NYT:

The Trump administration’s levying of political attacks on Democrats through federal agency websites and the out-of-office email messages of furloughed workers challenges the foundation of a nonpartisan civil service, a move that could deepen distrust in the government, according to experts and federal employees.

The deluge of messages blaming the “radical left” and Senate Democrats for the ongoing government shutdown that were shared across official channels serves as one of the most significant hits yet to the longstanding wall between federal workers and politics while they are on the job, historians said.

The messages immediately drew concerns that they may violate the Hatch Act, a Depression-era law intended to ensure that the federal work force operates free of political influence or coercion. Federal employees can engage in politics, but not while working.

“We have had lots of shutdowns,” said Don Kettl, an emeritus professor at the University of Maryland who studies the civil service, but “never before have top officials tried to use their employees as human shields in the partisan battle.”

The political messages put federal employees in an untenable position, said Kevin Owen, a lawyer with Gilbert Employment Law, who has been representing fired federal workers this year.

“What is going on right now is running counter to the trainings that some of these employees have had for 15, 20 years,” Mr. Owen said. “It’s bedrock principles of the civil service.”

Many current and former federal workers expressed shock at the administration’s decision to push employees into the partisan fray by having political language in the outgoing email messages of workers at the Departments of Education, Health and Human Services, Housing and Urban Development, Labor, and Veterans Affairs.

“Unfortunately, Democrat Senators are blocking passage of H.R. 5371 in the Senate which has led to a lapse in appropriations,” one version of an outgoing message said…

CBS News:

Republicans on Long Island are under fire after they filed a lawsuit to keep the name of a Democrat running for the Nassau County Legislature on the ballot even though he has been missing for over five months.

The family of Petros Krommidas, 29, said he disappeared after going for a swim in the ocean back in April and is now presumed dead.

Democrats were trying to get political activist James Hodge on the ballot instead, but Republicans filed a lawsuit against the change and a judge ruled Krommidas’ name must stay since he has not been legally declared dead….

Here is an excerpt from my essay this week in NYU’s Democracy Project series of essays on challenges facing democracy today, both here and elsewhere:

Writing from Mussolini’s prison in 1930, the Italian political theorist Antonio Gramsci observed of democracies in his era: “The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.”  In our era, something about the old forms of democracy also seems to be dying.

The last decade and a half have witnessed pervasive dissatisfaction with democratic governments throughout the West.  As a result, governments have become more fragile and unstable.  In the last two years alone, the governments of Europe’s dominant powers, Germany and France, have collapsed, as did those in Portugal, the Netherlands, and Canada.  The U.K. has been forced to hold three snap elections in the last seven years.  No matter which parties are in power, citizens are dissatisfied.

Politics is exceptionally turbulent.  Since 2000 in the U.S., every election but two has changed which party controls either the House, the Senate, or the White House.  That rate of churning is unprecedented.

All this reflects a new era I call one of “political fragmentation.”  Political fragmentation means the myriad ways in which practical political power is now dispersed among many different actors and centers of power, including a proliferation of insurgent political parties in Europe, more extreme political factions in the U.S., an explosion of organized outside groups, or the new-found power of even unorganized groups and a host of individual influencers.  This fragmentation of politics, which media fragmentation accelerates, makes it increasingly difficult to marshal sufficient political power and legitimate authority to address democratic citizens’ major concerns effectively….

Alienated from traditional political elites and parties, voters in the proportional-representation systems of Europe have turned to new, more extreme parties on the left and right, including anti-system parties.  The new-right parties have particularly exploded.  Marine Le Pen’s National Rally Party became France’s leading party after its recent 2024 election. Giorgia Meloni’s Brothers of Italy is Italy’s leading party; she is now Prime Minister.  The Alternative for Germany (AfD) became the second largest party in Germany’s most recent election.  Geert Wilders’ Party for Freedom is the largest in the Netherlands.  The Sweden Democrats are that country’s second largest party; in Portugal, the Chega Party, formed in 2019, is now the second largest.  Despite country-level nuances, many of these new-right parties endorse more restrictive immigration policies and traditional cultural values, while being economically populist and supportive of the welfare state.  As this chart shows, across 27 European countries, these parties in the aggregate now capture similar vote shares as the traditional center-left and center-right parties and coalitions:

Those who imagine older voters resistant to change drive support for these parties will be surprised.  Young voters, alienated and dissatisfied, support these new-right parties at high rates.  Among younger voters in most of these countries, these parties are either the most popular or the second most, with more extreme parties of the left the most popular….

