Saving Democracy: What's Worked, What Hasn't

Lots of institutions in our constitution (written and unwritten) that were supposed to protect democracy have failed us over the last few years:

* The impeachment power

* The emoluments clause

* The 14th Amendment insurrection clause

* The 25th Amendment (relating to Presidential disablity)

* The criminal justice system (to punish bad actors before they gain political power)

* The Voting Rights Act

* The War Powers Act

* Contempt of court powers

* Independent agencies (including the U.S. Postal Service and most regulatory agencies)

* The Civil Service system

* The "Deep State"

* International treaties and international law

* The U.S. Supreme Court (which is the reason most of the other tools above didn't work, our system is too dependent upon it working well)

* Congress

* The 2nd Amendment (and armed resistance more generally)

* Political and legal norms

* Shame and civility norms

* Big law firms

Some American institutions (and countries) have actively hurt democracy in the United States, or put it in peril:

* The pardon power

* Presidential immunity from criminal prosecutions (newly invented)

* The limited scope of Bivens actions for illegal actions by federal officials compared to 42 U.S.C. § 1983 which creates a private civil action (however imperfect) for actions violating federal rights by state and local officials

* Standing law

* The Unitary Executive theory

* Far right legal scholars and far right judges (especially federal judges)

* The Federalist Society

* The Heritage Foundation and Project 2025

* Law by executive order

* Trump's Department of Justice

* The Insurrection Act

* ICE and its collaborators

* Private prisons and detention centers

* Federal anti-terrorism laws

* The demise of the legislative veto (old but material)

* Archaic legislature centered election administration laws

* The oil and gas industry

* The coal industry

* Cryptocurrencies

* Flock (the surveillance network company)

* AI

* The tech industry

* The billionaire class and its capacity to corrupt elected officials (especially Elon Musk)

* Child sex traffickers and lenient treatment of sex offenders

* Most Republicans in state and local government

* DINOs (Democrats in name only) in the U.S. Senate

* White Evangelical Christians

* Ecuador 

* Argentina

* Russia

* Qatar, Saudi Arabia, and UAE

Other institutions have been (sometimes surprisingly) fairly effective at defending democracy in the United States:

* Federalism (both state governments and local governments)

* State and local district attorneys and attorneys' general

* Immigration lawyers (who have been remarkably competent)

* Native American tribes

* Federal grand juries.

* Birthright citizenship

* The one man, one vote rule of constitutional law

* The U.S. District Courts

* The U.S. Courts of Appeal

* Republican election administration officials who weren't corrupt

* State attorney regulation systems

* The financial markets

* The news media

* Late night comedy shows

* The entertainment industry (with a small number of notable exceptions)

* Civic organizations devoted to protecting legal rights and helping people

* Protests and protesters

* Tow truck drivers

* K-12 school administrators, teachers, and bus drivers

* Strong mutually supportive local communities and grass roots activists, especially in places like Minneapolis, Los Angeles, and Portland, Oregon.

* The Catholic church (mostly) and the Pope (an American)

* Mail order abortion pills

* Hospitals

* Ukraine (not least, by destroying Russian data centers)

* Iran (despite itself, by winning victories in its war with the U.S. that drove up gas prices that soured MAGA on the GOP)

* Greenland and Denmark

* The British monarchy (especially for its Epstein class enforcement)

* Pre-MAGA Republican politicians who don't need to be re-elected

Other institutions, tools, and countries, which might have been expected to play stronger roles for good or ill, but ended up being more or less neutral bystanders or not very important include:

* The national guard (which attempts were made to use for ill, but which weren't very successful)

* The U.S. military

* Congressional Democrats (the minority party in both houses of Congress)

* Congressional Republicans (the majority party in both houses of Congress but with thin majorities and lots of infighting)

* Gerrymandering

* Political assassinations and political violence

* Most big businesses

* The Fed

* Unions

* Colleges and universities

* Black churches

* China

* India

Countries that have been mostly good role models (often by resisting or overthrowing authoritarian regimes), while having only modest direct influence on the U.S.:

* South Korea

* Indonesia

* Bangladesh

* Nepal

* Poland

* Serbia

* Hungary

* Spain

* France

* Ireland

* Brazil

* Paraguay

* Mexico

* Canada

* NATO

Institutions that have simultaneously done great good (or prevented great harm) and have done great harm:

* The Internet

* The SpaceX satellite telephone network

* Social media

* Local churches

* Incompetent Trump appointees

Wow!

What a great election day birthday birthday present.

The midterms have been a decisive, nearly unprecedented win for the Democratic Party, despite unprecedented efforts by President Trump nd billionaire campaign donors (especially Elon Musk) to thwart them and massive gerrymandering between censuses (with SCOTUS sanction) in an attempt to skew the vote in their favor, partially countered by counter-gerrymandering in blue states. Ironically, the five Congressional districts gerrymandered in August 2025 all ended up going blue.

It is mostly a strong reaction against President Trump, who is one of the most unpopular Presidents at this point in his term in all of U.S. history (or at least since Truman in 1946, eighty years ago) and is considered by most political scientists and historians to be the worst President of all time - the only one to have been impeached twice, a convicted felon, an adjudicated rapists in a civil case, profoundly corrupt, frivolously ignoring election results and trying to foment a coup on January 6, 2021, committing war crimes, pathologically lying, crass, suffering from dementia, pardoning serious unrepentant criminals for money, invading Venezuela to seize its President and steal its oil, mounting campaigns of revenge with the full power of the federal government against his perceived enemies, covering up his involvement in child rape and organized trafficking of children for prostitution involving many powerful people (including his current wife), betraying legitimate immigrants, waging war on academia, alienating our long time allies and favoring Russia, North Korea, and China, even when this leads to direct harm to U.S. troops, openly racist and making racism and neo-Nazi ideology and slogans part of federal government policy, ignoring Congress and the courts, appointing utterly incompetent loyalists, starting an unauthorized war that has driven up fuel and fertilizer prices, imposing illegal tariffs on a massive scale, ignoring the rule of law, and desecrating national architectural and natural treasures irrevocably and illegally. He was aided and abetted in doing so by a corrupt and ultraconservative U.S. Supreme Court that he appointed three members to serve upon.

From exit polls via National Public Radio.

Colorado turnout was more than 2,111,000 voters, which is very respectable for a midterm election in a state with no close statewide races and many not very close races for Congress.

Mischief between now and two months from now on January 6, 2027, when the newly elected Congress is supposed to take office, in the lame duck session, is a concern. One can hope that SCOTUS would discourage this given the mandate of the midterm elections.

Is MAGA broken now, or is this just a setback? 

