Capricious Processes

No Sift next week. New articles will appear on January 31.

As these decisions show, the Court’s future hinges less on the text of federal law and the Constitution than on the capricious process by which conservatives define what it means to be one of them.

– Adam Serwer
The Culture War Has Warped the Supreme Court’s Judgment

This week’s featured posts are “Merrick Garland Starts Getting Serious” and “The Court and the Vaccine Mandates“.

This week everybody was talking about voting rights

Ever since Georgia passed its new voter-suppression law last March, Democrats at the federal level have been talking about protecting voting rights. But with a zero-vote margin in the Senate, and voting rights not fitting into any of the existing holes in the filibuster, talking is about all they’ve managed to do.

The conversation started with the For the People Act, which Senator Manchin said he couldn’t support. But then he seemed to do the responsible thing: He spelled out what he could support, and what he claimed enough Republicans would support to overcome a filibuster. A compromise Freedom to Vote Act was worked out, which Stacey Abrams — the avatar of voting rights — endorsed.

Unfortunately, Manchin was wrong; Republicans unanimously reject his bill too, and none of them came forward with a plausible counterproposal. They also successfully filibustered the John Lewis Voting Rights Act, with Lisa Murkowski the only Republican voting yes. So the question boiled down to the filibuster: If the filibuster lives, federal protection of voting rights dies.

Manchin and fellow right-leaning Democrat (I’m refusing to use the much-abused media label “moderate“) Kyrsten Sinema have been saying all year that they didn’t want to change the filibuster. But as with Biden’s Build Back Better bill, many Democrats continued to insist their minds could be changed.

They couldn’t. Sinema in particular has laid out her thinking on the topic, in an argument that doesn’t make a whole lot of sense: Democrats will need the filibuster when Republicans get back into power. Jonathan Chait responds:

But how many times did the filibuster stop [Trump] from carrying out an abuse of power? Not one. You can go through a long list of Trump’s norm-shattering behavior without finding a successful filibuster. Sometimes he appointed unqualified or pliant cronies to executive-branch positions, but those votes already have a 50-vote threshold. Other times, he ignored norms or laws, but he didn’t need Senate approval to do that. In theory, Trump needed Senate approval to build a border wall in the South, but in practice, he just did it anyway through executive action.

The Senate plans to debate both the Freedom to Vote and the John Lewis bills tomorrow, but both seem doomed.

and the Capitol Insurrection

New developments in the case this week are discussed in one of the featured posts: 11 OathKeepers were indicted for seditious conspiracy, and the multi-state plot to produce fraudulent Electoral College votes started coming to light.

Asha Rangappa explains the current vision of how Trump’s coup was supposed to work.

Just so we don’t lose our sense of humor completely, Randy Rainbow already had a song ready a year ago.

and the Supreme Court

The other featured post covers the Court’s contradictory opinions on vaccine mandates. It’s hard to find any coherent legal reasoning here, but John Roberts’ political patterns explain everything.

In other legal news: The Ohio Supreme Court struck down a pro-GOP redistricting map. The Court believes Ohio voters actually meant what they said when they passed an anti-gerrymandering ballot proposition in 2018.

We reject the notion that Ohio voters rallied so strongly behind an anti-gerrymandering amendment to the Ohio Constitution yet believed at the time that the amendment was toothless

And Ted Cruz’ effort to take down an anti-corruption law is going to the Supreme Court.

and the pandemic

The Omicron wave seems to be peaking. Or rather, the peak has passed in the Northeast, while the rest of the country is still on the up-slope. Currently, the US is averaging 802K new cases per day, up 98% in two weeks, but down fractionally from 807K on Friday. Hospitalizations are at 156K, up 61%, and deaths are at 1964, up 57%. The West has now passed the Northeast as the region with the most per capita new cases.

Bob Wachter provides a useful tweetstorm explaining what will and won’t change over the next month, and why he believes we’ll face less Covid risk then.

and you also might be interested in …

MLK Day should be our annual reminder not to turn Martin Luther King into a moderate. Conservatives would reduce him to that one “content of their character” quote and claim he supported the superficial kind of color-blindness where people pretend not to notice what race anybody is. There was much more to King than that, and most of it was pretty radical in its day. A lot of it still is.

I haven’t said much about the Russia/NATO/Ukraine thing because I don’t understand it. It’s hard for me to tell what is a bluff, what is overreaction, and what is real.

A Brooklyn junior is one of the few American high school students who has taken an actual class in Critical Race Theory.

When we discussed CRT in our short workshop, we were taught the basic premise of critical race theory — that the underlying cause of racism within our country is institutional oppression built into American government and law. This structural racism shows up in systems such as the electoral college, which allowed slaveholding states disproportionate representation, and the prison-industrial complex, which upholds forced labor to this day.

But he wasn’t taught to hate White people, to hate the United States, or any of the other things CRT opponents denounce.

Talking Points Memo reader JS is a lawyer-turned-teacher who explains why the pandemic experience is going to hurt teacher morale and retention for years to come.

Maybe we should just say, well, if waitstaff at restaurants and everyone else can be forced to show up, then so can we, and I think there’s something to that. But if you want to destroy the morale of an entire class of people, point out that [their] biggest anxiety is well founded: in other words, you are basically like a fast food employee despite what we say about your education and training and your job requirements. 

A lot of the trends in education of late are to deprofessionalize the job and make teaching into commodity work. The low pay tickles that anxiety. We have as many units as an MBA or an MFT just to get credentialed. We have the student loan debt to match, but it can seem like it’s all a lie. We’re really just babysitters.

Novak Djokovic left Australia Sunday, concluding the long back-and-forth about whether the unvaccinated tennis star could play in the Australian Open, which starts today.

I’ve never cared about the British royal family, to the extent that I had to look up which prince Andrew is. (He’s the Queen’s second son.) But the Jeffrey Epstein scandal is taking him down too. He hasn’t been convicted of anything, but he has lost his royal titles and faces a lawsuit from a woman who claims Epstein forced her to have sex with Andrew when she was 17.

and let’s close with something musical

Have you ever listened to a new popular song and felt like you’d heard it before? Sir Mashalot went further than that: He proved it by remixing six popular country songs into one seamless whole.

Merrick Garland Starts Getting Serious

The misdemeanor part of his January 6 investigation seems to be over.
But will he get all the way to the top?

In a speech on January 5, Merrick Garland described his strategy for investigating the insurrection. Lawfare summarized it:

Seemingly in response to criticism that mostly smaller fry defendants have been charged to date while those behind the planning of the insurrection have not, Garland described the department’s approach as consistent with “well-worn prosecutorial practices.” Large investigations, he explained, start with the more junior people and the more easily proved cases. The public at first sees short sentences (or no jail time at all) handed out, and an absence of the more notorious figures being charged. Garland strongly implied that more significant actions are coming down the pike. Junior people flip on more senior people. And perpetrators who were not directly involved in violence but played planning or other behind-the-scenes roles must be reached with more time-consuming and complex investigations.

This week, we began to see what he was talking about.

On Thursday, federal prosecutors charged Oath Keepers leader Stewart Rhodes and 10 others with seditious conspiracy for their role in the January 6 attacks on the US Capitol. That charge — the most serious yet to come out of the investigation — is one of several in the indictment unsealed Thursday, which alleges Rhodes and his co-defendants brought small arms to the Washington, DC, area; engaged in combat training to prepare for the attacks; and made plans to stage quick-reaction forces to support insurrectionists.

… The new indictments are a significant step up from previous charges in the case, which range in seriousness from disorderly conduct to obstructing an official proceeding before Congress, and have so far resulted in sentences up to 41 months in prison. In comparison, seditious conspiracy carries a potential sentence of 20 years in prison.

The new indictment lays out a plan that goes far beyond the mob.

While certain Oath Keepers members and affiliates inside of Washington, D.C., breached the Capitol grounds and building, others remained stationed just outside the city in [quick-reaction force] teams. The QRF teams were prepared to rapidly transport arms into Washington, D.C., in support of operations aimed at using force to stop the lawful transfer of presidential power.

