Congress Is Not Working

When I was a young lawyer fresh out of law school I went to work for the recently elected Republican Attorney General. Because it was a change in administration -–a Democrat held the office for twelve years before – there was almost a complete change in personnel and the new staff members were all recent law graduates. We were lacking in experience but overwhelming in enthusiasm. The attorney general had run on a platform to enforce the laws of Montana and the press had goaded him into asserting that included the laws prohibiting gambling in Montana. (At the time virtually every bar in Montana had some form of gambling which ran from “punch boards” to black jack.)

Montanans liked their gambling – it was local and pastoral and the Attorney General didn’t have any particular animus toward gambling. The Attorney General noted pointedly that it was the legislature’s responsibility to enact laws dealing with gambling and that it was his duty to enforce the laws as written. But the press was relentless in chiding his “law and order” stance and so he appointed an anti-gambling task force. The task force consisted of one not-dry-behind-the-ears assistant attorney general – me – with access to the use of the other staff lawyers as needed. We decided that the best way to enforce the laws was to raid a series of bars, confiscate all of the gambling equipment, arrest the owner or person in charge and charge him with violating the gambling laws.

Our first targets were four bars in Anaconda, Montana, which we dutifully hit simultaneously one late afternoon with one lawyer and one law enforcement officer for each bar. The sweep took us a couple of hours by the time the gambling devices were inventoried and confiscated and the owner/manager were processed and released. The raid was the talk of Butte and Anaconda and the fodder for the state’s press corps for the following week. But Butte and Anaconda were Democrat strongholds and we realized from the start we would be accused of partisanship if those raids were the sum total of our efforts.

So, thereafter, a similar raid was mounted in Jordan, Montana, (approximately 350 miles from our office in Helena, Montana). Jordan was a small town in eastern Montana in a predominantly Republican county. It was also decidedly remote and would send a signal that we intended to go wherever necessary to enforce the anti-gambling laws. Again the raids involved multiple bars and were conducted mid-day and proceeded much like the raids in Anaconda. The combination of the two raids had the desired effect. Illegal gambling began to dry up rapidly and in the end most bars complied with the law – there would always be a couple of pull tabs and punch boards for some bars which paid out in redeemable merchandise but we had largely accomplished our goals. Pressure mounted on the legislature to change the gambling laws and eventually it allowed limited and regulated forms of gambling in the state.

Now that is a bit of self-aggrandizement but the point will be made clear as you proceed with this column.

In June of 2012, then President Barack Obama without congressional authority signed an “extra judicial” order that was commonly but erroneously referred to as the “Dreamers Act.” (I say erroneously because the “Dreamers Act” is a piece of legislation that Mr. Obama recommended for congressional adoption in order to validate his unlawful order and upon which the Congress has failed to act for now nearly six years.) The effect of Mr. Obama’s order was to invalidate enforcement of the immigration laws against a select group of people who entered the United States illegally as minors and remained here for a period of time. Mr. Obama noted repeatedly that he lacked the authority to enter such an order but did it any way – a pattern that he would repeat often during his second term in office. That order is commonly referred to as DACA.

In the meantime Congressional Republicans decried loudly Mr. Obama’s abuse of power but failed to do anything about it. Then in January of 2017 President Donald Trump inherited the mess that Mr. Obama created. Mr. Trump allowed the order to remain in place and requested that Congress act to address the problem. But Congress did not. Finally, on September 5. 2017, Mr. Trump rescinded Mr. Obama’s unlawful order but deferred implementation for six months in order to give Congress the opportunity to act. Again, Congress to-date has failed to act. The Dreamers are now subject to arrest and deportation because Congress has failed to act.

The Dreamers are just a part of the problem with the antiquated immigration laws in the United States. Every member of Congress knows they are not working and every member of Congress knows that they are a principle part of the massive illegal immigration problem in the country – the best estimates are that there are now over 20 million illegal immigrants and that number represents about six percent of the nation’s population. Enforcement of the current immigration laws is creating an extraordinary hardship on the southern border where unaccompanied children are being detained for hearing before deportation and minors are being separated from parents who have been arrested and held for deportation – the law does not permit jailing of minors whose parents are charged with a crime. It is a horrible situation and both the optics and the results are intolerable.

But the question is do you fix the law that creates the situation or do you ignore the law for expedience sake? Ignoring the law only makes the situation worse as evidenced by the past decade. Enforcing the law causes hardship – perhaps sufficient hardship to incentivize Congress to act. But Democrats have resisted legislation because they choose to use the problem as a campaign issue and the Republicans have failed to act because they are incompetent. Hopefully this current embarrassment will result in Congress actually doing something and to that end I am hopeful that Mr. Trump will continue to assert pressure until they do. (That is what we did in Montana with regard to the gambling issue.)

But there is a larger question that goes to the very crux of a democracy. A democracy only exists if we are all governed by the rule of law. When politicians choose to ignore the law, when presidents decide which laws to enforce, when they decide to enforce them against some but not others the rule of law goes out the window and we are no longer a democracy. That folks is the essence of the swamp that Mr. Trump was elected to drain.

For months congressional committees have been demanding production of documents from the Justice Department and the Federal Bureau of Investigation regarding Hillary Clinton’s abuse of classified documents and connections to operations utilizing Russian agents to create a phony dossier about Mr. Trump as well as documents relating to the commencement of the FBI investigation into Mr. Trump and the yet unproven allegations of collusion with the Russians in the 2016 election. The Justice Department and the FBI have refused to release those documents and the Republican controlled Congress has threatened action but never take any – all sound and fury signifying nothing. The Justice Department and the FBI refuse to comply not out of some legal defense – they have none – but rather because recent history has taught them that the Republicans talk a lot and do nothing. Two prime examples are Lois Lerner and former Attorney General Eric Holder who successfully thwarted production of documents by simply ignoring Congress without consequences.

If you want to change the law, if you want to drain the swamp, you have to act. In the latter instance, people have to go to jail. That includes Hillary Clinton, Huma Abedin, James Comey, Andrew McCabe, Peter Strzok, Lisa Page and probably Rod Rosenstein. So, message to Republican congressional members – get off your sorry butts and get something done. As it stands now a significant number of voters – including me – are committed to not voting for any incumbent Republican member of Congress.