Will SCOTUS respect the voice of the people rejecting the policies and lawless conduct they let Trump put in place and get away with?

For all the gains made, Democrats still won't be able to override Trump's vetos, but can use the power of the purse and litigation to enforce its laws already on the books. It can refuse to consent to Trump's appointees. Their majority won't be quite filibuster-proof, but past precedent has proven that the filibuster can be dispensed with in the "nuclear option." Still, a major issue for them will be their difficulty in delivering despite a decisive win, without the Presidency or the Supreme Court. And, the Presidential succession calculus doesn't change until January 6, 2027, so until then, the demise of, resignation of, or disability of, Trump or Vice President J.D. Vance could actually help Republicans in the longer run.

Trump has said he will respect the election results, perhaps because they were so decisive that there is no credible way to spin or twist them. So that might discourage mischief over the next two months.

The Republican Party in Colorado is in a shambles.

Congress

As I write, Democrats have 54 Senate seats (34 of which were not up for election this cycle, and 7 of which were flipped), Republicans have 44 (31 of which were not up for election this cycle), and 2 seats remain to be called. Alaska and Mississippi is too close to call with the Democrat leading by 43 votes with almost all votes counted, and more votes to be counted in Alaska in a close race where the uncounted vote locations slightly favor Democrats. Democrats will have 54-56 Senate seats when it is all over.

Independent anti-Trump moderate candidates made very strong showings in Nebraska, Montana, and Idaho, and Democrats in Montana and Idaho should have followed the lead of Nebraska and not run a candidate of their own. Their own candidates in those states served as spoilers coming in third place in the vote. These independents could be the seed of a successor to the Republican party.

Democrats re-elected Hickenlooper to the Senate in Colorado with 60% of the vote after he survived a too close for comfort primary fight from a more progressive candidate.

Democrats won Senate races in states like Kansas and Texas that they haven't won for decades. In many case, Democrats in red states won by double digit margins. 

Democrats have also done very well in U.S. House races with the called races running D 225 to R 139 as I write (218 seats is a majority), and are favored in 24 more competitive races. In the end it is likely to be D 255 to D 260ish. Democrats will have a large majority in the House, with perhaps a 75-85 vote lead over Republicans. Twenty-seven house seats have flipped so far.

Colorado has 8 house seats and went into the election with 4 held by Democrats and 4 held by Republicans. It looks likely that after this election Colorado will have either 7 or 8 Democrats in the House. CO-8 which is a northeast suburban Denver metro area district evenly split between Democrats and Republicans, was an easy red to blue flip. CO-5, which is Colorado Springs, is likely to flip blue. CO-4, which is roughly rural areas and medium sized cities in Eastern Colorado, is likely to flip blue as well. CO-3, which is roughly Western and Southern Colorado, is the closest race but the Democrat is currently leading by 0.2 percentage points in that race with 90% of the vote counted. There is about a 50% chance that all ten members of Colorado's Congressional delegation will be democrats, and a very high chance that it will be at least nine out of ten, flipping at least three seats in the House.

Denver's new member of Congress who successfully primaried a long time incumbent liberal but not progressive or activist Democrat, is a young democratic socialist progressive.

Governors

Democrats are on track to have at least 30 Governor's offices after this election, with another held by an independent. At least six Governor's slots will flip. Kansas is still a toss up in a very close race where the Democrat leads (which would be another flip). Two of the 20 Republican governors so far are from New England (Vermont and New Hampshire) and are moderates, not MAGAs. Five GOP Governor wins (FL, NH, TN, AL, SC) were by less than five percentage points.

Some of these states have not had a Democrat as a governor for decades.

State Elected Offices And Judges

In Colorado, every statewide office, every CU Regent seat and every state school board seat favors the Democrats, although the state school board seat in conservative Congressional District 3 is too close to call at this time. The new Democratic governor is more liberal than the outgoing Democratic governor. GOP candidates were trounced in statewide races. Democrat Phil Weiser got 61% of the vote.

Democrats are on track to win 49 of 65 seats in the state house in Colorado, which is more than a two-thirds majority, although several races are quite close. This flips six seats from before the election.

Tallying up the state senate results in Colorado is trickier since only half of the 35 seats are contested every two years for four year terms. A two-thirds majority is 24 seats and before the election, Democrats had 23 seats. There were actually 21 state senate seats on the ballot, since there were a few vacancies to fill. Democrats are leading or have won in 16 of them. But that doesn't get you to a total without knowing which parties hold 14 seats that voters didn't vote on this time. If Democrats hold 8 of the 14 seats not up for election this time (and they probably do), they have a two-thirds majority. There is no doubt, however, that Democrats will retain a majority in the state senate and a two-thirds majority is probably within reach when the dust settles, and at least probably gained some seats.

Four Colorado state court trial judges (none in Denver) will probably not be retained, which is the highest number in recent memorry. They are 10th Judicial District District Court Judge Alexander, 13th Judicial District District Court Judge Christiansen, 21st Judicial District District Court Judge Lawrence, and Crowley County Court Judge Boyce

Colorado State Ballot Issues And A Regional Ballot Issue

Colorado's ballot issue results are the only mixed bag. Measure NN diverting TABOR refunds to schools, and 7A funding an I-25/US-36 corridor passenger rail line and a measure to fund Denver schools will pass. 

Amendment 87 to establish a graduated income tax may get a majority but won't get the 55% it needs to amend the state constitution.

The ICE cooperation amendment (81) will fail. The right to use natural gas amendment (82) will fail. The right to hunt and fish amendment (83) will fail. The mail in voting ID amendment (84) will fail. The ban on multiple redistricting per decade amendment (86) will fail. The "plain english" amendment (85) may get a narrow majority but not the 55% support that it needs, so it will fail. Proposition 136 (capping income tax rates) will fail.

Proposition 132 (mandatory minimum fentanyl penalties) and Proposition 133 (mandatory minimum human trafficking penalties) will likely pass, even though law enforcement opposed them, but aren't state constitutional amendments, just laws. Propositions 134 and 135, which are anti-trans measures (134 for sports, 135 for surgeries on minors), will likely pass and become laws.

Proposition 137, a sporting goods sales tax for conservation law, is too close to call.

Denver Ballot Issues And Offices

A candidate endorsed by the Denver Democratic Party won about 28% of the vote (for a decisive win) in a large field of non-partisan candidates for a city council at large vacancy that lasts until the next municipal election is concluded in the spring of 2027.

All of the Denver ballot issues (including Initiative 311 banning fois gras, which I opposed) will pass.

Notable results in other states

Missouri rejected an initiative to establish a strict abortion ban. Idaho voters rejected an initiative to lift their strict abortion ban. California's Billionaire Wealth Tax proposal will probably be defeated. A proposal to mandate voter ID in Ohio passed.

