive workers because no one in a position to lead steps up to fix the problem.

How the Trump Justice Department is Defending Free Speech

Attorney General Jeff Sessions wants college campuses to become what many of them once were—places of “robust debate.” That is a worthy project, and I wrote about it this week in The Weekly Standard. By the way, I recently joined the Center for Equal Opportunity as a senior fellow.

“The American university was once the center of academic freedom,” said Attorney General Jeff Sessions in his speech at the Georgetown Law Center this week. It was “a place of robust debate, a forum for the competition of ideas.” But over the years it has become “an echo chamber of political correctness and homogeneous thought, a shelter for fragile egos.

Sessions called for “a national recommitment to free speech on campus.” Administrators and faculty would defend free expression “boldly and unequivocally,” he said, and the Justice Department would do its part by enforcing federal law, defending free speech, and protecting “students’ free expression”—of all points of view.

As a demonstration of its intentions, the Justice Department has filed a “Statement of Interest” in a campus free speech case from Georgia Gwinnett College that is almost unpronounceable: Uzuegbunam v. Preczewski. At issue is the constitutionality of a school policy that limits student expressive activity to two very small “free-speech zones. Sessions said there would be more such filings, and a department officer confirmed that there would be a second next week.

Federal law provides for the not widely known Statement of Interest. It says that the attorney general may send any officer of the department to any state or federal district to attend to the interests of the United States in a suit pending in a federal or state court.
The Obama Justice Department used statements of interest in what the New York Times in 2015 called “a novel legal campaign that began early in the administration and has expanded.” Where such statements typically were filed in cases involving national security or diplomacy, now they were being filed in private cases involving civil rights. According to the Times, the cases concerned legal aid, transgender students, juvenile prisoners in solitary detention, and people who take videos of police officers. And while the filings didn’t say which party should win, “they [gave] clear support to plaintiffs and put the federal government in cases ... at the forefront of civil rights law.”

“By using such court filings in civil rights cases,’ said the Times, “the Obama administration is saying it has an interest in preserving constitutional rights in the same way it has an interest in foreign policy. ... Neither career Justice Department officials nor longtime advocates can recall such a concerted effort to insert the federal government into local civil rights cases.”

Sessions’ speech raises the question of whether the Trump Justice Department will indeed make a similarly concerted effort to insert the government into local free speech cases arising from colleges and universities. The government’s involvement could help. After all, as Sessions said in his speech, “[A]ction to ensure First Amendment rights [on campus is long] overdue.”

Use Bipartisan Opening to Protect Dreamers

President Donald Trump's decision this week to remove protection for 800,000 immigrants who came here illegally as children was both cruel and thoughtless. Pressed by hard-liners in his administration and hemmed in by his own campaign rhetoric, the president punted. Rather than announce the decision himself, Trump sent beleaguered Attorney General Jeff Sessions out to announce an end to the Deferred Action for Childhood Arrivals program. But in characteristic fashion, the president quickly undercut his own policy by tweeting that if Congress doesn't act to fix the problem, he will revisit his decision. It was pure Trump -- all impulse and no thought.

The ball is now in Congress' court -- where it has always been. President Barack Obama's decision to protect so-called "dreamers" through executive means was fraught with danger. It was never a permanent fix; it was just a way to ensure that those who had violated U.S. law through no fault of their own could remain in the country they called home without fear of being deported, as long as they obeyed the rules. As I argued at the time, President Obama was well within his authority to decide that these young people were not a priority for deportation -- but to provide real security to these young immigrants, Congress needed to pass legislation.

The votes are there to pass a bill to protect childhood arrivals, but it will require bipartisanship of the kind not seen often during the 115th Congress. Democrats are ready to vote for a bill to put dreamers on the path to citizenship; the issue has become a virtual litmus test on the left. And despite the ugly rhetoric on the right and the anti-immigrant fanaticism in the GOP base, there are enough Republicans who favor helping dreamers to get legislation through both houses. The trick will be getting a bill to the floor. But Trump may have given House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell the perfect excuse to buck the extremists in their party.

