Constitutional Lawyer and Activist Shahid Buttar Explains How to Fight For a Green New Deal

 
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Activist, organizer, and constitutional lawyer, Shahid Buttar, explains the historical obstacles of FDR’s New Deal and the challenges facing the movement for a Green New Deal, a proposal to create a jobs program to transition to 100% renewable energy by 2030.

This interview has been edited for brevity and clarity.

MFU: Despite overwhelming bipartisan support for a Green New Deal, the proposal has come under fire from pundits and establishment politicians. Some have said it would be too expensive, others have called it unrealistic. What is your response to this?

SB: It’s entirely predictable for those criticisms to emerge. They repeat what I would describe as disproven allegations. You know when the first New Deal was proposed, something like seventy-five years ago, it was met with some of the same concerns—it was an incredibly expensive program that required a paradigm shift. And it’s an ambitious idea that involves effectively restructuring our economy and it makes perfect sense to me that people who are beholden to our failed vision of crony capitalism would array themselves to oppose that proposal to meet the challenges of our future boldly. At the end of the day, I would describe the Green New Deal as a no-brainer. It’s obvious that we need it, and I want to dive into what the ‘it’ is.

There’s a couple different components of it that often prove elusive to people. One piece of it is a substantial public investment in renewable energy, in job opportunities, and particularly a federal program like the first New Deal that employs people who might be challenged for economic opportunities, whether they’re young people who are entering the workforce, or older folks who might have a hard time applying their skills to the opportunities of today’s job market. There are huge opportunities for fiscal stimulus to employ those people in promoting renewable alternatives here in California.

A particular opportunity to me that happens to align with the president’s bizarre rhetoric and self-serving corruption when he tried to deny California access to federal emergency management agency funds to deal with wildfires is that it would not be crazy to employ a generation of young and old people to go into our nation’s forests to clear the underbrush that is creating wildfires, you know basically repeating the kind of forest management techniques that native americans practiced before the genocide that our country committed against them. These are all parts of the Green New Deal that to me seem obviously needed, and it’s also obvious to me that we have the resources to fund these programs.

I spent a lot of time in 2018 talking about a particular Pentagon program—that’s the F-35 joint strike fighter, which over the life cycle of its cost will amount to something like 2 trillion dollars drained from the federal tax payer budget. Two trillion dollars will employ a whole bunch of people at a $15/hour minimum wage doing important work to improve the resiliency of our communities to climate change. It’s an obvious choice, particularly when you think about the corruption pervading military spending. The F-35 is a particularly glaring example because it’s been described by the head of the navy procurement division, this is under the Obama administration, as procurement malpractice. It’s also a particularly failed weapon system that has been unable to meet its test requirements throughout its lifecycle. It’s a particularly anachronistic program that can’t possibly meet our nation’s future national security needs because it responds to a Cold War threat that no longer exists. And it particularly reflects the corruption apparent in military contracting, because it’s driven not by our national security needs but instead by weapons contractors and their allies in congress.

Just ending that one program alone would create the funds necessary to enable the Green New Deal, and if we rewind the tape this is another place where the Trump administration reflects the accuracy of stopped clocks twice a day. It is shameful I think to the Democratic party mainstream that it took a tyrant to order the first audit of the Pentagon, in something like a century. I don’t know if the Pentagon has ever been subject to an audit before and it took Donald Trump to subject it to an audit, which showed 21 trillion dollars unaccounted for. And the idea that we can’t fund the Green New Deal when we can’t even account for trillions of dollars that we have hurled down the abyss of so-called defense spending is quite frankly preposterous and we as voters shouldn’t stand for it and we shouldn’t tolerate it from our representatives in Congress.

MFU: A guest on Fox News called the Green New Deal unconstitutional. As a constitutional lawyer, what are your thoughts on this?

SB: That’s an allegation made by conservatives who are clinging at political straws. The supposed unconstitutionality of a program like this would have to be based on the federal commerce clause, which has been the object of historic contention between conservatives who aim to, I’m quoting Grover Norquist here, strangle the federal government until it’s able to drown it in a bathtub, shrink the government, that’s the vision that conservatives have long-pursued and there’s been a long-running attack on the constitutional powers of the federal government to respond to the economic needs of our country. This was the fight during the first New Deal.

People might not be familiar with the history of president Franklin Delano Roosevelt’s court packing plan. For years he attempted to apply fiscal stimulus to lift the country out of the Great Depression. For years the Supreme Court, the conservative Supreme Court of that era, repeatedly intervened, striking down New Deal laws because they entailed economic redistribution. And the court invented a supposed constitutional restriction on economic redistribution that was repudiated many years later after FDR effectively threatened the court with what we describe as a court packing plan. This was his proposal to add new justices to the Supreme Court who would dilute the voice of the conservatives who were denying the American people the opportunity to apply fiscal stimulus to lift us out of the Depression. And that struggle—FDR’s proposal to pack the court—failed, but he won the war in terms of the Supreme Court justices who were already on the bench flipping some of their votes. And then there was the West Coast Hotel v. Parrish case in 1937. The Supreme court essentially repudiated its prior decision in Lochner v. New York, the case that had previously restricted Congress’ power under the commerce clause. It was the first in a long line of cases that prevented the New Deal from coming into effect.