I don't have the data to back it up, but I suspect that Democrats made gains almost across the board nationwide in down ticket candidate races, shifting power in their direction at the state level.

There were lots of demographic landmarks. The first Muslim Senator. The first openly gay man in the U.S. Senate. The first black women governors in two states. Two Native American firsts. The first Latino governor of California. And so on.

Random Bits

* Today, I learned that there is a genre called "HFY" which means "Humanity, Fuck Yeah!", that flips the trope of advanced and superior aliens to portray humans an exceptional and lauds our species' positive traits against the space opera foil of other more established interstellar aliens types who lack those traits. I'd read stories in this genre many times before but never realized that it was a genre.

* A psychology tiktok discussed how the easier learning stays the less it sticks in the long run. It recommends focusing on testing yourself, closed book, on what you can recall, spacing study sessions weeks apart, intertwining concepts and types of problems rather than studying them in blocks of the same thing, restating concepts you've studied in your own words, and focusing on connecting new facts to existing frameworks and related concept. It cites:

Bjork, R.A. — "Desirable difficulties" framework 

Bjork, R.A. & Bjork, E.L. (1992) — New theory of disuse 

Roediger, H.L. & Karpicke, J.D. (2006) — Testing effect study

Karpicke, J.D. & Roediger, H.L. (2008), Science — Retrieval practice study 

Pashler, H., McDaniel, M., Rohrer, D., & Bjork, R. (2008) — Learning styles literature review 

Rohrer, D. et al. — Interleaved vs. blocked practice studies 

Chase, W.G. & Simon, H.A. (1973) — Chess expertise study

* In the not new, but still true department:

* One of the truly striking things about the 2026 election is how high the quality of the Democratic candidates is and how low the quality of the Republican candidates is. The Democratic candidates are moderately better than average. The Republican candidates are truly pathetic. As a New York Times opinion column explains:

In race after race, Democrats have managed to recruit and advance candidates who are well positioned to capitalize on changing political circumstances. Even if he were not facing off against Ken Paxton, an experienced but still strikingly weak candidate, James Talarico would still be an impressive recruit. He is a natural communicator — whose seminarian background and personal faith have been a great asset in winning over Texas voters — and he has proved to be both nimble and aggressive, able to hold Paxton’s feet to the fire despite facing an onslaught of cash from outside groups and actors, like Elon Musk.

You could say similar things of Adam Hamilton in Kansas, perhaps the surprise candidate of this cycle, who is running a competitive race against the Republican incumbent, Roger Marshall. Hamilton is a religious leader — the founder and senior pastor of the Church of the Resurrection, the largest United Methodist congregation in the United States — with broad appeal in a state that is, like Texas, known for its deep religious feeling. With his moderate politics, Hamilton has successfully presented himself as a bipartisan figure, with support from prominent Republicans in Kansas. It also helps that Marshall, a doctor, has struggled in the face of revelations that he took harsh and punitive action against his patients, dragging them to court for trivial amounts of money.

Other Democratic candidates, such as Josh Turek in Iowa, Sherrod Brown in Ohio and Troy Jackson in Maine, have also successfully capitalized on the Republican Party’s worsening electoral position. And even those Democrats who might be a little more progressive than their electorates — Peggy Flanagan in Minnesota and Abdul El-Sayed in Michigan — show a great deal of political talent and are well-positioned to win.

As for the Republicans, the opposite appears to be true. There are a few candidates in the field who may well outperform the fundamentals, like the Iowa Senate nominee Ashley Hinson. Michele Tafoya in Minnesota also seems to be keeping up with her opponent. But beyond them, Republicans are working with candidates who are just not up to snuff. In Georgia, Mike Collins has been marred by his associations with white nationalists and other extremists, and is headed for a crushing defeat in his race against the incumbent, Senator Jon Ossoff. Darline Graham in South Carolina is barely ahead of her Democratic opponent, and again, this is South Carolina. The aforementioned Ken Paxton is such a lackluster candidate that he may well deliver the Texas Republican Party its first statewide defeat for federal office since 1988.

Perhaps the most striking example of a candidate ill-equipped for a competitive race is Vivek Ramaswamy, the Republican nominee for governor of Ohio. Ramaswamy ran unsuccessfully for the 2024 Republican presidential nomination, then returned home to Ohio to try to lead the party there. Perhaps the fact that Republicans were not anticipating a competitive year is how Ramaswamy managed to win the nomination. Either way, he is currently poised to lose to the Democratic nominee, Amy Acton.

In apparent desperation, the Ramaswamy campaign commissioned an advertisement featuring Amy Acton’s mother. The two have not seen or spoken to each other since 1978. As a child, Acton testified against her stepfather, who was charged with sexually abusing her. Acton’s mother took her husband’s side, and the two fled the state. In the advertisement, Acton’s mother calls her daughter a liar, someone who “lies about her past.” The evidence says otherwise. To give one example, documents released by Mahoning County officials in Ohio corroborate Acton’s claim that she lived in a tent as a child.

The Ramaswamy camp, which includes fellow Ohioan JD Vance, thinks the ad is effective. But it’s been condemned by people on both sides, including the state’s Republican governor, as crude, craven and cruel. There is a chance, as well, that it blows back on Ramaswamy, undermining his campaign in the critical final stretch of the election. It is the kind of move that a more seasoned and competent candidate might have avoided. As it is, Ramaswamy’s gambit may well drag down the entire statewide ticket. 

* Then there is this (extracted from this Facebook reel):

* The U.S. Supreme Court has really, really failed us in these last couple of years. They were the part of the system that was supposed to prevent so many of the abuses of Trump 2.0. And, the lower trial and intermediate appellate courts, on balance, did much better.

* Is our system broken? It certainly isn't perfect. But the midterms, if the Democrats make an unprecedented surge to gain control of both houses of Congress, and those elections are honored, and Democrats in control of Congress manage to exert significant power, could show that it isn't completely broken. The basic design feature of a democracy is that is the party in power screws up in an unpopular way, that voters will replace them and deprive them of power. Voters get to do so every two years in the U.S., which is a shorter reaction time than in parliamentary systems where a prime minister can lose the confidence of parliament on very short notice and lose power, but the U.S. makes up for it a little by having strong federalism and powerful courts to slow down serious misconduct and bad policy at the top. If we survive this crisis for now, does that show that our system works? Or are we just hitting a temporary respite from a decline driven by a broken system?

