5 Things That Show America Is In A Cold Civil War

Opinion pieces presently abound in comparisons of today’s GOP and its tactics to the Confederacy. There is a large element of truth in these. However, at bottom, the sentiment for secession is coupled, among most of its adherents, with a realization that secession is impossible.

What is more possible and more pernicious is the potential success of a sub rosa coup, one that sabotages the rule of law and majority rule; one that renders the election of Democratic Presidents more or less irrelevant; one that succeeds in allowing the GOP to control America from a minority position. That struggle, a Cold Civil War, is very much in progress.

Let’s take five current and major examples:

1. Abuse of Filibuster

The GOP, in the Obama era, has abused the Senate filibuster exponentially more than has any Senate?minority in any time. Yesterday, they invoked the filibuster to thwart the nomination of Patricia Mallet to the D.C. Circuit Court of Appeals. Of course, this Senate minority has also used it on myriad executive branch nominees and other judicial appointees, in attempt to nullify the last two presidential elections. The filibuster, of course, is not of Constitutional origin. The GOP is not acting within their “Constitutional rights.” Rather, they are abusing a custom to impose minority rule.

The hysteria of the GOP over the D.C. Circuit vacancies is instructive. Their new mantra is that, by attempting to fill three vacancies, Obama is attempting to “pack the court.”

The phrase “court-packing” stems from FDR’s failed attempt, in 1937, to secure passage of a law, which would have allowed him to make additional appointments to the Supreme Court upon certain sitting justices achieving a certain age. Clearly, this would have given him the power to appoint some justices that current law would not have allowed. Consequently, the pejorative term “court packing” was at least arguably accurate.

But what Obama is trying to do with the D.C. Circuit is simply to fill three vacancies, which have arisen in the normal way that vacancies arise. Never before in American history has a political party, with the possible exception of the John Adams appointments in 1801, referred to the normal process of filling vacancies as “court packing.” Yet the right wing blogosphere and echo chamber have taken up the phrase to imply that it is Obama who is attempting to accomplish something nefarious, when in fact the contrary is precisely the case.

Republicans have also argued that the new appointments are “not needed” because the case load of the court is too light. Not even Chief Justice Roberts buys this argument; he favors the appointments being made. Moreover, the number of pending cases may not be a true reflection of the court’s workload. The D.C. Circuit tends to have more important and complex cases than other courts, and so the mere counting of a case backlog is less than informative as to the court’s workload.

Finally, though, and most importantly, if this court can get by with fewer judges, Congress has the power to reduce the number of its judges. That would be a solution to this alleged problem according to LAW. But “law schmaw!” is the evident response of the GOP; they cannot get Congress to pass such a law, and, failing that, they do what they have become accustomed to do in the Obama era–achieve their desired result by extra-legal, extra-Constitutional means–in this case, with filibuster abuse. Sabotaging and circumventing the law has become a GOP art form as they have demonstrated in the next section–sabotage of Obamacare.

2. Sabotage of Obamacare

I cannot add much to what is pervasively already known about this subject. But note that what we see again is, first, an inability to achieve results through the normal legal process; that is, the many attempts to repeal the law that have been unsuccessful. Then, failing to achieve their goals under the rule of law, they resort to sabotage; the many GOP-controlled states that refused to set up insurance exchanges have magnified the difficulty confronting the much beleaguered national exchange; the constant lies about the law by the GOP have undermined its potential success; and overt attempts to get the public not to participate in the law have damaged it.

In other words, the GOP has taken a law that was duly enacted by Congress, found to be Constitutional by the Supreme Court, and, in violation of their own oaths of office, have sabotaged it by undemocratic means, thus attempting to force the country to adopt their position by means that are inconsistent with and contrary to the rule of law, on which this country is based.

3. Sabotage of Same Sex Benefits in the National Guard

The Department of Defense, after the Supreme Court decisions in the summer on gay marriage, has instructed that all National Guard units, which though administered by the states are ultimately under its control, offer same sex benefits to gay couples. This, in fact, was strongly reinforced just yesterday by Secretary of Defense Chuck Hagel.

The national guards in numerous GOP-controlled states have, however, refused to implement this policy. In so doing, they are violating the Supremacy Clause of the Constitution which makes federal law supreme over state law. Once again, the response of the Rick Perry’s of the world is “law schmaw!–we don’t like homosexuals down here, and so we are not going to abide by federal law–see if you can make us!”

4. Use of Debt Default and Budget Deadlines for Extortion

We have just been through this, and it need not be covered in detail. Notice, however, once again, how the tactics follow the same pattern. Before the Obama era, debt default deadlines were regularly and uncontroversial extended as a matter of course because all involved did not want to use the potential damage to the full faith and credit of the United States to secure any policy points that could not be achieved by normal, legal, Constitutional means. But a GOP minority has repeatedly employed the tactic of extortion, the threat of real harm to AMERICA, in attempt to get policy concessions that they could not achieve by the means the founders intended, by normal Congressional action and presidential approval. This series of extortion attempts are likely the clearest example of the attempt of today’s GOP to control America from a minority position.

5. Undercutting Abortion Rights

As I write, abortion is a Constitutional right and has been for forty years, made so by our institutions, including the Supreme Court, beginning with the 1973 decision of Roe v. Wade. It seems quite elementary to point out that once this right achieved Constitutional stature–through the normal and established channels of the institutions of our republic established by the Founders–that is was beyond the powers of state legislatures to overturn. That is the law, but “law schmaw!”

Legislatures in numerous states have passed laws that place such extraordinary burdens on abortion that they threaten to make the practice legally impossible. Texas Gov. Perry has been frank in stating that his state’s laws were intended to make abortion “a thing of the past.” In terms of the rule of law, however, he might just as well seek to make freedom of speech a thing of the past.

Someday Roe v. Wade may be overruled by the U.S. Supreme Court in which case abortion law will be handled by some sort of different legal regime. Unless and until that is done, however, these actions by state legislatures, attempting to overrule the Supreme Court by state legislative fiat, are rogue and illegal attempts to sabotage an existing Constitutional right.

Conclusion and Observations:

Many other examples could be noted–particularly the systematic attempts of the GOP to suppress the voting of groups who tend to vote Democratic–but the pattern is clear. The GOP does not respect existing law, Constitutional or otherwise; it does not respect the democratic results of majority rule; and it is willing to employ virtually any tactic to undermine the law and impose its will from a minority position. I mentioned at the outset the many current comparisons of GOP tactics to those of the Confederacy.

Actually, though, the U.S. Civil War was not a true civil war. It was an attempted breakaway from a republic; an attempt at secession. A true civil war is one in which the sides are fighting for control of the whole country.

Edited by SS

Dan Boyd is a founding director of the Roosevelt Institute (rooseveltinstitute.org) and serves on its Board of Governors. He is a lifelong progressive and a Dallas-based trial and appellate lawyer.