These patterns also reflect the decline of the traditional left, as working-class voters across the West – a much larger share of the electorate than many realize – view the parties of the left as having abandoned their interests on economic and, even more so, cultural issues.  Across Europe, the average support for right-wing parties is 13 points higher than for left-wing parties, the largest gap since at least 1990.   This new landscape, fertilized by the communications revolution, makes politics more fragmented and turbulent, as parties struggle to figure out how to appeal to their radically reconfigured bases of support.

Similar forces have been re-shaping U.S. democracy, though they take different form in our two-party system.  The combined approval of the two parties in recent years is among the lowest ever recorded.  Disdain for traditional political elites is reflected in the appeal of outsiders:  Donald Trump, Bernie Sanders, Zohran Mamdani.  Donald Trump has absorbed into the Republican Party many of the policies of Europe’s new-right parties.  Democrats, particularly younger voters, have been turning to self-characterized socialists at the far pole of the party.  Reflecting the same realignment as in Europe, Donald Trump’s 2024 coalition in income and educational terms stunningly resembles Bill Clinton’s from the 1990s:

For better or worse, the U.S. two-party system, during unified government, makes it easier to overcome fragmentation than in Europe.  Whether Republicans in Congress this time can overcome the internal conflicts that limited their legislative achievements in Trump I, other than tax cuts, is too early to assess.  Executive action has dominated governance thus far, and even internally fractious parties typically approve their President’s nominees.  But a united Republican Congress did manage to pass the massive “Big Beautiful Bill.”  Whether Republicans will be united enough to pass further major legislation before the midterms remains to be seen.       

Perhaps the political fragmentation we see through much of democratic politics today is a “morbid symptom” of transition to a new form of democratic politics.  Much turns on whether it is temporary and contingent or more enduring.  Political fragmentation reflects continual democratic dissatisfaction, but perversely, also makes it that much harder for governments to respond effectively to citizens’ demands.  And when democracies are unable to do so, alienation and anger can give way to worse (or perhaps already has), including yearnings for strongman leaders who promise they alone can deliver. 

Next, here is an excerpt from Bob Bauer’s essay in the NYU Democracy Project’s series of 100 essays in 100 days:

…I entirely agree with critics who are very troubled by aspects of this [presidential immunity] opinion, including its holding that a president’s official actions may not even be introduced into evidence in a trial for alleged misconduct for which he cannot claim immunity. (For that matter, I have strongly disagreed with the executive branch opinions that have held that presidents enjoy full immunity while in office.) But it was not at all surprising that the Court held that, as a doctrinal matter, former presidents enjoyed a significant measure of immunity. The (unfortunate) logic across administrations supporting full immunity for incumbents would necessarily apply in some ways to prosecutions initiated after their terms ended. And it bears noting that, while contesting Trump’s claims of absolute immunity for a former president’s official acts, the Biden Administration endorsed the proposition that the criminal laws could not be applied to “core” presidential functions. Setting aside its immediate and rightly controversial impact on the Jan. 6 Trump prosecution, the constitutional question before the Court was complex and, in key respects, its future application in immunizing wrongful presidential conduct remains uncertain.