* Another feature of a Democratic party majority in Congress, is that it changes the logic of political succession. It puts a Democrat right after the Vice President in the line of succession. If Trump, who is not a very healthy man and 80 years old, were to die or be so disabled that he couldn't function, or was removed via the 25th Amendment, then J.D. Vance would be President, and J.D. Vance couldn't fill the Vice Presidency without cooperation from a Democratic Party controlled Congress. And, in the absence of a Vice President, the Democrat who is elected to be Speaker of the House would be next in line for the Presidency. While most Presidential assassinations aren't attempted by rational people (although there have been three apparent Presidential assassination attempts so far, one of which can close to being successful, so far in Trump 2.0), rationally, it doesn't make a lot of sense to try to assassinate a President when the next dozen people in the line of succession are just as bad. But, if either J.D. Vance or Trump ceases to hold their current office, then the nation is just one assassination away from a complete flip of control of the Executive branch to a politically dramatically different alternative, a Presidential assassination makes a rational political sense at a fairly narrow immediate level, and the list of people or organizations with an incentive to do it then (many of them powerful and well-organized), gets longer than the line at the DMV. To be clear, I'm not advocating that anyone assassinate anyone (and an assassination isn't even necessary, just circumstances that cause two elected officials to vacate their offices). Undermining the norm against assassinating politicians (which is stronger in the U.S. than in many countries), opens up a huge can of worms that poses an immense risk of ending democracy in the medium term, even if it stops a despot in the short term. I'm just observing that the political logic for someone to do so changes dramatically. And, since the system that was supposed to deal with this situation in the constitution (impeachment) has proven to be completely inadequate (since it requires a two-thirds majority support in the U.S. Senate which has shown itself to be entirely partisan in its behavior, and a two-thirds Senate majority is almost impossible to achieve), there is strong pressure from the system to find other ways to remove grossly of the rails officials.

* Prediction markets are tolerably accurate at predicting things in many domains.

* What would a society where inheritance and nepotism in business and wealth succession were largely gone, in analogy to ending monarchy and aristocracy, look like? One recent study in historical economics suggests that the impact wouldn't be all that large, but it has limitations that make me doubt it (it is based largely on the impact on inheritance amount and likelihood based upon random variations in family size).

The 5th Circuit En Banc Decision On Pre-Hearing Immigration Detention

One of the key issues in immigration law is whether someone detained for being an undocumented immigrant pending a removal hearing in which that person has statutory grounds upon which they could not be deported, who is detained in the interior of the U.S. rather than at the border, and has long standing ties to the U.S. as a resident of the U.S. is entitled to a bond hearing that evaluates their dangerousness and flight risk.

The second Trump administration has taken the position that an undocumented immigrant who awaits a removal hearing may be detained indefinitely, no matter how long the hearing is delayed, no matter where they were detained or how long they have been in the U.S. or what grounds they have to not be deported, and that these individuals have no right to a bond hearing to give those individuals an opportunity to be released before their removal hearing. (The Trump Administration has also explicitly told private contractors operating immigration detention centers that the conditions of confinement should be cruel, but that is a story for another day.)

Thirty years of prior practice of the Executive Branch, prior to Trump 2.0, under the immigration statute adopted in 1996 and since amended in ways largely immaterial to this question, have held that there is a right to a bond hearing to assess whether someone awaiting a removal hearing is dangerous or a flight risk, while that removal hearing is pending (and at a time when the government has not established before an immigration judge that they are entitled to deport someone). This was also the prevailing practice pre-1996, including in the pre-1907 period which the majority mischaracterizes, as a dissenting opinion notes. As explained at page 136 of the Slip Opinion in a dissenting opinion:

The Government and the majority repeatedly cite the Supreme Court’s footnote in Demore v. Kim, 538 U.S. 510 (2003), that “prior to 1907 there was no provision permitting bail for any aliens during the pendency of their deportation proceedings.”  Id. at 523 n.7.  That sounds significant, but, prior to 1907 this country simply did not detain persons potentially unlawfully present in the interior except in extraordinary circumstances and under narrowly drafted laws; and, when it did so, the general rule was that bail would be available.  See Nash, supra, at 1540–41, 1564–76.4  In other words, the practice of seeking out people unlawfully present in this country in the interior en masse is an invention of modern immigration law.  The practice (challenged here) of seeking out persons unlawfully present in this country in the interior and subjecting them to detention without meaningful process or the possibility of bail—that is, to what was long understood to be the statute applicable at ports of entry, § 1225(b)(2)(A), rather than the interior detention statute, § 1226(c)—is a recent invention of the Department of Homeland Security in the last year or so contradicting its almost three decades old practice.   

Nine of the eleven numbered geographic circuits of the U.S. Courts of Appeal (ignoring the U.S. Court of Appeals for the Federal Circuit which doesn't have jurisdiction over these cases) have held that there is a right to a bond hearing under the applicable U.S. Supreme Court precedents (admittedly, most of which were decided before the current ultra-conservative majority arose in the U.S. Supreme Court, and the current U.S. Supreme Court often shows little regard for its prior precedents or a lower court near consensus). There does not appear to be a case on point out of the U.S. Court of Appeals for the D.C. Circuit.

So did a 2-1 decision of a three judge panel of the 5th Circuit, and three U.S. District Courts who ruled in favor of the people seeking bond hearings that the government appealed to the 5th Circuit. So did 7 of the 17 judges of the 5th Circuit in a sua sponte review en banc in an 159 page set of majority, concurring, and dissenting opinions announced today of that 2-1 decision in the case of Rodriguez v. Vergara (and two other cases consolidated with it).  

Just counting noses in the 5th Circuit who have considered this case (including the trial court judges in these cases), 10 judges ruled that there is a right to a bond hearing and 10 judges ruled that that there was not. It also bears noting that even the current extremely conservative U.S. Supreme Court reverses decisions of the 5th Circuit more than any other U.S. Circuit, generally, in a less conservative direction than its decisions. 

The 5th Circuit en banc majority relies heavily on a U.S. Supreme Court case involved sex offender registration for a general principle (a circumstance where dangerousness is a presumptively present in almost every case), which is Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 8 (2003), rather than prior U.S. Supreme Court immigration cases on point, in a very strained analogy.

The only other U.S. Court of Appeals denying bond hearings is that 8th Circuit (which is also very conservative, although so is the 11th Circuit that went the other way), and the 8th Circuit which also followed a related 5th Circuit precedent, Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), cert. sought and neither granted nor denied at this point, in which the 5th Circuit make a minority interpretation of the relevant immigration statute. See Slip Op. at pg. 100 (in a dissenting opinion). See also Slip. Op. at pg. 141 (in a dissenting opinion) ("On appeal, only this court in Buenrostro-Mendez v. Bondi (and the Eighth Circuit, following us) has accepted the Executive Branch’s statutory arguments for its recent about-face.  See 166 F.4th 494, 502–05 (5th Cir. 2026); Avila v. Bondi, 170 F.4th 1128, 1132–36 (8th Cir. 2026).").