The very long story short there is that any allegation of unconstitutionality relies on a rejected vision of constitutional law, a rejected vision that would constrain the federal government from pursuing any programs to support the needs of working people. If we allow the allegation of unconstitutionality to proceed, it proves too much in the sense that not only would that block the Green New Deal, it would block Social Security, it could block Medicare, not only Medical for All, but even the existing program. That vision of unconstitutionality is a radical conservative chimera.

And maybe the last thing I’d say here is we should be very concerned, because of course the Supreme Court is run by unapologetic politicized conservatives. We don’t have a fair or unbiased or impartial justice system. We have a weaponized justice system, particularly since the confirmation of the latest justice.

Justice Kavanaugh is an unrepentant sexual assailant, the object of multiple ethics complaints—all of which had to be dismissed once he was appointed to the Supreme Court, because Supreme Court justices answer to no higher authority. It is galling, I dare say, that he sits on the court, and I just want to dive into this for a minute.

The Supreme Court as it is currently constituted represents a threat to the republic, particularly because everything from a woman’s right to choose the future of her own body to the rights of racial minorities, all of our rights are at risk as long as the Supreme Court is allowed to proceed with a politicized composition. And people forget that the court has not been legitimately composed since the year 2000. In 2000, in the Bush v. Gore decision, the Supreme Court for the first time in the history of our Republic chose a president, which is to say, and I’m going to use the words of Yale Law professor Bruce Ackerman here—the court packed itself. If we were talking about FDR in the last century trying to pack the court by adding new justices, what the Supreme Court did in Bush v. Gore was contrive its own future composition. That circularity introduces what I would describe as a taint in the court’s jurisprudence, and its legitimacy. Since that point, while there have been the addition of several justices, at no point has there been a revisitation of the point at which the court went off the rails.

And so my proposal for Congress, which is well within Congress’s prerogative, is to restructure the court by eliminating lifetime appointments and legislating a requirement for 18 years staggered terms. Eighteen years is a long enough term for Supreme Court justices to have the opportunity to develop the expertise in the many bodies of law that they have to apply. It’s a long enough term that it will insulate them from political pressure. If we stagger the terms it will ensure that every president has an opportunity to appoint an equal number of justices to the court. It would be the most effective way to depoliticize the court without necessarily forcing through a court packing plan, a repoliticization of the court. If the court is politicized, trying to respond by adding justices to the Supreme Court might potentially equalize the bias but it’s not a way to remove it, and so the only way to remove the bias is to limit lifetime appointments. The notion of lifetime tenure is supposed to ensure judicial independence by keeping the justices from needing to feel fear of the recrimination of the political branches, but now in today’s era we’ve had young justices appointed to the court specifically to promote ideological agendas—in stark contrast to the court’s role as a jurisprudential, not a political institution. In this era we have to be creative and thoughtful about how to reign in these institutions.

All of that is to say that while I can say with some certainty that the constitutionality of the Green New Deal is established and I dare say unassailable in fair and independent courts, the constitutionality of everything is at risk before this court. And it’s worth remembering because so many of the battles we will face in Congress will ultimately face litigation challenges, and even if we are able to attain the congressional consensus on issues like the Green New Deal, like Medicare for All, like an expansion of civil rights to restore the legitimacy of our criminal injustice system, all of those kinds of reforms will be at risk of judicial intervention.

My earliest cases of my career included the first marriage equality case in the state of New York in the contemporary era, and a successful defense before the D.C. Circuit Court of Appeals of the last time congress agreed to try to take money out of politics. This is a huge issue that concerns the entire electorate and in the year 2003 I believe it was, then senators John McCain from Arizona, a republican, and democrat Russ Feingold, from Wisconsin, teamed up to author, introduce, and secure the passage of the Bipartisan Campaign Reform Act, it’s often described as McCain Feingold. One of my very first cases as a lawyer was representing the House cosponsors of that bill Shays and Meehan in defending its evisceration by the Federal Election Commission, which through the regulatory process was basically trying to water down the bill’s requirements to take corporate soft money out of elections, and instead creating lots of circumvention opportunities. We won that case before the D.C. Circuit four years before the Supreme Court and the Citizens United decision basically destroyed everything we had worked on. And that saga is the cautionary tale, which is to say we have plenty of political fights on our hands but because of judicial supremacy, we have to also keep our eye on the Supreme Court. It’s absolutely crucial to reign in the Supreme Court before it independently wreaks havoc by denying the political branches and we the people the opportunity to legislate our own futures.