In an Oval Office meeting with congressional leaders this week, President Trump decided to throw his fortunes in with Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi by backing the Democrats' proposal to keep the government funded and raise the debt ceiling for three months instead of seeking a longer-term debt and funding solution favored by his own party. The decision took Republicans by surprise -- though it shouldn't have. Trump is nothing if not fickle. He rode Republican anger to the White House, but he has no commitment to conservative principles or loyalty to a party he opportunistically embraced. But this betrayal also gives Ryan and McConnell an opportunity to move forward on legislation that requires Democratic votes to pass.

The biggest impediment to passing legislation to give childhood arrivals permanent resident status has been the reluctance of GOP leaders to bring a bill to the floor that the majority of their members do not support. The "Hastert rule" -- named for former House Speaker Dennis Hastert, who used it to maintain party discipline -- has kept immigration reform from coming to the House floor since 2013, when then-Speaker John Boehner decided to block any immigration reform bill that could not muster majority support among Republicans. But Speaker Ryan could ignore the Hastert rule, which is not a formal part of House rules but only a partisan tactic, and allow one of the fixes to move forward.
President Trump has done his best to humiliate Republican leaders in Congress, so why do they owe him any degree of loyalty? If Congress hopes to accomplish anything in the next year and a half, McConnell and Ryan will have to carve out a path of their own. It can begin with recognizing that dreamers are Americans in every way that matters. Half of dreamers came when they were 6 years old or younger. They have attended American schools, graduated and gone on to be employed at rates higher than their American-born peers. They can and should be asked to give back to the country by paying taxes and serving in the U.S. military -- but they won't be able to do those things without permanent resident status. The alternative would be to deport hundreds of thousands of young, productive workers. Why would anyone want to see that happen?

McConnell and Ryan should reach across their respective aisles and enlist the votes to pass immigration reform. It's the right thing to do.

Trump Tweets While Americans Suffer and Wait

Puerto Rico and the U.S. Virgin Islands drowned while President Donald Trump tweeted. It is hard to conclude otherwise. On Sept. 20, Hurricane Maria -- the second major hurricane in less than two weeks -- hit the islands, which together are home to some 3.5 million American citizens. Yet for a week following the devastation, the president found it somehow more important to focus his personal attention on tweeting about football players and the owners of their teams than he did on his job as commander in chief.

The only possible way to save lives and restore order on the islands was to order a massive deployment of U.S. troops to help their fellow Americans immediately after the hurricane hit, but it took almost a full week for that to happen. Army Brig. Gen. Rich Kim did not arrive until Sept. 27 to take control of some 5,000 active-duty forces operating on the ground and 2,500 National Guardsmen, but far more troops are needed. Some experts have suggested that 50,000 is a more realistic number.

The White House was proactive in both Texas and Florida when huge hurricanes headed their way, earning the president deserved credit for doing what he needed to help Americans whose lives were upended and property was destroyed. But American citizens who live in U.S. territory in the Caribbean seemed to be an afterthought in Trump world. When the president finally addressed the American people on the issue -- a week after Maria made landfall -- it was mostly to announce he would head to the Caribbean for a photo-op next week. And instead of reminding everyone that all Puerto Ricans are American citizens, he bragged about how many Puerto Ricans he knows as a native of New York City -- which was cringe-worthy, given his history as a landlord who declined to rent to Puerto Ricans (and blacks and Dominicans) in the 1970s until forced to do so by the U.S. Department of Justice.

This has been a bad week for the president and his White House -- and not just on the administration's slow response to Hurricane Maria. Trump personally managed to reignite a protest movement that had largely died down -- namely, some players kneeling rather than standing for the national anthem at football games -- by calling protesters SOBs and urging their employers to fire them. He failed to rally enough support among Republicans for the Senate to vote on yet another health care reform bill, killing reform for this year. And Trump's endorsement failed to sway voters in Alabama, as Trump's candidate lost to a former judge who twice defied his duty to enforce the U.S. Constitution in his courtroom.

On Wednesday, the president tried to refocus -- this time on tax reform, which has been a long time coming. But given his short attention span, he's unlikely to keep the focus there for long. I worked in President Ronald Reagan's White House as director of public liaison during the fight for tax reform that started in 1985. I know what razor focus looks like; President Reagan had it, as did every member of his team. It was every day, every week for months until the president signed the Tax Reform Act of 1986. It involved hundreds of speeches by the president and members of the administration and visits and calls between members of Congress and the president, his Cabinet and other officials. I coordinated bringing groups into the White House for briefings with administration officials -- friendly groups, as well as those who were skeptical and needed convincing. It was also a bipartisan effort. I remember flying with the president on Marine One into Rep. Dan Rostenkowski's Chicago district (the Democratic congressman was chairman of the House Ways and Means Committee and a sponsor of the tax reform bill) to marshal support. If President Trump wants tax reform, he will need that kind of effort and attention. Pardon me for wondering what the game plan is for this White House.