District judges reportedly have rejected the government's position in more than 9,300 rulings (see also page 154 of the slip opinion), relying especially upon Zadvydas v. Davis, 533 U.S. 678 (2001), and three certiorari petitions are pending. As noted at page 144 of the Slip Opinion: "The Supreme Court thus far has not accepted certiorari in the sole petition to squarely pose the due process question.  See Petition for Writ of Certiorari, Putra v. LopezCampos, No. 25-1415 (U.S. filed June 22, 2026), https://perma.cc/8TXG-9S4J.  Rather, it first will assess the full statutory picture. See Rhoney v. Barbosa da Cunha, No. 26-104, 2026 WL 2942994 (U.S. Oct. 1, 2026) (granting certiorari)." 

Another key recent U.S. Supreme Court decision, which the en banc majority in the 5th Circuit today and the dissenters in the same decision disagree upon the meaning of is DHS v. Thuraissigiam, 591 U.S. 103 (2020), in which the U.S. Supreme Court ruled against someone who was just 25 feet across the U.S. border regarding their immigration law rights. The majority pretty clearly misreads this decision as applying to immigrants who have lived in the U.S. for more than a decade and have strong ties to U.S. citizen children, which the decisions plain language seems to contradict.

A footnote on page 133 of the slip opinion linked above, to a dissenting opinion, sums up the circuit split:

The majority’s holding places our court in a minority position among the circuits. See Guerrero Orellana v. Moniz, 188 F.4th 1, 29 (1st Cir. 2026); Barbosa da Cunha v. Freden, 175 F.4th 61, 96 (2d Cir. 2026), cert. granted sub nom. Rhoney v. Barbosa da Cunha, No. 26104, 2026 WL 2942994 (U.S. Oct. 1, 2026); Buele Morocho v. Warden Phila. FDC, No. 261150, 2026 WL 2546223, at *10 (3d Cir. Aug. 28, 2026); Lopez Garcia v. Guadian, No. 257044, 2026 WL 2661092, at *21 (4th Cir. Sept. 10, 2026); Lopez-Campos v. Raycraft, 175 F.4th 713, 735 (6th Cir. 2026); Cirrus Rojas v. Olson, 183 F.4th 909, 931 (7th Cir. 2026); Padilla v. United States Immigr. & Customs Enf’t, No. 24-2801, 2026 WL 2822044, at *19 (9th Cir. Sept. 21, 2026); Santillan Quiroz v. Mullin, 180 F.4th 1226, 1251 (10th Cir. 2026); Hernandez Alvarez v. Warden, Fed. Det. Ctr. Mia., 175 F.4th 1258, 1285 (11th Cir. 2026). 

Without today's en banc ruling, the 8th Circuit's ruling in Banyee v. Garland, 115 F.4th 928, 933–34 (8th Cir. 2024) (holding that a lawful resident alien could be detained pending removal for over a year as long as “deportation remain[ed] a possibility”) would have been a solitary outlier.

The circuit by circuit analysis is a little complicated, because all immigrations cases funnel up to the national Board of Immigration Appeals (BIA), which like the courts it reviews is an Article II court of the executive branch that is not judicially independent, and then from there to the U.S. Court of Appeals Circuit in which the case arose at the immigration trial court level. As explained at page 154 of the Slip Opinion:

Article II IJs generally are not bound by Article III district court precedent, just that of courts of appeal.  The BIA has stated that it, “as well as Immigration Judges, [is] bound to follow [BIA] precedent, the Attorney General, and the circuit court of appeals with jurisdiction over the geographic region where a case occurs.”  Matter of Garcia, 28 I. & N. Dec. 693, 695 (B.I.A. 2023); see Matter of Anselmo, 20 I. & N. Dec. 25, 31 (B.I.A. 1989) (noting that the BIA has permitted intercircuit nonacquiescence, but “has not followed a practice of nonacquiescence in decisions of a circuit court in cases arising within the jurisdiction of that circuit”).   

But, habeas corpus review starts in a U.S. District Court (an Article III independent trial court) in a collateral attack on immigration court decisions and proceeds in the usual way to the relevant U.S. Court of Appeals Circuit.

Today's 5th Circuit en banc decision is in my view, clearly wrong under existing precedents, and affects many hundreds of thousands of people in a highly material way. There is little doubt that the U.S. Supreme Court will eventually chime in, and it is not at all clear how it will resolve the issue, since it involves a signature position of the Trump administration which the current U.S. Supreme Court has upheld in all but the most extreme instances of overreach.

Standing Law Still Broken

The U.S. law of standing basically states that even if the government or a government official is blatantly violating a law that benefits everyone, that unless someone can show how the violation of the law affects them in a way distinct from the way if affects taxpayers or voters or citizens, in general, that no one can enforce the law.

Most mainstream jurists manage to find a way to find standing in cases of clear violations of the law, but the ultraconservatives in the U.S. Supreme Court have used this doctrine to allow Trump to keep building the White House Ballroom in gross violation of the relevant law. The Chief Justice and the three liberal justices voted to prevent him from his clearly illegal actions, but were outvoted 5-4 on a standing argument.

No other sensible system of public law takes this approach. Standing was a rule invented for litigation between private parties that has never worked well in the public law setting.

The Executive-Judiciary Interface In Undermining The Rule Of Law

One of the most distinctive features of Trump 2.0 has been the breakdown of the rule of law. The administration has routinely ignored the law and settled interpretation of existing law in a wide variety of domains.

It has enacted illegal tariffs, it has denied due process to immigrants, it has deported immigrants to countries to which they have no connection, it has illegally impounded Congressionally appropriated funds, it has conducted the Iran war without complying with the war powers act, it has illegally and in violation of international law bombed suspected drug boats in the Caribbean and the Pacific and killed survivors of its attacks, it has unlawfully meddled in state election processes, it has fired government officials whom Congressionally enacted statutes don't allow it to fire, it has pardoned January 6 insurrectionists, it has corruptly allowed officials to benefit personally in monetary terms from their offices, it has openly admitted to denying FEMA disaster relief based upon how states have voted in recent elections, it has brought sham criminal prosecutions of political opponents, and so on.

Trump 1.0 was odious, incompetent, dishonest, and violated some political norms and legal rules, but shows much less disregard for the rule of law and for well-established political and legal norms.

What changed? How will that affect future administrations?