So the plan was to overwhelm the Capitol with numbers, then bring in the guns to hold it.

The obvious question is whether the people plotting Trump’s January 6 strategy (the so-called “Green Bay sweep“) knew about this or were complicit in its planning. GB Sweep plotter Peter Navarro claims not, but his plan seems to have had a big hole in it, which an armed militia occupying the Capitol might have filled: A Capitol occupation might have pushed the election certification past Inauguration Day, opening up a huge can of worms could justify authoritarian action.

And Roger Stone is connected to both groups. Maybe that’s why he pleaded the Fifth rather than tell the January 6 committee what he knows.

All of which leads to this week’s second development: Electoral College fraud.

When I first ran across the Eastman memo, the game plan for Trump’s attempt to steal the election he lost by seven million votes, this part made me scratch my head:

When [Vice President Pence] gets to Arizona [in the state-by-state electoral vote count], he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. … At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.

Multiple slates of electors? Where did that come from? There have been rare cases in American history where rival slates of electors were named by rival sources of certifying authority. In 1876, for example, Florida’s Republican-dominated Board of Canvassers declared Rutherford B. Hayes the winner and certified his electors. And then the newly elected Democratic governor appointed a new Board of Canvassers that certified Tilden’s electors. So both sets submitted their credentials to Congress.

But the Electoral Count Act of 1887 was supposed to straighten all that out. Each state prepares a certificate of ascertainment signed by the governor (an example is to the right), listing the state’s electors. I could imagine a state legislature deciding that the ECA was unconstitutional and submitting a rival slate, or a state’s supreme court declaring that the governor’s signature was illegal in some way, but I hadn’t heard of anything like that happening. So: what “multiple slates of electors”?

Now we know. In seven states that Trump lost, his defeated candidates for the Electoral College signed fraudulent documents declaring themselves to be “duly elected and qualified Electors”. The fake certificates are all similar, suggesting that somebody — Mark Meadows? — distributed a template. And they didn’t do this just for personal satisfaction. They sent the fake certificates to the National Archives and to Congress as if they were real.

Given how much trouble ordinary Americans would be in if we, say, printed our own drivers licenses, I have to wonder if this forgery is illegal. George Conway, Kellyanne’s lawyer husband, tweeted:

Anyone who prepared or submitted, or aided, abetted or conspired in the preparation or submission of, false electoral-vote certificates, would presumably be guilty of a host of federal and state criminal offenses. False electoral certificates ought to be easy pickings for prosecutors.

Michigan Attorney General Dana Nessel agrees:

Under state law, I think clearly you have forgery of a public record, which is a 14-year offense, and election law forgery, which is a five-year offense.

Since this is a multi-state election fraud case, she thinks the federal Department of Justice should take the lead, and has referred the matter to them. (To their credit, Fox News reported this story. It’s enlightening to read the comments as Fox viewers try hard not to understand what Fox has just explained to them. I’m reminded of what Oliver Wendell Holmes said about a closed mind: It’s “like the pupil of the eye. The more light you shine on it, the more it will contract.”)

So that ball is in Merrick Garland’s court too. He hasn’t said what he intends to do with it.

The fake electors themselves clearly know they’re in trouble. (They should ask Michael Cohen what happens to people who go along with Trump’s schemes.) Arizona State Representative Jake Hoffman was asked by a local reporter what authority he was acting under, and (after Hoffman dodged that question) how he knew to show up for the fake ceremony where Trump’s fraudulent electors cast their ballots. Hoffman said the reporter should ask the state party chair. The follow-up questions “Do you not know how you arrived at the place? Do you really not know how you got a call?” led Hoffman to walk away.

So this where we are: We finally know that Garland intends to move beyond the pawns in Trump’s mob. Now he’s at the knight-and-bishop level. But will he get all the way to the King? Does he plan to? So far there’s no sign of that.

The Court and the Vaccine Mandates

The law gives way to power and politics.

As expected, the Court nuked the Biden administration’s workplace vaccine-or-test mandate, while upholding a mandate for health care workers. The heart of the 6-3 majority’s negative opinion was this argument:

The question, then, is whether the [Occupational Safety and Health] Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. …

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

Got that? The majority doesn’t claim that Covid isn’t a hazard at work, but that you might catch Covid lots of other places too. So if you could pick up black lung disease at the supermarket, OSHA wouldn’t be able to regulate that either. The Atlantic’s Adam Serwer labels this logic “laughable”.

OSHA regulates many, many hazards that are also present outside the workplace. The fact that you can die in a fire in your apartment is not an argument against regulating fire hazards in factories or offices.

Fires, falling down stairs, handling sharp objects, etc. are all “hazards of daily life”. But while Americans can mitigate the risks we face at home, we’re mostly at the mercy of our employers at work. That’s why we need OSHA. The Breyer/Kagan/Sotomayor dissent explains:

OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits — even though the dangers prevented by those rules arise not only in workplaces but in many physical facilities (e.g., stadiums, schools, hotels, even homes). Similarly, OSHA has regulated to reduce risks from excessive noise and unsafe drinking water—again, risks hardly confined to the workplace.

People like me. Let me bring this down to a personal level: My wife and I, being over 65 and having a few other complicating factors, have been very careful about minimizing our Covid risk. We haven’t caught Covid “at home” because we don’t let a lot of people into our home. We haven’t caught it “during sporting events” because we have been staying away from sporting events. And we haven’t caught it at work because we’re retired.

Until the current Omicron surge, our friends and family had almost entirely escaped infection too. How? Partly by being sensible people who take science seriously, but also because those who weren’t retired were almost all in white-collar jobs that allowed them to work from home. (I’d love to see some statistics breaking down Covid risk by education or job category.) The ones I worry most about are the few who have in-person jobs that require interacting with the public.

In short, the workplace isn’t the only place Americans can catch Covid, but it’s the primary source of unavoidable risk.

Now, if you are somebody who thinks Covid is a scam, or if you’re just “done” with trying to avoid it, the Court’s ruling makes perfect sense: You’re interacting with unmasked untested unvaccinated people all the time, so what’s the problem if you meet a few more at work? But for those of us still trying not to get sick — and especially for service-industry people who have been considering when it will be safe to re-enter the job market — this ruling is a major blow. The Court has said that our government is powerless to help us.

What the laws say. The majority’s logic is tenuous on its face, but the best argument against the Court’s opinion is to read the bleeping law, which the dissent reproduces:

OSHA ’s rule perfectly fits the language of the applicable statutory provision. Once again, that provision commands — not just enables, but commands — OSHA to issue an emergency temporary standard whenever it determines “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”

Strangely, though, Chief Justice Roberts and Justice Kavanaugh flipped to the other side of the argument in a similar case decided the same day: In a 5-4 decision, the Court let stand a different Biden administration vaccine mandate — affecting 10 million people rather than 84 million — on health care workers.

Reading that opinion (which is unsigned, but probably written by either Roberts or Kavanaugh), it’s hard to see the difference between this and the more general mandate. The regulating agency has changed (HHS rather than OSHA), and the agency is implementing a different set of laws, but the main difference is that in this case Roberts and Kavanaugh decided to take those laws seriously.

Both Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.”

One such function—perhaps the most basic, given the Department’s core mission—is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety. Such providers include hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities, and more. To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.”

It wouldn’t be hard to use these paragraphs as a template and fill in “OSHA” and “workers” in place of “HHS” and “Medicare and Medicaid patients”. (If anything, the law is clearer in the OSHA case.) But Roberts and Kavanaugh couldn’t support such a revision. For some reason, the “core mission” of HHS matters in a way that the core mission of OSHA doesn’t.

Vox’s Ian Millhiser observes that the two opinions are “at war with each other”, and the “The Court is barely even pretending to be engaged in legal reasoning.”

Politics. Probably the Chief Justice’s thinking has more to do with protecting the Court’s image than upholding the law.