Americans deserve a president who can keep his mind focused on important things -- such as saving lives in natural disasters by ordering the number of personnel and material commensurate with the scope of the disaster, day one, not stoking culture wars, and working with Congress to pass legislation by getting on the phone, meeting, strategizing and compromising, if necessary, not figuring out whom to blame for failing. Will America ever get from Donald Trump the president it deserves? He's more than eight months into his term, and we haven't yet.

While No One Was Looking

With all eyes focused, rightly, on Texas and the victims of Hurricane Harvey, it is easy to overlook the grave threat to constitutional democracy the president issued when he pardoned former Maricopa County Sheriff Joe Arpaio last week. On its surface, the pardon looks like just another nod to rabid anti-immigration forces. Arpaio is best known for his aggressive -- and unconstitutional -- tactics in Arizona against anyone he or his deputies suspected to be an undocumented immigrant, even if the person had committed no crime. Under Arpaio's orders, deputies could stop and demand proof of legal status of anyone they chose. A federal judge ordered the practice stopped because it violated the Fifth Amendment, which guarantees due process to everyone, but Arpaio defied the order. The judge found that Arpaio's actions showed contempt of court and would have sentenced the 85-year-old next week, but the president's pardon intervened.

The Constitution provides that the president can pardon anyone who has committed a federal crime and do so for pretty much any reason he chooses. Bill Clinton infamously pardoned billionaire financier Marc Rich -- a fugitive who had been found guilty of racketeering, wire fraud and income tax evasion, among other crimes -- after Rich's former wife made large donations to Clinton's re-election campaign. But though the pardon stank of corruption, it proved to be more a stain on Clinton than on the Constitution. The Arpaio pardon is different. Arpaio's crime directly defied a court order intended to enforce constitutional protections and therefore was a direct assault on the Constitution itself. It is not just that Arpaio committed illegal acts against individuals, refused to obey a lawful court order and used his position as a police official to deny others their constitutional right to due process.

No president has ever done what Trump has -- so the question of whether Trump's broad authority to grant pardons extends to violating the Constitution itself is unlike anything we've ever had to face.

I doubt that Trump even considered the possibility that what he was doing was outside the norm; he's repeatedly redefined what is normal for a president to do since the day he took office. But if allowed to stand unchallenged, Trump's pardon could set a very dangerous precedent. Some legal scholars are already questioning the president's actions. As reported by Jennifer Rubin in The Washington Post, a group called Project Democracy has sent a letter to the public integrity section of the Justice Department's criminal division, arguing, in her words, that "the president cannot obviate the court's powers to enforce its orders when the constitutional rights of others are at stake."

Although the Framers didn't place parameters around the pardon powers -- saying the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" -- it is inconceivable that they intended for the president to be able to do away with the separation of powers or invalidate the protections afforded by the Constitution itself. For example, could the president pardon an official who decided to defy the 14th Amendment or the First Amendment?

Many of the president's strongest supporters oppose birthright citizenship to children born to immigrants here illegally. If county officials refused to issue birth certificates to those babies whose parents they suspect are undocumented immigrants, could the president pre-emptively pardon them, putting the children in limbo? If a local sheriff didn't like what the local newspaper printed, could he shut down the presses, confiscate or destroy the newspaper's property and defy court orders to restore it? (Arpaio actually came close to that scenario when he went after the Phoenix New Times with illegal subpoenas, threats of multimillion-dollar fines and nighttime arrests of newspaper executives when the paper printed information Arpaio didn't like.) If the president can simply override any part of the Constitution he doesn't like by pardoning officials who violate it, how does this not give him dictatorial powers?

The Arpaio pardon may be the worst thing the president has done to date -- and unfortunately, it was done while no one was looking. But if it goes unchallenged, it will embolden a president who has already shown his contempt for propriety, law and the Constitution.