A lot of the change can be fairly attributed to the courts, especially lower court judges appointed by Trump and the U.S. Supreme Court, which attained a conservative majority and an ultra-conservative plurality under Trump 1.0, consistently letting Trump circumvent rulings against him personally, and against his administration, made by lower courts and non-Trump appointed judges (including many judges appointed by Republican Presidents in prior administrations).

The U.S. Supreme Court's decisions to grant Trump expansively Presidential immunity from criminal liability for his official or arguably official acts (even if they are clearly ultra vires), and to interpret the insurrection clause out of the 14th Amendment, were some of the earliest and most damaging of its steps down this path.

Yes, the U.S. Supreme Court hasn't given Trump a complete blank check in Trump 2.0 to be a dictator, largely because the non-ultra conservative justices and the liberal justices on the Court has sometimes formed coalitions to block the ultra-conservative agenda. But this hasn't been consistent enough to discourage mischief in the executive branch.

Of course, the Republican controlled Congress also hasn't pro-actively intervened, but as some justices on the Supreme Court such as Gorsuch are starting to acknowledge, while Congress has significant power to deny funds to the President, Congress has very little capacity to pro-actively contradict or restrain a President inclined to ignore it.

The relative irrelevance of Congress has also been illustrated by Trump 2.0's heavy reliance on executive orders to act, rather than Congressional legislation, despite the fact that Republicans hold majorities in both the House and the Senate, and despite the fact that past precedents have pretty well established that the filibuster in the Senate is a voluntary restraint that the Republican Senate majority has afforded to the minority, and not a legally binding barrier to action, and despite the tight hold that Trump has acquired over the Republican party, effectively turning it into a MAGA party.

So, the existence of a GOP trifecta has, in practice, been less important to the disappearance of the rule of law than judicial and especially U.S. Supreme Court, connivance in facilitating unilateral illegal actions by President Trump (in a highly partisan fashion that it did not afford to President Biden).

Indeed, if anything, the Republican majorities in Congress have been more even handed in protecting the limited rights of the minority Democrats in Congress on a non-partisan basis, than SCOTUS has been in its rulings, many of which simply can't be explained by anything but partisan bias.

Colorado's State Bivens Law

Colorado's General Assembly has enacted a state law authorizing suits for money damages against federal, state, and local officials violating federal constitutional rights in connection with civil immigration enforcement, because the U.S. Supreme Court has declined to extend Bivens (a U.S. Supreme Court case which created a federal common law remedy in the form of a private civil action for damages for certain violations of federal constitutional rights by federal officials) to do so. The bill has not yet been signed by the Governor, but he has not publicly threatened to veto the bill either.

Ideally, it wouldn't have been limited to civil immigration enforcement, which may be the provision of the law which makes it most vulnerable to being held unconstitutional, as immigration law is a purely federal function, but it isn't at all clear that narrowing this law beyond its maximum constitutional scope invalidates it, and there is quite a bit of law (outlined in Section 1 of the bill) which supports the conclusion that this mostly unused check on misconduct by federal official is constitutional.

The limitation of the law to civil immigration enforcement, however, does limit room to complain that the waiver of various immunities would do serious mischief to the ordinary actions of law enforcement in the state at the state and local level.

The bill's full and final text is below:

Senate Bill 26-05:

Be it enacted by the General Assembly of the State of Colorado: 

SECTION 1.  Legislative declaration. 

(1)  The general assembly finds and declares that: 

(a)  Since the earliest days of the nation, the United States supreme court has held, in cases such as Little v. Barreme, 6 U.S. 170 (1804), and Murray v. The Charming Betsey, 6 U.S. 64 (1804), that federal officials may be liable in damages for violations of federal laws; 

(b)  In later 19th century cases as well, the United States supreme court held that federal officials could be liable for damages even for reasons relating to but beyond the lawful scope of federal duties, Mitchell v. Harmony, 54 U.S. 115 (1851), and in particular that state courts possessed jurisdiction to consider such damages claims, Teal v. Felton, 53 U.S. 284 (1852); 

(c)  The United States supreme court has long held that federal employees are not inherently beyond the reach of state laws simply because they are federal employees. For example, in Johnson v. Maryland, 254 U.S. 51 (1920), the court noted, "[A]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment", and in Colorado v. Symes, 286 U.S. 510 (1932), the court stated, "Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law". 

(d)  Decades later, the United States supreme court continued to recognize the role of state law in holding federal officials accountable for legal violations, noting in Wheeldin v. Wheeler, 373 U.S. 647 (1963), "[w]hen it comes to suits for damages for abuse of power, federal officials are usually governed by local law"; 

(e)  When the United States supreme court recognized a federal law cause of action for violation of certain constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), that cause of action was in addition to, rather than instead of, traditional state law remedies. Even one of the dissenting justices in Bivens noted the ongoing role of state courts, writing, "The task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the legislatures of the States". 

(f)  More recently, congress has made federal statutory law the exclusive remedy for certain claims sounding in tort, but this exclusivity specifically "does not extend or apply to a civil action against an employee of the Government [. . .] which is brought for a violation of the Constitution of the United States", 28 U.S.C. sec. 2679. The prime sponsor of legislation amending the federal "Tort Claims Act" to provide for limited exclusivity took pains to clarify, "We make special provisions here to make clear that the more controversial issue of constitutional torts is not covered by this bill. If you are accused of having violated someone's constitutional rights, this bill does not affect it", 134 Cong. Rec. 15963 (1988). 

(g)  In 2022, in declining to extend the scope of the Bivens action in Egbert v. Boule, 596 U.S. 482 (2022), the United States supreme court observed that legislatures, not courts, are the better branches of government to fashion damages remedies; 

(h)  In its most recently completed term, the United States supreme court declined, in Martin v. United States, 145 S. Ct. 1689 (2025), to extend the doctrine of supremacy clause immunity beyond its traditional criminal law context; 

(i)  Violating the federal constitutional rights of residents of the United States has never been and can never be "necessary and proper" to the execution of the laws and powers of the United States within the meaning of article I, section 8, clause 18 of the United States constitution; and 

(j)  In enacting this act, the Colorado general assembly affirms its longstanding and rightful role as a sovereign state in providing forum in its courts for adjudication of claims of federal constitutional violations. 

SECTION 2.  In Colorado Revised Statutes add 13-20-1302 as follows: 

13-20-1302.  Civil action for violation of constitutional rights during immigration enforcement - relief - attorney fees - time limit to commence action - definition. 

