On the menu today: New Mexico governor Michelle Lujan Grisham declares war on her own state’s constitution and mocks her state’s police for being “squeamish,” and a new book reveals how much the U.S. government and its contractors deliberately hindered the Afghan military’s ability to protect itself as the Taliban approached Kabul in the spring and summer of 2021.
Gun Order Backfires
Let us begin by being clear: The governor of a state does not have the right to unilaterally suspend laws or portions of the state or U.S. constitutions by an emergency declaration, absent an actual indisputable emergency and justification that will hold up under judicial review. The National Conference of State Legislatures summarizes:
In times of war, disease or other extraordinary conditions, each state authorizes its governor to declare a state of emergency. Once an emergency has been declared, executive powers expand until the emergency ends. These powers include authority normally reserved for legislatures, such as the ability to suspend existing statutes or effectively create new laws — albeit temporarily and only as needed to respond to the emergency situation.
Although governors need to be able to respond to emergencies quickly, legislatures have an important role in making sure these powers are not abused and that they do not undermine the separation of powers vital to our democratic system of government.
What is at stake in these circumstances is nothing less than whether the U.S. remains a country with a government “of the people, by the people, for the people,” as Abraham Lincoln described in the Gettysburg Address.
Every state has a clearly established process for changing laws in emergencies, and the circumstances must be spectacularly dire to justify ignoring the role of the legislative branch entirely. Last month, I spoke to a member of the Ukrainian parliament who discussed meeting in Kyiv to change the country’s laws just days after the Russian invasion began, and as Russian forces were advancing upon the city. (One of the laws they wanted to change was to make it legal for one parent to take a child out of the country without written permission from the other parent, to help mothers with young children evacuate to other countries faster.)
If the Ukrainians can keep their legislature operating while the Russians are dropping bombs on the streets outside, there’s really no emergency so severe in the state of New Mexico that the governor cannot work with the state legislature as normal, as the state constitution requires.
Last Friday, New Mexico governor Michelle Lujan Grisham, a Democrat, announced a 30-day ban on the right to carry open or concealed firearms in public. She and the state health secretary, Patrick Allen, declared, “Gun violence and drug abuse currently constitute statewide public health emergencies,” and that provided sufficient justification for the governor to repeal the concealed-carry law, first passed in 2001, as well as the state’s open-carry law.
In New Mexico, about 46 percent of adults have at least one gun in their home.
The New Mexico state legislature is not under fire, missing, or incapable of performing its duties. It adjourned on March 18, and is scheduled to begin its next session January 16, 2024. The state legislature meets for a 60-day regular session in odd-numbered years, and for a 30-day regular session in even-numbered years. The governor can call a special session to deal with emergency legislation that needs attention before the next regular session; the state legislature can also declare its own “extraordinary session” and meet outside of the normal session, if three-fifths of each chamber agrees.
The state senate has 27 Democrats and 15 Republicans; the state house has 45 Democrats and 25 Republicans. New Mexico has not failed to repeal or revise the state’s concealed- and open-carry laws because of GOP obstinacy. There simply aren’t enough votes supporting the changes Lujan Grisham wants. So she has chosen to ignore her state’s constitution and is attempting to unilaterally suspend laws she opposes.
Unsurprisingly, New Mexico’s law-enforcement communities want nothing to do with this blatantly unconstitutional act. Almost immediately after the governor’s announcement, Albuquerque mayor Tim Keller, Bernalillo County sheriff John Allen, and Albuquerque police chief Harold Medina all issued statements that they would not be enforcing the governor’s order. Medina stated, “Our officers at APD will continue to focus on the enforcement of criminal laws and arresting the criminals who are driving violent crime in the city.”
Yesterday, Lujan Grisham’s effort hit another significant setback when her state’s attorney general, Raul Torrez, declared that he, too, saw the governor’s action as unconstitutional and that he would not defend it in court:
“Though I recognize my statutory obligation as New Mexico’s chief legal officer to defend state officials when they are sued in their official capacity, my duty to uphold and defend the constitutional rights of every citizen takes precedence,” Torrez wrote to fellow Democratic Governor Michelle Lujan Grisham in a letter. “Simply put, I do not believe that the Emergency Order will have any meaningful impact on public safety but, more importantly, I do not believe it passes constitutional muster.”
That’s how willy-nilly the governor chose to act; she didn’t even pick up the phone and check to see if her own state attorney general was on board with the idea. Lujan Grisham isn’t just power-mad, authoritarian, and reckless; her decisions in this recent controversy suggest she isn’t the sharpest knife in the drawer, either.
There’s a lot of anger in this country. There’s also quite a bit of paranoia, suspicion, and fear. There are quite a few Americans who believe that someday, the federal government will come to their door to seize their guns. Australia enacted a version of this policy. There are gun-control advocates who believe that due process and judicial review are inconveniences to be swatted away in the name of public safety, that the police and government officials should have the authority to declare someone a threat — without a conviction or documented violation of any laws — and take their guns and bar them from being able to purchase or own any firearms.