Roberts hates to make sweeping decisions whose judicial activism would be obvious to the public. Instead, he prefers to chip away at the federal power or individual rights that he wants to destroy, in decisions that are supposed to seem moderate individually, even as they stack up to create radical change. So he invented with a novel way to uphold ObamaCare while simultaneously undercutting precedents about the Commerce Clause and allowing states to opt out of Medicaid expansion. He left the Voting Rights Act in place while tossing its main enforcement mechanism. He’s been uprooting campaign finance laws bit by bit rather than declaring outright that Money is sovereign (which is clearly what he believes).

And so in these two cases, Roberts cuts the vaccine-mandate baby into a small piece and a large piece. He does what he wants with the larger piece, while letting the law govern the smaller piece to show how moderate he is.

Expect something similar in June when the Court rules on abortion: The other five conservative justices will want to reverse Roe v Wade outright. But Roberts will want to put loopholes in Roe to allow most (but probably not all) of the Roe-violating state laws to stand, while claiming that he technically “upheld” Roe rather than reversed it.

The question then will be whether he can persuade Kavanaugh, as he did this time.

Biden’s next steps. If the Court’s complaint about a broad mandate is that it’s not occupationally specific or tied to specific risks, OSHA could respond by breaking its mandate into occupation-specific chunks or detailing a more complex set of standards that would apply to all businesses, not just those with more than 100 employees. Apparently, it already drafted such a rule, but hasn’t issued it.

OSHA’s path forward to protecting workers from Covid-19 is clear. First, the agency should take the previous OSHA standard out of the desk drawer, dust it off, update the data, make any tweaks to ensure it fits the court’s new suggestion that it be risk-based and send it over to the White House. The standard should cover all workers in higher risk jobs, not only those employed by large employers.

That might or might not work, depending on whether the Court decides to play Calvinball and make up new rules as it goes.

The radicals. One related issue I speculated about last week was whether the Court would base its vaccine-mandate rulings on a “nondelegation” argument that would hamstring not just OSHA, but federal regulating agencies generally. The six-justice majority in the OSHA case (the usual conservative bloc) hints at such sentiments, but never actually invokes them.

But Justice Gorsuch’s concurrence with that ruling, joined by Thomas and Alito, does. The OSH Act can’t authorize the vaccine requirement, Gorsuch writes, because it is a general delegation of power from Congress, not a specific response by Congress to the pandemic. The power-granting subsection the dissent quoted can’t be applied because it

was not adopted in response to the pandemic, but some 50 years ago at the time of OSHA’s creation

It’s not hard to see where this line of thinking goes: Antitrust law can’t apply to markets that were inconceivable when the Sherman and Clayton Acts were passed more the 100 years ago. The Clean Air Act is more than 50 years old; clearly the EPA can’t invoke it to ban pollutants nobody knew about then. How can the SEC regulate complex financial derivatives that the laws don’t specifically mention, and that change faster than new laws can address? (Of course, this logic will never be applied to the Second Amendment, whose authors could not possibly have foreseen AR-15s.)

In this current age of obstruction and filibuster, the ultimate result of nondelegation would be the end of federal regulations across the board. Not because anti-regulation politicians took their case to the voters, won elections, and repealed OSH, the Clean Air Act, and the rest of our regulating laws, but because unelected judges (many chosen by presidents who lost the popular vote) made the entire system of regulation unworkable, independent of whatever the American people might have wanted.

A majority of the Court isn’t there yet. But three justices are.

The Monday Morning Teaser

I should have waited a week to sum up what we know about the Trump coup plot. Last week was the one-year anniversary of his mob invading the Capitol, but two significant new chunks of the story came out this week: An indictment describing the Oath Keepers’ plans to hold the Capitol after the mob seized control, and the fraudulent documents by which Trump’s defeated electors attempted to certify themselves to Congress.

Michigan’s attorney general has referred the Electoral-College-fraud case to the Justice Department, and we don’t know what they’ll do with it. But the Oath Keeper plan came out in the first DoJ indictment that puts January 6 in its political context: The charge is seditious conspiracy, not trespassing, assaulting an officer, or some other offense that could have been committed by an impulsive mob.

I’ll describe all that in “Merrick Garland Starts Getting Serious”, which I’m hoping to post by 11 EST.

Before that, though, I’ll cover the Supreme Court’s pair of vaccine-mandate decisions, which are no less bizarre because they were expected. Roberts and Kavanaugh switched sides between the two cases, and so were in the majority both times as Biden’s OSHA mandate was struck down, but his HHS mandate upheld. The issues were virtually the same in the two cases, and only minor editing could have turned the majority opinion in the HHS case into a dissent in the OSHA case.

That will be the subject of “The Court and the Vaccine Mandates”, which should be out around 9.

The weekly summary still has the Senate’s failure to protect voting rights to cover, as well as the apparent top of the Omicron surge, Matt Gaetz’ legal woes, Novak Djokovic, Prince Andrew, and a few other things, before closing with a mash-up showing that six country-and-western hits are really the same song. That should appear between noon and 1.

Lies and Violence

Violence can only be concealed by a lie, and the lie can only be maintained by violence.

– Aleksandr Solzhenitsyn

This week’s featured post is my review of what we now know about January 6, “One Year Later“.

This week everybody was talking about the January 6 insurrection

The featured post is my look back at January 6, but everyone else was doing it too. Here’s the Late Show’s musical tribute.

President Biden also spoke out more forcefully than usual.

For the first time in our history, a president had not just lost an election, he tried to prevent the peaceful transfer of power as a violent mob breached the Capitol. But they failed. They failed. And on this day of remembrance, we must make sure that such attack never, never happens again.

… We must be absolutely clear about what is true and what is a lie. And here’s the truth: the former president of the United States of America has created and spread a web of lies about the 2020 election. He’s done so because he values power over principle. Because he sees his own interest as more important than his country’s interest and America’s interest. And because his bruised ego matters more to him than our democracy or our constitution.

But my favorite line was “You can’t love your country only when you win.”

Meanwhile, the Maricopa County Elections Department put out a report that systematically went through all the conspiracy theories about the 2020 election in Arizona’s largest county, concluding

The November 2020 general election was administered with with integrity and the results were accurate and reliable. … The Elections Department followed all state and federal laws.

The report responds to the questions raised by the pro-Trump-biased Cyber Ninja election audit, typically concluding that the Ninjas were confused by their own ignorance of election law and the county’s voting systems, and that they then interpreted their confusion as evidence of nefarious activity.

We determined that nearly every finding included faulty analysis, inaccurate claims, misleading conclusions and a lack of understanding of federal and state election laws.

The Elections Department operates under the supervision of the Maricopa County Board of Supervisors, which has a Republican majority.

In other Arizona election news, the Cyber Ninjas are insolvent and are shutting down. I’ve gotta wonder what happened to the millions of dollars MAGA fans contributed to them.

and the pandemic

The vertical ascent in the new-cases graph continued this week. New cases are averaging 678K per day, more than tripling in the last two weeks. Hospitalizations have also turned upwards, but not as steeply: up 82% in two weeks, to roughly the same level as last January’s peak. Deaths have turned upward as well, but are nowhere near previous peaks: The seven-day average is 1674 now, compared to 1160 two weeks ago, but 2555 on September 22 and 3344 last January 16.

Those numbers remain hard to interpret: Many of the new cases will undoubtedly progress to hospitalizations or deaths in the coming weeks. But it also increasingly looks like the Omicron variant is somewhat milder than Delta. (Though possibly worse here than in Europe.) Unfortunately, the case-numbers are so huge that even smaller percentages turning serious will still produce a lot of serious cases. And 1674 deaths each day from a single disease is a toll that would have shocked us two years ago.

So it’s hard to answer the questions we all really want to ask: How risky is it to go to the grocery or eat in a restaurant or have people over for dinner? You’re more likely than ever to catch Covid, but maybe you’ll throw it off, especially if you’ve had three shots. Personally, I’m erring on the side of caution.

The really difficult question right now is when/whether to open the schools. I think there’s a broad consensus that distance learning didn’t work very well for a lot of kids, and that we should have had more in-person school last year. But now? With 600K+ new cases per day?