(1)  A PERSON WHO HAS THEIR RIGHTS THAT ARE GUARANTEED BY THE UNITED STATES CONSTITUTION VIOLATED BY ANOTHER PERSON WHO, ACTING UNDER COLOR OF ANY FEDERAL, STATE, OR LOCAL LAW, IS PARTICIPATING IN CIVIL IMMIGRATION ENFORCEMENT, MAY BRING A CIVIL ACTION AGAINST ANOTHER PERSON WHOSE CONDUCT WAS THE PROXIMATE CAUSE OF THE VIOLATION. A PERSON FOUND TO HAVE VIOLATED THE UNITED STATES CONSTITUTION WHILE PARTICIPATING IN CIVIL  IMMIGRATION ENFORCEMENT IS LIABLE TO THE PERSON WHOSE RIGHTS ARE VIOLATED FOR LEGAL OR EQUITABLE RELIEF OR ANY OTHER APPROPRIATE RELIEF. 

(2) (a)  IN AN ACTION BROUGHT PURSUANT TO THIS SECTION, A COURT SHALL AWARD REASONABLE ATTORNEY FEES AND COSTS TO A PREVAILING PLAINTIFF. IN ACTIONS FOR INJUNCTIVE RELIEF, A COURT SHALL DEEM A PLAINTIFF TO HAVE PREVAILED IF THE PLAINTIFF'S SUIT WAS A SUBSTANTIAL FACTOR OR SIGNIFICANT CATALYST IN OBTAINING THE RESULTS SOUGHT BY THE LITIGATION. 

(b)  WHEN A JUDGMENT IS ENTERED IN FAVOR OF A DEFENDANT, THE COURT MAY AWARD REASONABLE COSTS AND ATTORNEY FEES TO THE DEFENDANT FOR DEFENDING ANY CLAIMS THE COURT FINDS FRIVOLOUS. 

(3)  TO THE MAXIMUM EXTENT PERMISSIBLE UNDER THE UNITED STATES CONSTITUTION AND 42 U.S.C. SEC. 1983, A GRANT OF IMMUNITY TO A DEFENDANT, INCLUDING, BUT NOT LIMITED TO, SOVEREIGN IMMUNITY; OFFICIAL IMMUNITY; INTERGOVERNMENTAL IMMUNITY; QUALIFIED IMMUNITY; SUPREMACY CLAUSE IMMUNITY; STATUTORY IMMUNITY, INCLUDING THE "COLORADO GOVERNMENTAL IMMUNITY ACT", ARTICLE 10 OF TITLE 24; OR COMMON LAW IMMUNITY, DOES NOT APPLY IN AN ACTION BROUGHT PURSUANT TO THIS SECTION. 

(4)  AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES, "CIVIL IMMIGRATION ENFORCEMENT" MEANS AN ACTION TO INVESTIGATE, QUESTION, DETAIN, TRANSFER, OR ARREST A PERSON FOR THE PURPOSE OF ENFORCING FEDERAL CIVIL IMMIGRATION LAW. "CIVIL IMMIGRATION ENFORCEMENT" DOES NOT INCLUDE AN ACTION COMMITTED BY A PEACE OFFICER WHO IS ACTING WITHIN THE SCOPE OF THE PEACE OFFICER'S DUTIES CONSISTENT WITH STATE LAW. 

(5)  PURSUANT TO SECTION 13-80-102, A CIVIL ACTION DESCRIBED IN THIS SECTION MUST BE COMMENCED WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUES. 

SECTION 3.  In Colorado Revised Statutes, 13-80-102, amend (1)(k); and add (1)(l) as follows: 13-80-102.  General limitation of actions - two years.  The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, must be commenced within two years after the cause of action accrues, and not thereafter: 

(k)  All actions brought under AND PURSUANT TO section 13-21-109(2) [ed. the bad check statute]; 

(l)  AN ACTION ALLEGING A VIOLATION OF CONSTITUTIONAL RIGHTS DURING CIVIL IMMIGRATION ENFORCEMENT BROUGHT PURSUANT TO SECTION 13-20-1302. 

SECTION 4.  Severability. If any provision of this act or the application of this act to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable. 

SECTION 5.  Appropriation. (1)  For the 2026-27 state fiscal year, $125,604 is appropriated to the department of law. This appropriation is from the legal services cash fund created in section 24-31-108 (4), C.R.S., from revenue received from the department of personnel that is continuously appropriated to the department of personnel from the risk management fund created in section 24-30-1510 (1)(a), C.R.S. The appropriation to the department of law is based on an assumption that the department of law will require an additional 0.5 FTE. To implement this act, the department of law may use this appropriation to provide legal services for the department of personnel.

SECTION 6. Safety clause. The general assembly finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety or for appropriations for the support and maintenance of the departments of the state and state institutions.

Brainstorming Possible Public Law Reforms

There are important gaps in our public law system:

* If we are to reject taxpayer standing, voter standing, and citizen standing, we need to empower someone to enforce violations of the law that harm the general public, but not any specific person differently from any other, like many forms of public corruption.

* Judges should have the power to remove government officials who defy court orders and commit serious breaches of the public trust from office, certainly, officials who are not elected officials.

* There needs to be a parallel to 42 U.S.C. § 1983 for federal officials and agents (i.e. people who act under color of federal law) that is more robust than the federal common law Bivens remedy, which doesn't cover all federal officials or all federal rights.

* The unitary executive theory adopted by the U.S. Supreme Court is just a pure political trick, with no historical basis. INS v. Chadha (1983), in which the U.S. Supreme Court held that legislative vetos in duly enacted laws were unconstitutional was also a bad decision.

* The gutting of the insurrection clause of the 14th Amendment by SCOTUS was a horrible legal decision not supported by any fair reading of the document.

* The grant of immunity from criminal prosecution for all official acts of the President was a very bad idea. Granting both civil immunity and criminal immunity should be a matter of common law or statutory law that can be changed by Congress, not a matter of constitutional law.

* Granting unfettered pardon power to the President now looks like it was a bad idea on the part of the Founders. Notably, a great many U.S. states do not afford the same power to their Governors.

* Requiring a two-thirds majority of both Houses of Congress to override a Presidential veto greatly upsets the proper balance of power between Congress and the President. Let the President veto legislation that unwittingly contains a bad provision which the President noticed but Congress did not. But let them reaffirm and override it by a simple majority of both houses. Part of the big picture problem in the United States is that it is far too hard to legislate, so the courts and regulations adopted by the executive have to fill the gap.

* Making the respective houses of Congress the judges of their own elections was a bad idea.

* The impeachment power is too weak and too political. And, it should be easier and less political to remove a President (or any other public official) for disability.

* A proposal is pending in Colorado to remove absolute immunity for prosecutors from civil liability, which as drafted I don't support, even though I can somewhat sympathize with the motivations for it. Judges also have absolute immunity. I think that the solution is to make a finding of professional or judicial misconduct or criminal conduct have the collateral consequence of forfeiting absolute immunity, with the statute of limitations for a private civil action to impose liability in those cases running from the time that there is a final criminal conviction or of professional or judicial misconduct. If a judge convicts you of a crime and sentences you to a private prison due to a bribe from a private prison investor, and the judge is convicted of that, the judge should have civil liability to you.

