As the Biden administration’s domestic agenda is stalled by the Republican-controlled House of Representatives, which is also unable to pass legislation, peripheral sources of authority such as local prosecutors, judges, and state legislatures are suddenly hoping and reaching for an opportunity to influence national policies and practices.
It’s mainly, but not just, Republicans. Democrats are also contributing.
The indictment of former president Donald Trump by Manhattan District Attorney Alvin Bragg could invite future prosecutions of former presidents on a partisan basis – or so claim Republicans.
It would be much harder for a district attorney in Lubbock, Texas to indict former president Bill Clinton on some trumped-up charge. There would probably never be a trial at all, even if a local grand jury co-operated. After all, Mr Trump was residing in Manhattan when he allegedly committed the hush money crimes there, so Mr Bragg has uncontested jurisdiction.
Nonetheless, his case may involve potentially dangerous interplay between state and federal authorities. Part of his argument seems to hinge on the idea that Mr Trump's dishonest financial filings, misdemeanours in New York State, rise to the level of felonies because they helped violate a major crime: federal campaign laws. This arguably flips federalism on its head, or so Mr Trump's lawyers will undoubtedly argue, expanding the District Attorney’s local power by usurping what should be federal jurisdiction.
The DA in Fulton County, Georgia, investigating alleged election tampering by Mr Trump, is likely to follow suit, doubling down on local Democratic indictments against the former Republican president. When Republicans can take revenge and try to enforce federal laws at the local level against nationally prominent Democrats, they will.
This weekend’s headlines were dominated by an extraordinary ruling by a Trump-appointed Texas judge, Matthew Kacsmaryk, purporting to overturn the 23-year-old Food and Drug Administration’s approval of mifepristone, a medicine mainly used in early-term abortions. The ruling attempts to render illegal the sale of mifepristone everywhere in the country.
The ruling is a minor masterpiece of abysmal reasoning and super-tendentious language. He uncritically cites particularly outlandish claims from anti-abortion groups while dismissing the fact that more than two decades of being approved and widely used in the US have demonstrated mifepristone to indeed be safe and effective.
Even the Supreme Court in its highly controversial overturning of the nearly 50-year-old constitutional guarantee of women’s access to early-term abortions avoided what, in the American political context, is remarkably inflammatory rhetoric, referring to doctors as "abortionists" and foetuses as "unborn humans" and "unborn children".
Mr Kacsmaryk also endorses "foetal personhood,” the notion that the US Constitution protects zygotes from the moment of conception as full human beings with all the core safeguards afforded to other citizens. Other legal systems may embrace such notions, but the American one never has. Instead, in line with English common law, it traditionally considers the process and fact of birth to be the defining point for personhood.
If his ruling were somehow to stand, this federal judge in Amarillo, Texas, would have effectively nationally banned early-term medicinal abortions, which account for most US abortions. Any federal judge would then presumably be able to outlaw any medicine or approved treatment she or he dislikes for whatever reason, especially given the apparently limitless flexibility of the ruling’s arguments.
Another concern with Mr Kacsmaryk’s tirade is his repeated invocation of the 1873 Comstock Act, which imposed a century of heavy censorship on US publications and outlawed mailing or shipping "obscene, lewd or lascivious",material and “every article, instrument, substance, drug, medicine or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion or for any indecent or immoral purpose”.
After decades of suffocating restrictions, by the 1960s the Comstock Act became a disregarded relic. When Congress removed the last restrictions on contraception in 1971, it was a truly dead letter, although, like thousands of other anachronistic laws, it was never formally repealed. Now comes Mr Kacsmaryk to resurrect one of the most repressive, detested pieces of legislation in US history. But even he stayed his ruling for a week, allowing the FDA to appeal.
A mere hour after Mr Kacsmaryk’s ruling was issued, a judge in Washington state ordered the FDA to protect the status quo in 17 states and the District of Columbia that allow abortion access. These competing rulings not only demonstrate how divided the country is over abortion following the Supreme Court's decision last year, they also illustrate how regional judges are competing to control or influence what legislatures and the federal government may or may not do on this hot-button issue.
The growing trend of local courts seeking to impact national decision-making comes as the reputation of the Supreme Court has taken yet another massive hit at the hands of the incorrigible Justice Clarence Thomas, who has apparently never seen an ethics violation he didn't like. Recent news investigations by American outlets have revealed that he took multiple, lengthy vacations on private planes and yachts to Indonesia, New Zealand, Greek islands and so on at the expense of one of the most prolific right-wing Republican political donors with a huge vested interest in the outcome of countless potential court decisions.
Mr Thomas breezily claimed “advisers” told him he didn't need to report these vast gifts, which total in the millions of dollars in value, even though the law is clear, particularly regarding private plane trips. Yet Supreme Court justices face no ethics rules. The Court itself will not act. Neither will Congress, which, I have argued on numerous occasions, should have long ago impeached and removed Mr Thomas.
But who needs ethics, or even laws, when you’re a Supreme Court justice? The impunity is repugnant.
Yet, the Court is hardly powerless. It's on a rampage to repeal many aspects of settled law that particularly offend religiously conservative Christians.
With the collapse of ethics and credibility at the Supreme Court and a traditional gridlock stalemate between the House and President Biden, local panjandrums dream of national decision-making glory. In reality, The Democrats, winning election after election, are rapidly emerging as the epicentre of national power. It’s largely due to the unrelenting, highly unpopular right-wing offensive against abortion access with which Republicans are heedlessly charging off a political cliff.