I can hear the debate inside my own head: “Wouldn’t it make sense to stay closed for a week or two until the surge passes?” “But everybody was saying ‘two weeks’ when we first closed the schools in March, 2020. How do we know that two weeks won’t turn into six months?”

NPR provides guidance on when and how to test.

On January 1, at least 800K unused Covid tests expired in a Florida warehouse. A state official explained: “We tried to give them out prior to that, but there wasn’t a demand for it.”

and the Supreme Court

which heard arguments about President Biden’s vaccine mandates, one applying to health care workers (including those at nursing homes), and the other to businesses with more than 100 employees.

You might think this should be just another note under the pandemic headline, but that’s not really what this case is about. The Court’s conservative justices have been looking for a chance to make a sweeping “nondelegation” ruling that cripples federal regulating agencies in general. Vaccine mandates are just an opportunity for six unelected judges — half appointed by a president who lost the popular vote — to remake American government.

In other words, the vaccine cases reach a Supreme Court that appears to be on the verge of reining in the ability of federal agencies to regulate any and all private conduct — a trend that has nothing at all to do with the Covid pandemic or the Biden administration’s responses to it.

In both situations, the law passed by Congress is clear:

Congress enacted the Occupational Safety and Health Act (OSH Act), which gives a similarly named agency — the Occupational Safety and Health Administration (OSHA) — sweeping authority to protect workers from health hazards. Among other things, Congress gave OSHA the power to issue binding rules that provide “medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience.”

Ordinarily, OSHA must complete a lumbering process that requires years of study and consulting with employers before it can hand down a new rule, but a provision of the OSH Act permits OSHA to issue an “emergency temporary standard” if the agency determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and that such a standard is “necessary to protect employees from such danger.”

If anything qualifies as an emergency, you would think that a plague killing over a thousand people a day would, especially given that several of the early outbreaks were in workplaces. So this is exactly the kind of situation Congress had in mind when it passed OSH in 1970 (and sent it to be signed by that flaming socialist Richard Nixon).

But not so fast. The OSH Act, like the founding legislation of most of the federal regulatory agencies, violates a principle that conservative jurists invented precisely for the purpose of wrecking federal regulatory agencies: nondelegation. According to the nondelegation doctrine, Congress violates the Constitution if it delegates too much of its power to agencies of the executive branch. So it doesn’t matter what OSH says, because it’s unconstitutional. Congress should have to pass a new law every time the country needs a new regulation — or at least a regulation that the Court’s conservative majority doesn’t like.

Have you seen what we have to go through to pass a law these days? Imagine needing to overcome a filibuster every time there’s a new carcinogenic food additive.

Ominously, Chief Justice Roberts drew attention to OSH being more than 50 years old. Recall that his main rationale for gutting the Voting Rights Act in 2013 was that “things have changed”, a legal principle I am unable to find in the Constitution. No wonder Vox’s Ian Millhiser believes

NFIB is likely to be a turning point in the right-wing Roberts Court’s relationship with the elected branches — and it could permanently disable the federal government’s ability to address crises like the Covid-19 pandemic in the future.

and electric vehicles

The day-long traffic jam on I-95 in Virginia drew my attention because I had driven that very stretch of road just a week before. But I was still surprised by where WaPo columnist Charles Lane took the story: into scare-mongering about electric vehicles.

If everyone had been driving electric vehicles, this mess could well have been worse. … It is a scientific fact that batteries of all kinds lose capacity more rapidly in cold weather, and that includes the sophisticated lithium-ion ones used by Teslas and other EVs. … Absent some breakthrough in mobile charging technology, out-of-juice EVs in out-of-the-way places will need a tow. If Monday’s nightmare had been an all-electric affair, they might have littered the highway for miles.

A few quick observations:

  • Dissing EVs is a hobby horse for Lane. He’s also done it here and here, where he described EV-skepticism as his 10-year “fixation”.
  • An electric-vehicle driver running the heater and wondering when his battery will die is in basically the same situation as a gas-powered-vehicle driver watching his fuel gauge go down.
  • Mobile charging doesn’t require a “breakthrough”. Systems “designed to be carried by a standard roadside-service truck” already exist, it’s just a matter of deploying them — which service stations should be eager to do as the number of EVs on the road increases. In the same way that a gas-powered car can be rescued with a single can of gas, and doesn’t require a complete fill-up, a stranded EV would just need enough juice to get to the next charging station rather than a time-consuming full charge. So in an I-95-type situation, one truck should be able to get many EVs moving again.
  • In the meantime, you can put your Tesla in neutral and push it into the breakdown lane, right next to all the cars that have run out of gas.
  • Lane waves off the popularity of EVs in frigid Norway, but his reasons for doing so are sketchy. For example, the link supposedly supporting his claim that Norwegian EVs are almost all second cars goes to a 2014 survey. Could anything possibly have changed since then?
  • As I know from driving my hybrid Accord, cold weather does have an effect on batteries, but it’s nothing to panic about. The cold also lowers the mileage of my gas-only second car.

I’m reminded of last February, when Texas Governor Greg Abbott blamed the collapse of his state’s electrical grid on green energy’s supposed inability to cope with cold weather, rather than his own free-market dogmatism. But somehow Wisconsin and Germany hadn’t noticed the same limitations.

The lesson I draw: Change is scary, so light-on-facts horror stories about the New often sound more convincing than they should. Remember when same-sex marriage was “presaging the fall of Western Civilization itself“?

Fascinating look at how Tesla was able to double its car production in 2021, while larger automakers often had to shut down plants for lack of key components:

When Tesla couldn’t get the chips it had counted on, it took the ones that were available and rewrote the software that operated them to suit its needs. Larger auto companies couldn’t do that because they relied on outside suppliers for much of their software and computing expertise.

and you also might be interested in …

The Webb Space Telescope has successfully deployed its mirror, which had been folded up to fit inside the launch vehicle. The unfolding in space required 178 separate release mechanisms to work, and they did.

The three men who lynched Ahmaud Arbery while he was out jogging were sentenced to life in prison. Only one of the three will be eligible for parole.

Notable deaths seem to come in clusters. This week: Sidney Poitier. There was a time in my childhood when Poitier was the only bankable Black actor. And of course, he only played characters that were specifically written as Black. The idea of a general-purpose Black movie star like Denzel Washington or Morgan Freeman, who might compete for any role not specifically written as some other race, was far in the future.

[W]ithout him, many filmgoers of previous generations might never have imagined an educated, Black authority figure.

Follow-up question: Who’s the female version of Poitier, or of Washington and Freeman?

What if you didn’t have to fund Fox News through your cable subscription? The goal of this campaign is to not to get cable systems to drop Fox, but to offer a Tucker-Carlson-free cable package that people can choose if they want.

Personally, I’d probably get the with-Fox package, because I think I need to keep an eye on the Right in order to do this blog properly. (Just this week, I wanted to check whether Sean Hannity was leading his show with the Sean-Hannity-tweet story that MSNBC was focusing on. He wasn’t. I didn’t watch the whole show, but Uproxx claims he never got around to mentioning it.) But I sympathize with the desire to know that your subscription money is not being used to promote White supremacy and knowingly spread disinformation.

Novak Djokovic appears to have won his battle with the Australian government. Today a judge ruled that he can enter the country without vaccination and play in the Australian Open.

As the son of a small farmer — I mean, he was 6’1″, but the farm was just 160 acres — I have mixed feelings about John Deere’s prototype “fully autonomous tractor“. Driving a tractor up and down the rows is repetitive and boring — exactly the kind of thing that an AI should be able to handle — but it’s also kind of peaceful and meditative. The idea that in a decade or two no one will do that job brings out the Luddite in me. Or maybe the John Henry.

Perversely, I think capitalism is about to achieve the Soviet vision of massive farms under unified management. It will happen not via worker collectives, but by eliminating the workers altogether.

and let’s close with a photo finish

I couldn’t pick which closing I liked better this week, so I’ll give you two of them. First, it must be great to be a panda cub rolling in snow for the first time.

But I can’t leave out an actual photo finish: the second annual Christmas Covid horse race.