No less a figure than former president Donald Trump once said in the White House, “Take the firearms first and then go to court, because that’s another system. Because a lot of times by the time you go to court it takes so long to go to court, to get the due-process procedures. I like taking the guns early.”
There are quite a few Americans who believe that the government will even more overtly restrict what they can say and punish them for criticizing government officials. The U.S. government has urged social-media companies to shut down the accounts of critics and those it deems purveyors of “misinformation,” with no legal or judicial review, legal process, or accountability. The argument that Americans don’t get arrested for criticizing government officials feels a little weaker when some small-town cops in Kansas decide to raid the local newspaper because it allegedly illegally accessed the records of a state database, but was in fact investigating why the police chief left his previous post as an officer in Kansas City, Mo.
There are quite a few Americans who believe that the government will force them from their homes and round them up in camps, probably using the Federal Emergency Management Agency. (Anyone who reflexively insists the U.S. government would never do anything like that probably ought to run that argument past a Japanese American who was alive in the 1940s.)
Not everybody who distrusts the U.S. government right now is a bad person, and most of them haven’t committed any crimes. They just remember the worst examples of U.S. government misbehavior from history — and there’s no shortage of those! — and fear that an arrogant, smug, elitist, and power-hungry governing class will ignore the U.S. Constitution and use the muscle of the state to punish those who oppose them.
It doesn’t really matter whether you think all that anger and paranoia is justified or worthwhile; it’s out there, and the big question is what we’re going to do about it. The stakes are high. We’ve seen political anger and paranoia boil over into violence — from Charlottesville to James Hodgkinson’s plot to shoot up congressional Republicans on a softball field to the mailed bombs of Cesar Sayoc to the riots of summer 2020 to January 6. Sometimes it’s not all that coherent or partisan, like the guy who blew up downtown Nashville on Christmas Day because he thought lizard people ruled the world.
There’s a smoldering fire out there. The question for our lawmakers — and for everyone else, really — is, “Do you want to throw water on the fire, or do you want to throw gasoline on the fire?” Do you want to make people angrier, more suspicious, and more fearful? Or do you want to reassure them, calm them down, and steer them away from doing something stupid, drastic, and destructive?
There are a whole lot of jerks out there who are eager to monetize Americans’ fear, anger, and paranoia. If you establish your social-media brand as, “The rich and powerful are out to get you, and I’m the only one who is willing to tell you the ugly truth,” a lot of people will choose to tune in. And that’s all separate from the hostile foreign powers who want Americans divided, angry, fearful, distrustful, and always seeing the worst in one another.
If you want people to believe that the government is going to attempt to ignore the Constitution, seize their weapons, and forcibly subjugate them, you do exactly what Michelle Lujan Grisham chose to do here. You ignore the U.S. and state constitutions, you ignore your state legislature, you ignore the need to build consensus before you make a dramatic change in the law, and you accuse law-enforcement officials who object to the change, citing the Constitution, of being “squeamish.”
“I don’t need a lecture on constitutionality from Sheriff Allen: What I need is action,” the governor said Monday.
Actually, governor, you really do need to listen to that lecture on constitutionality. The New Mexico state legislature ought to declare that “extraordinary session” and meet as soon as possible — not to enact Lujan Grisham’s desired changes, but to impeach her and remove her from office for blatantly defying the state constitution. (At least two state lawmakers are contemplating this, and one Democratic state lawmaker has warned, “An unconstitutional approach undermines the important collaboration gun issues deserve, and the important role of a Governor to lead genuine reforms.”)
There are circumstances when the impeachment of an elected official is a hard call, but this is not one of those cases. Sometimes an impeachment effort warrants a slow, methodical process, and sometimes it is clearer and justifies a speedier one to mitigate the ongoing damage to the state’s system of laws.
This one deserves a drive-through lane.
ADDENDUM: In case you missed it yesterday, Franklin Foer’s new book, The Last Politician: Inside Joe Biden’s White House and the Struggle for America’s Future, offers a jaw-dropping anecdote about how U.S. military contractors ripped the avionic systems out of the Afghan military’s helicopters, “rendering the helicopters effectively useless. They were destroying the army’s air cover, its most important battlefield advantage.”
The U.S. may have needed to leave Afghanistan, but we did not need to disable the ability of our allies to defend themselves. While the U.S. enacted a policy of deliberately disabling Afghan military equipment, President Biden was telling the country and the world, “The Afghan troops have 300,000 well-equipped — as well-equipped as any army in the world — and an air force against something like 75,000 Taliban. . . . I trust the capacity of the Afghan military, who is better trained, better equipped, and more re- — more competent in terms of conducting war.”