* An alternative to the fault based approach of § 1983 and Bivens for civil rights violations, would be to instead adopt the takings jurisprudence that applies when the government takes property without fair compensation. Rather than being perpetrator focused, if someone is deprived of their civil rights, they would be entitled to just, compensatory only, compensation, by the government under whose color the deprivation occurred, without regard to the intent of the person violating the right, and without individual liability on the part of the agents who participated in the deprivation of civil rights. Indemnification and defense mandates of public employees basically gets you to a similar place in most cases, but denies any relief when someone is deprived of life or liberty wrongfully, if no one individual intentional or almost intentionally violates their rights (e.g. if the injuries or destroyed property or other harm arose from mere negligence or mistakes, or due to broken systems rather than malicious individuals). Thus, if you were incarcerated and later found to be innocent, or incurred attorneys' fees defending a criminal case only to be acquitted, you would be entitled to compensation from the government that brought the charges and incarcerated you, without regard to how you were wrongfully convicted or were charged with a crime for which you were not convicted. Qualified immunity and intent requirements would be much less problematic if § 1983 lawsuits and Bivens actions were secondary remedies to punish individual bad apples (and included, for example disqualification from serving in law enforcement for serious willful wrongdoing), while municipal liability for compensatory relief only was available much more easily.

* Many countries vest prosecutorial power in the judiciary rather than in the executive branch, and many states have an attorney general or DA who is independently elected to create a built in special prosecutor. There is wisdom in depriving an elected executive branch politician like a President or Governor or Mayor from having absolute control over enforcement of the criminal laws.

* Colorado has the Colorado Open Records Act and the Colorado Criminal Justice Records Act to allow pre-litigation discovery of incidents that might give rise to civil liability on the part of public officials, which makes Warne v. Hall, which prevents people from suing first and getting discovery to determine if they really have a claim, by adopting the federal standards of Twombly and Iqbal for pleading civil actions more tolerable than in other contexts. It isn't clear to me that FOIA (the Freedom of Information Act) at the federal level, provides an equally effective tool to bring claims against federal public officials.

* While allowing all U.S. District Court judges to impose national injunctions can be problematic, mostly because it allows for forum shopping, it is also deeply problematic to allow the federal government to re-litigate issues that it has lost in other jurisdictions over and over again, which is just reverse forum shopping. Maybe national injunction power needs to be reserved for the U.S. District Court for the District of Columbia.

* Felons should be able to vote. But maybe they shouldn't be able to run for public office without some process establishing that they were reformed or just the passage of time of a certain number of years after they fully served their sentence.

* A statutory obligation for all law enforcement officers to be unmasked and clearly display their badges subject to narrow exceptions that would have to be authorized much like a search warrant on a case by case basis, wouldn't be a bad law.

* We need a better structure to limit the use of military force and covert operations by intelligence agencies to legally authorized act, that doesn't simply give the President absolute power.

* No President should have the power to unilaterally impose any taxes, including tariffs.

Structural Problems With The Living Constitution

As interpreted the U.S. Constitution has various problems:

* The insurrection clause was gutted by making it not self-executing.

* Presidential immunity from crimes was a horrible mistake.

* No one has standing to pursue too many violations of the law, such as the emoluments clause, the bar on increasing Congressional compensation, some kinds of religious establishment (e.g. not enforcement the ban on political action by religious groups).

* The pardon power is too easily abused.

* Limiting campaign finance by corporations in a partisan neutral way is prohibited (although Citizens United is less of a problem than it is given credit for being IMHO). 

* Term limits for Congress would be good.

* The filibusters has done more harm than good.

* Gerrymandering is an intractable problem and the first past the post system also leads to spoiler effects and a two party system instead of a multiparty system.

* Grounds for impeachment are too feeble and impeachment is too hard to accomplish for genuine crimes.

* The veto power is too strong, undermining Congress.

* The electoral college has proven to be a bad idea.

* The Senate is too distorting.

* The Second Amendment is a bad idea.

* Treaties are too often found to be not self-executing.

* Treaties are not subordinate to domestic laws.

* Given Congress control over election disputes in their own houses was a bad idea. Their roster should be out of their control.

* The unitary executive theory is incredibly harmful and should be actively overruled. The ban on legislative vetos is less of a big deal but also deeply problematic.

* The 25th Amendment on Presidential disability was a good idea, but was executed poorly.

* It should not be possible to be President as your first political position. Prior statewide office, a cabinet post, a top generalship, or service in Congress should be required first.

* The franchise should be affirmatively defined.

Not All Hope Is Lost (Yet)!

Keep fighting!

Every week (there are rare days of respite) there is news so bad that I vacillate between outrage and despair over the future of our country.

On the other hand, while we have plummeted into a less free semi-democracy, and plenty of irrevocable damage has been done, we aren't yet beyond a point of no return.

The government shutdown demonstrates that Congress can do something. And, with the "nuclear option" well-established in the U.S. Senate now, the fact that the filibuster hasn't be abrogated to end the shutdown means that there is at least some tacit dissatisfaction with the administration among some Republicans in Congress, even if they are too cowardly to translate that into a roll call vote against the President.

While SCOTUS has frequently shut down lower court checks on Trump's assault on the rule of law, the lower federal courts and litigation of blue states has slowed the process down and put serious friction in the way of his bid to become a dictator.

Attempted military occupations of L.A., D.C., Chicago, and Portland (OR), have had far less shock and awe that Trump hoped. His birthday parade flopped and his rally of generals and admirals likewise demonstrated that while the military may reluctantly obey their commander in chief, that he does not have firm control of, or the loyal and enthusiastic support of, the military.

Trump's aggressive secret police style ICE tactics have undermined public backing for his immigration policies, which were a key factor in getting him and the Republicans in Congress who only have a razor thin majority as it is in the House and in the Senate, elected.

Now that the rich have gotten their tax breaks, they don't need him nearly so badly any more, and are shifting to worrying about whether his bad economic policies will deny them any profits to evade taxes on at all.

We are thirteen months away from the midterm elections, at a time when Trump's popularity has plummeted to record lows and where Democrats are vastly over performing in special vacancy elections. GOP gerrymanders are getting a response from Blue state counter-gerrymanders. And, the cost the GOP risks when it grasps for more Republican districts is that those districts may become less safe and flip as public opinion turns against Trump (primarily among disappointed Republicans and independents who voted for Trump).

It is dim, but there is still some light at the end of the tunnel.