One Year Later

News is supposed to be “the first rough draft of History“, but in practice News and History interface badly. Events of historical significance may happen with a bang, but they often come into focus slowly, as more and more information gets revealed and synthesized into a larger picture. But News, as its name suggests, emphasizes each new detail as it comes out, typically at the expense of the larger picture.

Today, for example, we might find out the color of the car that ran us down, and that it was a 2018 model (and not the 2017, as some at first thought). Is that important in the larger scheme of things? Not really. But it’s new.

For the reader/viewer, the News is like watching the edits to a document flash across your screen without having the document itself open. Now more than ever, a journalist worries about boring those in the audience who already know everything except the new detail. And the unfortunate result is that the public often loses sight of History’s current draft: At this moment, what do we think really happened?

That’s what anniversaries are for. On the one hand, it’s entirely meaningless that Thursday was January 6 again. The Capitol insurrection was part of the four-year presidential cycle, so nothing similar was happening or threatening to happen on Thursday. But on the other hand, the calendar was inviting us to step out of the 24/7 news cycle review the larger narrative as we now know it.

Here’s how I tell that story: It begins with Trump.

Plan B. In 2020, Donald Trump wanted the voters to re-elect him as president. But early on, he hatched a Plan B to stay in power in spite of the voters: If he lost, he would claim the election was rigged against him, and use all the powers of the presidency and of his personality cult to overturn the American people’s decision.

He began setting up Plan B well before the election, telling his supporters that the vote count would be full of fraud — which, of course, would all work against him. This was not a new idea for Trump, who never acknowledges his defeats. You may remember that a few weeks before the 2016 election he set up a similar claim:

Of course there is large scale voter fraud happening on and before election day. Why do Republican leaders deny what is going on? So naïve.

In 2016, even having the Electoral College appoint him president wasn’t good enough to satisfy his ego. He claimed fraud to explain why he had lost the popular vote by 2.9 million. [1]

In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.

What you probably don’t remember, though, is that he also claimed fraud when Ted Cruz beat him in the 2016 Iowa caucuses.

Ted Cruz didn’t win Iowa, he stole it.

That’s Trump: He can never lose, he can only be cheated out of victory.

But what is mere immaturity in a six-year-old (“I didn’t lose. You cheated.”) and a character flaw in a private citizen becomes a threat to the Republic when it’s backed by the kind of power Trump wielded in 2020. So his crushing seven-million vote defeat at the polls led to a massive disinformation campaign, which he used to justify pushing on every weak spot in the electoral system in an attempt to reverse the clear decision of the voters.

Disinformation. His fraud claims were endless, and from the beginning they were all bullshit. [2] Due to the the unprecedented number of early and mail-in votes occasioned by the Covid pandemic, the ballots took longer than usual to count. But there was never any legitimate reason to doubt the result when it finally came in: Biden won, Trump lost.

It’s time-consuming to go through the debunking of all of the bullshit claims, particularly if you want to believe Trump really won. [3] But at this point you don’t really have to get into the details, because the claims don’t even have the shape of truth: Authentic investigations get narrower as they hone in on what really happened, while bullshitters constantly jump from one dubious claim to the next: What about this? What about that? When Trump and his supporters claim fraud today, they spew the same litany of bogus claims they made from the beginning: overseas servers, hacked voting machines, mail-in ballot fraud, dead people voting, mysterious suitcases of ballots, and so on. All bullshit, all debunked many times.

What we never hear from Trump and his allies is a single coherent theory of who did what when, backed up by credible responses to the criticisms of that theory. After having more than a year to assemble such a theory and millions of dollars to fund investigations, that deficiency should make even the most adamant Trump partisans stop and think.

I don’t think Trump himself actually believes any of his fraud claims. [4] We now know that from the beginning, his own people were telling him they were false. Trump had to go to considerable effort to find advisors who would maintain the fantasy that he had really won. [5] Unfailingly loyal Trump supporters like Jared Kushner and Mike Pence may not have openly disputed the fraud claims, but they were noticeably absent from the Stop the Steal campaign.

The point of the claims wasn’t to establish truth, but to justify action.

Overturning the election. After it became clear that he had lost the election, Trump’s Plan B had two prongs:

  • Push on every vulnerable point in the system that leads from an election in November to an inauguration in January.
  • Stir up enough doubt to make it easier for Trump partisans within the system to yield to his pressure and harder to do their duty.

What Trump realized perhaps better than any defeated president before him was that elections do not certify themselves. At every level there are people who must sign off on the results: Yes, these are the totals we counted at my precinct. Yes, this the sum of all the vote reports we received from the precincts in our county. Yes, these are the statewide totals that determine which slate of electors represents our state. And finally, January 6, when Congress would total up the electoral votes and proclaim the winner of the 2020 election.

All those people are human, and so they can be pressured or bamboozled out of doing their legally-defined duty. In Michigan, for example, Republicans on the Wayne County Board of Canvassers were pressured not to certify. Then the focus shifted to the state board, where one Republican member folded to Trump, but the other, Aaron Van Langevelde, did not. Later he told his story.

In November, we were tasked with certifying the results of the presidential election in the midst of widespread public discontent and controversy. Misinformation about the election – and election law – was rampant and growing worse by the day.

As tensions escalated, some political leaders urged the Board to withhold certification based on unproven allegations of voter fraud, even though we had no legal authority to do so. The Board was essentially asked to disregard the oath of office, to abandon its longstanding ministerial (or administrative) role, and to ignore a clear legal duty, along with a hundred years of legal precedent. We were asked to take power we didn’t have. What would have been the cost if we had done so? Constitutional chaos and the loss of our integrity. Our institutions and the rule of law were being tested. And as tensions worsened, it was clear that my family and I were in danger.

Trump put pressure on Republican state officials to block certification and substitute their own preferences for the will of the voters. His most famous attempt to suborn election fraud was recorded by Georgia Secretary of State Brad Raffensperger. After badgering Raffensperger with wild false claims, Trump makes his ask:

All I want to do is this. I just want to find 11,780 votes, which is one more than we [need] because we won the state.

And he issues this threat:

But the ballots are corrupt. And you are going to find that they are — which is totally illegal, it is more illegal for you than it is for them because, you know what they did and you’re not reporting it. That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk.

In other words, what if Trump does manage to stay in power? What might his Department of Justice do to Raffensperger?

Trump filed scores of bullshit lawsuits, hoping for favorable results from judges he had appointed. He did not get them. One Trump appointee, appellate court judge Matthew Brann, wrote:

Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.

Trump then pressured Republican-controlled state legislatures, pushing the dubious theory that legislatures can overrule the choices made by their voters. After meeting with Trump, the Michigan speaker of the House and Senate majority leader issued a statement:

The candidates who win the most votes win elections and Michigan’s electoral votes. We have not yet been made aware of any information that would change the outcome of the election in Michigan and, as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election

His plan to pressure Georgia legislators corruptly involved the Department of Justice. Trump sycophant Jeffrey Clark composed a letter for Acting Attorney General Jeffrey Rosen to sign that would falsely tell Georgia officials that DoJ had

identified significant concerns that may have impacted the outcome of the election in many states, including the state of Georgia.

The letter went on to recommend — as if DoJ had any business making such a recommendation — that the legislature convene a special session to investigate the election and possibly name a new slate of electors.

Rosen refused to sign the letter, and Trump decided not to sack Rosen in favor of Clark after he was threatened with mass resignations at the Department of Justice.

In the end, none of these efforts succeeded in stopping the states Trump lost from naming electors, or stopped those electors from voting for Biden.

But someone still had to count those votes: Congress, on January 6, in a joint session chaired by Vice President Mike Pence.

January 6. Three months before the election, with Trump trailing badly in the polls, I addressed the widespread Democratic worry that Trump would simply refuse to leave office.

Here’s something I have great faith in: If the joint session of Congress on January 6 recognizes that Joe Biden has received the majority of electoral votes, he will become president at noon on January 20 and the government will obey his orders. Where Donald Trump is at the time, and whatever he is claiming or tweeting, will be of no consequence.