I do not see this decision, or others in which the administration prevailed during the most recent Term, as predictive of what the Court will do when finally ruling on the constitutionality of the birthright citizenship executive order, or the authority Trump claims for deportations under the Alien Enemies Act (AEA). The Court has insisted on due process and adequate notice in the case of the deportation of Venezuelans alleged to be cartel members. It has barred the removal from the country of a class of detainees under the AEA while appellate review is pending, after halting deportations in that case a month earlier in the early hours of the morning, and upheld a lower court order that the government “facilitate” the return of a deportee the administration had conceded was mistakenly removed from the country. On these issues (if not on others), the Court signaled that it will pay attention to what the administration does as well as what it claims it is doing. It is not so far clear that it will go as far as Trump and his radical constitutional theorists would want in advancing control of independent administrative agencies. The Court has already flinched in a preliminary order at extending broad presidential removal authority as far as the Federal Reserve. Related concerns may give the Court pause before it provides presidents with full control over agencies with politically charged missions, such as the Federal Election Commission (campaign finance) and the Election Assistance Commission (election administration), that Congress structured to ensure – for obvious reasons – that no one political party could direct their operations.

Again, time will have to pass, and perhaps a lot of time, before this argument about the Court can be settled one way or the other. And the signs are not by any means all positive.There is also this decisive and perhaps obvious consideration favoring ongoing progressive engagement with the Court. …

The defense against presidential supremacism and the progressive concern with the substantive direction of the constitutional law are not severable. Executives empowered to rule by executive order and emergency decree can – and indeed strive to – enact their constitutional agendas without having to worry as much about the courts. We have seen in a world of “separation of parties, not powers” that Congress may not impose much in the way of constraints. In this sense, when thinking about resort to the courts, progressives are not choosing between constitutional issues of presidential power and all others. Their substantive constitutional commitments hinge on a successful defense against presidential supremacy in moving policies that they abhor. That is, unless there is any thought that Democrats would want to take this model of supreme executive power on as their own, when their next turn in the Oval Office comes about. Perish that thought.

As for the argument that progressives should expect less from the courts and more from strategies of political action directed toward winning elections and shaping public opinion: well, yes, and not just as an answer to disappointments with this Court, but at all times.

Among other essays we published this week at NYU’s Democracy Project, we published three essays from the three of us who founded and direct the Project — Bob Bauer, Sam Issacharoff, and me. I’ll blog about each piece separately, starting with this excerpt from Sam’s piece:

Democracy requires a long-time horizon.  The winners of today must internalize that they might be voted out tomorrow, and the losers must believe the future might be rosier.  The presidential election of 1800 was the first time that a head of state had been removed through the popular franchise.  That engendered a norm of reciprocity that should prevail across the democratic world. Samuel Huntington famously declared that democracy is demonstrated by the two-turnover test: two successful rotations in office between rival political parties….

That period of party-driven politics now seems to be over.  Trade unions have dried up, church attendance is down, and local business associations are a weak countermeasure to the dominant power of a few large corporations.  In the U.S., the parties are swapping their historic bases as Republicans increasingly draw the more vulnerable sectors of the society and Democrats the wealthier and more educated.  The formal parties themselves have yielded power to charismatic individuals and well-heeled outside political players.  

As a result, how democracy works is being fundamentally altered.  In the U.S., Congress a half century ago would pass 300-400 pieces of legislation a year.  Now that number is in the 20-30 range, less than 10 percent as much.  Democracy is being defined increasingly as the election of a head of government who in turn rules by decree. …

Modern democracies are characterized by dominant executives and weak legislatures.  In the American context, Justice Robert Jackson characterized legislative inaction as auguring a period of constitutional “twilight” with corresponding pressures on the courts to counteract executive aggrandizement without legislative guidance.  And not just in the U.S., recently we have seen the muscular Miller decisions of the UK Supreme Court curbing the prorogation of Parliament.  

Clearly we are entering a new period of democratic politics with stronger executives and weaker political parties and other intermediary civic organizations.  The challenge of the day is to preserve the fundamentals of democratic competition in an uncertain institutional environment.  For the time being, courts are an indispensable stopgap.  But that is only for now, and only temporary.