If Trump’s tweets bring a bunch of right-wing militiamen into the streets with their AR-15s, they can cause a lot of bloodshed, but they can’t keep Trump in office. They are no match for the Army, whose Commander-in-Chief will be Joe Biden.

So if Trump wants to stay on as president, he has to screw the process up sooner; by January 6, it’s all in the bag

Congress and Pence, like Aaron Van Langevelde and Brad Raffensperger and everyone else in this long process that normally we hear nothing about, had a ministerial role to play on January 6. Their job was to count the electoral votes and announce a winner. They had no constitutional power to overrule the voters, the electors, or the states’ decision to appoint the electors. They all knew that.

Trump tried to claim otherwise. We have since heard reports from multiple sources about the pressure he put on Pence to overstep his legal powers. A memo by Trump advisor John Eastman outlines the plan:

At the end [of the session], he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

Alternate branches of the Eastman scenario involve Pence saying there is no majority of 270 and sending the election to the House, where the GOP controlled 26 of the 50 state delegations. Or perhaps the states could be asked to reconsider their electors, giving Trump another chance to lobby their legislatures.

Or perhaps the whole process could be sufficiently derailed that January 20 would come and go without Congress announcing a winner. Then we’d be off the constitutional track entirely, and what the Army decided to do might matter, as it does in so many third-world countries.

These are the plans Trump was referring to at the January 6 rally, where he said

John [Eastman] is one of the most brilliant lawyers in the country, and he looked at this and he said, “What an absolute disgrace that this can be happening to our Constitution.”

And he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. … All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.

It’s worth considering what the success of the Eastman plan would have meant to the future of American democracy:

The legal merits of the argument don’t matter very much — Eastman’s interpretation is widely derided as crazy, but the key point is that even if he’s right, he would have identified a wormhole in the Constitution permitting the vice-president to override the election results. Since the vice-president’s interests are typically aligned with the president’s, this power would allow the president’s party to stay in office through an indefinite series of elections.

The mob. Trump advisor Peter Navarro now confesses that he plotted to overturn the election, but for one thing: He denies that mob violence was part of that plan.

It may not have been part of Navarro’s plan, but it clearly was part of Trump’s. His initial invitation to the event on December 19 promised it “will be wild!” Anyone following the social media discussion prior to January 6 knew that people were coming with violent intentions. A pro-Trump election protest in DC on December 12 now looks like a trial run: It led to violence by the Proud Boys, who were also involved on January 6.

If anyone involved in planning the January 6 rally and demonstration was worried about inciting violence, that concern barely shows up in Trump’s speech. His instruction to “peacefully and patriotically make your voices heard” at the Capitol was hard to notice in the face of his 23 admonitions to “fight”.

We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.

We now know that Trump was watching closely on TV as his followers fought police and broke down barriers to get into the Capitol. His former press secretary Stephanie Grisham (who was still Melania’s chief of staff on January 6) told CNN

All I know about that day was that he was in the dining room, gleefully watching on his TV as he often did, “look at all of the people fighting for me,” hitting rewind, watching it again — that’s what I know.

When Kevin McCarthy talked to Trump from inside the Capitol, asking the president to call off his supporters, Trump replied: “Well, Kevin, I guess these people are more upset about the election than you are.”

“Fighting for me” involved setting up a gallows and chanting “Hang Mike Pence”, a sentiment that Trump has never criticized. In an interview in March, author and ABC White House reporter Jonathan Karl

reminded Trump that some of his supporters involved in the violent attack were calling for Pence to be killed.

“Well, the people were very angry,” Trump said.

“They said, ‘hang Mike Pence,’” Karl told Trump.

“It’s common sense, Jon. It’s common sense that you’re supposed to protect,” Trump said. “How can you, if you know a vote is fraudulent, right, how can you pass on a fraudulent vote to Congress?”

The possibility that his mob might have found Pence and actually tried to hang him [6] seems never to have bothered Trump.

There are many horrible almosts from January 6, but one of the worst is that the mob might have found the boxes that contained the electoral votes.

Both Democrat and Republican members of the House of Representatives and Senate needed to read aloud the certificates inside the boxes that recorded each state’s electoral votes. Congress then needed to count those votes before Vice President Mike Pence could confirm President-elect Joe Biden as the winner of the election.

One video shows how the Senate Parliamentarian’s office had been ransacked after extremists besieged the Capitol. Papers and files were strewn across furniture and the floor, possibly suggesting the mob had been searching for the boxes containing the votes needed to certify Biden’s win.

Copies existed, but loss of the originals would have been one more step off the constitutional track, and would have opened up new avenues for procedural delays and claims of illegitimacy.

As yet, the public has not seen a smoking gun, but the overwhelming weight of the evidence we do have says that Trump intended violence from the beginning. He had two goals for his mob: to delay Congress from certifying Biden’s win, and to intimidate Pence and others into going along with his unconstitutional plan to stay in power.

The past year. Initially, it looked like Trump had finally gone too far. Republicans had stuck by Trump through “grab them by the pussy“, through his “blame on both sides” defense of the Nazi rally in Charlottesville, through his siding with Putin against his own intelligence services at Helsinki, through his Ukraine extortion scheme, and many other outrages that they surely didn’t believe they had signed up for when they nominated him in 2016.

But trying to stay in power after losing an election is the worst abuse of his office that any American president has ever committed. Gloating at Kevin McCarthy while a mob threatened even the Republican members of Congress — it was too much.

For a few days. Then the Party began to rally around him. McCarthy went to Mar-a-Lago to kiss Trump’s ring only 22 days later. Mitch McConnell made a tough-sounding denunciation of Trump on the Senate floor, but only after he had rallied the troops to defend him in his second impeachment trial. Lindsey Graham had announced in a January 6 speech that he was “done” with Trump, but he really wasn’t.

Instead, it’s the Republicans who defended democracy against Trump who are on the outs. Aaron Van Langevelde wasn’t renominated. Brad Raffensperger faces a tough primary. Liz Cheney was cast out of the Wyoming GOP.

The only problem today’s Republican Party has with Trump’s attempted coup was that it failed. Next time they’ll try to do better.

Perhaps the best measure of how far the Party has moved in the last year was Ted Cruz groveling to Tucker Carlson on Thursday. Cruz’ sin, for which he could not apologize abjectly enough to placate Carlson, was to call the January 6 rioters “terrorists”. They weren’t terrorists “by any definition”, Carlson claimed. To say they were is “a lie”.

How about this definition, Tucker?

The unlawful use of force or violence against persons or property in order to coerce or intimidate a government or the civilian population in furtherance of political or social objectives.

That definition could be illustrated by this iconic photo.

[1] He appointed a commission to gather evidence of the 2016 fraud, but he disbanded it before it could issue a report admitting that it had found none.

[2] Bullshit sounds pejorative, but it is actually a well defined term.

When an honest man speaks, he says only what he believes to be true; and for the liar, it is correspondingly indispensable that he considers his statements to be false. For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.

[3] Many of the claims have been debunked in detail by Republican election officials who were rooting for Trump to win: most recently in Arizona, but also in Michigan, Georgia, and elsewhere.

[4] Whether Trump believes anything at all is still an open question. David Roberts’ analysis from 2016 holds up pretty well.

When he utters words, his primary intent is not to say something, to describe a set of facts in the world; his primary intent is to do something, i.e., to position himself in a social hierarchy. This essential distinction explains why Trump has so flummoxed the media and its fact-checkers; it’s as though they are critiquing the color choices of someone who is colorblind.

… It’s not that Trump is saying things he believes to be false. It’s that he doesn’t seem to have beliefs at all, not in the way people typically talk about beliefs — as mental constructs stable across time and context. Rather, his opinions dissolve and coalesce fluidly, as he’s talking, like oil on shallow water.

[5] That’s how you wind up with a legal team like Rudy Giuliani and Sidney Powell.

[6] Or Nancy Pelosi or any other elected officials they went looking for.

The Monday Morning Teaser

So we had the January 6 anniversary.

In this week’s featured post, I’ll lay out my theory of news-event anniversaries: News and History interface badly. News inevitably tends to be detail-focused, and to lose track of the larger story in favor of the new detail we just discovered. History, on the other hand, waits for all the dust to settle, which could take years. In the meantime, there’s a need to occasionally take stock of what we know so far, and retell the whole story as we now understand it, putting things in the perspective we expect historians to take eventually.

That’s what anniversaries are for. News may claim to be the first draft of History, but an anniversary report is a much-needed second draft.

So that’s what I’ll do today in “One Year Later”, which is still under construction. I’ll guess it comes out between 10 and 11 EST.

Meanwhile, the Omicron surge continues to push daily case-counts to record highs, and hospitalizations and deaths are beginning to rise as well. The Supreme Court heard arguments about Biden’s vaccine mandates, a case that has implications way beyond the current pandemic. The daylong traffic jam on I-95 may not seem like a big story nationally, but a WaPo columnist turned it into an attack on electric vehicles in an article that got a lot of national attention; that fear-mongering column needs a rational response, which I try to provide. The guys who lynched Ahmaud Arbery got an appropriately harsh sentence, Sidney Poitier died, and a few other things happened.

All in all, I thought the week needed an escapist closing, so I went with a video from the National Zoo of their panda cub enjoying his first snow. But the Covid horse race call was also irresistible, so I decided to have a double closing this week. We deserve it.

The weekly summary should be out between noon and 1.


The United States shall guarantee to every State in this Union a Republican Form of Government

US Constitution, Article IV, Section 4

This week’s featured post is “Democracy Returns to Michigan“.

This week everybody was talking about the Omicron surge

The vertical ascent in the case-count continued this week, reaching record levels. New cases are averaging over 400K per day, a record, more than tripling in the past two weeks. Hospitalizations are at 93K, up 35%. Deaths remain relatively flat, averaging 1254 per day, down 3%.

Bad as the case numbers are, the surge is still primarily restricted to the big cities east of the Mississippi. (Miami-Dade County in Florida is leading the pack with 525 new cases per day per 100K people. NYC isn’t far behind at 442.) You know it won’t stay there.

Hospitalizations and deaths always lag increases in new cases by 2-3 weeks, but the case-count started upwards around Thanksgiving, more than a month ago. So maybe Omicron is a less deadly variant. Maybe hospitalizations won’t skyrocket and deaths will flatten out.

That optimistic take is still speculative, but a theory I mentioned last week got some confirmation this week from animal studies: Omicron isn’t as likely as previous Covid variants to go deep into the lungs. That would explain the lower death toll. But animals aren’t people, so that opinion should still be held lightly.

Putting aside the possibility of death, the other nightmare outcome is long Covid. It’s way too soon to tell whether Omicron leads to more or less of that.

Friday, Dr. Adrienne Taren tweeted:

There are no ICU beds in all of Oklahoma, Kansas, Missouri, or Arkansas. Ask me how I know. Important clarification, no STAFFED icu beds that they will allow me to put a patient in.

Another interesting tweetstorm by a doctor: A medical team made up of “a Jewish physician, a Black nurse, and an Asian respiratory therapist” fight to save the life of a Covid patient with Nazi tattoos. The doctor realizes that this is getting harder for him as the pandemic wears him down, and thinks “Maybe I’m not OK.”

Conservative WaPo columnist Michael Gerson points out that the religious exemptions from vaccine and mask mandates that Evangelicals want have no basis in actual Christianity.

Most evangelical posturing on covid mandates is really syncretism, a merging of unrelated beliefs — in this case, the substitution of libertarianism for Christian ethics. In this distorted form of faith, evangelical Christians are generally known as people who loudly defend their own rights. They show not radical generosity but discreditable selfishness. There is no version of the Golden Rule that would recommend Christian resistance to basic public health measures during a pandemic. This is heresy compounded by lunacy.

Harvard Professor of Public Health Joseph Allen gives a primer on masks and mask-wearing.

and one year ago

Thursday is the one-year anniversary of the climactic event in Trump’s attempted coup: the invasion of the US Capitol that temporarily stopped Congress from counting the certified electoral votes that made Joe Biden president. I expect to see a number of summary articles about what we know now that we didn’t know then, which I’ll link to next week.

The NYT’s editorial board kicked that process off with a reminder that “Every Day is January 6 Now”, begging the country to face the reality that Trump’s (and his party’s) attempt to subvert democracy continues.

Countless times over the past six years, up to and including the events of Jan. 6, Mr. Trump and his allies openly projected their intent to do something outrageous or illegal or destructive. Every time, the common response was that they weren’t serious or that they would never succeed. How many times will we have to be proved wrong before we take it seriously?

On Sunday talk shows, members of the January 6 Committee indicated that they have “first-hand testimony” of what was going on inside the White House during the invasion of the Capitol by Trumpist rioters. CNN noted the significance in the Committee penetrating “Donald Trump’s wall of obstruction about what was going on inside the White House and his own family while he refused to stop the mob attack on the US Capitol”.

One thing should be obvious and can’t be repeated often enough: If Trump were proud of his actions, he wouldn’t be trying so hard to keep the American people from finding out about them.

Strangely, there appears to be almost no documentation of the investigation Republicans in the Wisconsin legislature did of the 2020 election.

The Washington Post and University of Maryland ran a very weird poll related to January 6.

A few of the questions were interesting, like “How proud are you of the way democracy works in America?” In 1996, very/somewhat garnered 79% compared to not-too/not-at-all’s 16%. Then there was a post-9/11 surge of pride that got that margin up to 96%-3%. Now it’s at 54%-46%.

Another interesting question was “How much responsibility do you think Donald Trump bears for the attack on the US Capitol?” 60% said a “great deal” or “good amount”, while 38% said “just some” or “none at all”. Among Republicans, though, the split was 27%/72%, with 48% choosing “none at all”.

But it starts getting odd when the poll asks about the Capitol invaders: Were they mostly violent or mostly peaceful? (violent 54%, peaceful 19%.)

So why exactly does that matter? What if “most” of the 1200 Capitol invaders were just opportunistic trespassers who came in nonviolently after the doors and/or windows were already broken, while only 400 or so intended to harm members of Congress and hang Mike Pence. Would that make the incident OK?

Apparently WaPo/UM asked the question that way so that they could compare it to a parallel question in a June poll about the George Floyd demonstrators — where, bizarrely, the result was 46%-46%. (My small town had a series of BLM demonstrations that were 100% non-violent, as did towns all over the country. Some protesters in some cities got violent, and in some cases the police were the ones who initiated violence. I can’t quite grasp the level of propaganda necessary to convince 46% of Americans that the demonstrators were “mostly violent”.)

But postulating some kind of equivalence between the Floyd demonstrations and January 6 is a right-wing trope, so asking parallel questions about them is already biased. (The events were different in kind. Whatever violence spilled out of a few of the BLM demonstrations was no threat to the Constitution; January 6 was such a threat.)

Question 7 asks whether Joe Biden’s election was “legitimate”. (Yes 69%, No 29%.) That’s a fine question to ask, but then the result is compared to a similar question about Trump in 2016. (Yes 57%, No 42%.) But circumstances make those two questions completely different in spite of their similar wording: In 2020, “illegitimate” meant legal illegitimacy based on imaginary election fraud. (In a separate question, 30% express a belief in “widespread voter fraud”.) In 2016, it was moral illegitimacy based on the Electoral College anointing the loser of the popular vote — which actually happened.

And most bizarre of all, the WaPo chose to headline a question about whether it is EVER justified for citizens to “take violent action against the government”. (34% Yes, 62% No.) I mean, seriously, the amazing thing to me is why the Yes number is so low. So, the people who tried to assassinate Hitler were unjustified? The 1776 revolutionaries were unjustified?

and the new year

It’s usually a mistake to assume that my particular acquaintances are typical of the world, but I can’t help noticing an overall sense of pessimism about 2022. People who let themselves feel hopeful about 2021 don’t want to get burned again.

But one lesson all the investing books teach is contrarianism: When everybody seems to be in the same mood, you can get an advantage by acting out of the opposite mood. So if you invest confidently when everyone else is panicking, or show caution when everyone else is taking chances, most of the time you’ll do well.

Consider the possibility that the same thing works on a larger scale. What if the current widespread pessimism means that there are opportunities lying around waiting to be seized? You would need to choose them carefully and judge them wisely, but there’s time to do that, because the optimists who would ordinarily beat you to them are temporarily sidelined.

I’ve got to agree with Amanda Marcotte:

Last night [i.e. New Year’s Eve], the subject of what year was worse — 2020 or 2021? — came up. And the very fact that we could talk about this with friends we were welcoming the new year in with answered that question. 2021 sucked, but don’t let recency bias fool you. It wasn’t as bad.

Unlike most prognosticators, Vox grades itself at the end of the year. They did pretty well in 2021.

If you’re experiencing blockages in your humor supply chain, check out McSweeney’s 21 most-read articles of 2021.

and you also might be interested in …

Betty White died just weeks away from her planned 100th birthday party. People magazine celebrated prematurely.

Several news sites picked out one moment in 1954 as her finest hour: She ignored demands not to host African-American tap dancer Arthur Duncan on her TV variety show.

“And all through the South, there was this whole ruckus,” White remembered in the [2018 documentary “Betty White: First Lady of Television”]. “They were going to take our show off the air if we didn’t get rid of Arthur, because he was Black.”

… Duncan appeared on the show at least three times. On another episode, White interviewed a Black child during the kids’ segment.

It’s unclear if her decision to keep Duncan affected the show’s fate, but it was repeatedly rescheduled for different time slots before quietly being taken off the air that same year.

Other people prefer to remember moments like this.

For a couple days, Harry Reid’s death dominated the news on Democratic-leaning outlets like MSNBC. I found myself changing the channel a lot.

Reid, like Chuck Schumer after him, led Democratic senators through an era during which Mitch McConnell was destroying the institution, producing our current dysfunctional Senate. Today, when the Senate avoids blowing up the world economy with a debt-ceiling crisis, it’s considered an accomplishment. The Senate was designed to be the nation’s center of debate, but in the current era the most important issues never even come to the floor.

In general, institutions based on good faith are hard to defend against determined bad-faith actors, so I’m not sure what Reid, Schumer, or any other Democratic leader should have done differently. But I also have a hard time celebrating their achievements.

Trump just endorsed his fellow fascist, Hungarian strongman Viktor Orban, who is facing a more unified opposition in an upcoming election.

Meanwhile, the EU is trying to find tools to discipline member countries that abandon democratic principles.

Rep. Eric Swalwell got a text message saying he should be hung or shot. He responded, and talked the guy down.

Department of Phony Outrage: First Kamala Harris spent money on cookware, and now National Review calls out AOC for eating outside in a restaurant in Florida.

Perfectly ordinary things become horrible when Democratic women of color do them. Remember when Michele Obama wore a sleeveless dress? That was in the days before it became OK for first ladies to have nude photos on the Internet. (Though a Black first lady still shouldn’t try it, I suspect.)

President Biden is White and male, but he also has been behaving outrageously. @GOP tweeted:

Joe Biden has now been to Delaware 31 times since he took office. Americans are struggling to make ends meet and he is on vacation.

That led Aaron Ruper to reply:

At this point in Donald Trump’s term he had gone golfing 91 times

Of course, Trump was more motivated to take golf vacations to his clubs in Mar-a-Lago and Bedminster, because he made money off the government every time he did.

Twitter just deplatformed Marjorie Taylor Greene for violating their Covid disinformation policy. Essay question: Is limiting the public’s exposure to Greene’s insanity good or bad for Republicans in general?

Matt Yglesias makes an interesting observation:

US oil production in 2021 is going to come out well ahead of the average figure from the Trump years, and I feel like neither party is going to want to say that.

and let’s close with something philosophical

Gingerbread Land is not just an eat-or-be-eaten society. Gingerbread people face ethical conundrums too.

Democracy Returns to Michigan

For the first time in at least a decade, voters will have a chance to elect the legislature they want.

In the year since the January 6 coup attempt, Americans have had many opportunities to lament the decline of democracy. Voter suppression laws have passed in multiple states, while several attempts at federal legislation to protect democracy have died in the Senate. But there is good news in at least one state: Michigan.

Structural hurdles at a variety of levels often get in the way of the type of government most Americans believe in (and believe we have): majority rule with legal protections for minority rights. Instead, the Electoral College has allowed the popular-vote loser to claim the presidency in two of the last six elections. In this century, the Senate’s small-state bias has allowed Republicans to control the Senate about half of the time, even though they haven’t represented a majority of country or gotten more aggregate votes than Democrats since 1996. Gerrymandering has given Republicans a 3-5% advantage in the House; in years when the two parties split the vote evenly, Republicans will get a sizeable majority of the seats.

Minority-rule Republican presidents backed by minority-rule Republican senates have established a partisan Republican majority on the Supreme Court that refuses to defend voting rights or end gerrymandering, but will defend the right of billionaires to spend as much as they want on elections.

Few states have endured as much minority rule as Michigan. Back in 2015, Michigan State University’s Spartan Newsroom explained the state’s political situation:

By all accounts, 2014 was a good election year for Republicans in Michigan. They increased their majority in the Michigan House of Representatives by three seats, now holding 63 to Democrats’ 47. Out of the 14 congressional races, Republicans won nine.

You may assume Republicans across the state received substantially more votes than Democrats. However, that assumption would be wrong. Although Republicans won nine of the 14 congressional races, Democrats received about 50,000 more votes out of 3 million cast.

In 2017, AP noticed the a similar pattern.

Last fall, voters statewide split their ballots essentially 50-50 between Republican and Democratic state House candidates. Yet Republicans won 57 percent of the House seats, claiming 63 seats to the Democrats’ 47. That amounted to an efficiency gap of 10.3 percent in favor of Michigan’s Republicans, one of the highest advantages among all states.

That also marked the third straight Michigan House election since redistricting with double-digit efficiency gaps favoring Republicans. [University of Chicago law professor Nick] Stephanopoulos said such a trend is “virtually unprecedented” and indicative of a durable Republican advantage.

In the 2018 elections the pattern continued: Democrats got a majority of the votes, but Republicans got a majority of seats in the legislature. In the state senate, Democrats won 51.3% of the votes, but got only 16 seats to the Republicans’ 22.

Imagine being a Michigan voter outraged by the fact that the Republican leadership of the state legislature was effectively untouchable. What could you do — ask nicely if the gerrymandered legislature would pass a law to end gerrymandering?

It turned out there was still one outlet for the popular will that Republicans hadn’t managed to choke off: ballot initiatives, where the electorate gets to change the law itself. So in 2018, Michigan voters passed Proposal 2 by a 61%-39% margin. (In 2020, Republicans in multiple states tried to put limits on ballot initiatives.)

Prop 2 created

a 13-member citizens redistricting commission made up of four Republicans, four Democrats, and five people who identify with neither party. The proposal would bar partisan officeholders, their employees, lobbyists, and others with ties to the current system from becoming commissioners.

Republicans sued to block the law from taking effect, but they lost, and so

One of the country’s most gerrymandered political maps has suddenly been replaced by one of the fairest.

The new Michigan map still has a slight Republican bias — expect the GOP to hang on to small majorities if the votes split evenly — but that’s because Democrats tend to cluster in Detroit and other cities, not because the Commission rigged things in the GOP’s favor.

And don’t be shocked if Republicans win legitimately. Michigan is a swing state that Biden won by only 2.8%, and many experts are predicting 2022 to be a bad year for Democrats. (A lot can happen between now and November, though.)

But this time, and for the rest of the decade, the voters will decide. And that’s what democracy is all about.

Maps in some other swing states are still undetermined, with a few hopeful (and a few discouraging) signs.

Ohio also passed an anti-gerrymandering ballot proposition in 2018, with an even bigger majority than in Michigan: 75%-25%. However, the legislature still had a role in drawing the new map for congressional districts, which gives Republicans an even bigger advantage than they had in the previous decade. The Ohio Supreme Court is considering whether or not they will get away with it.

Pennsylvania is another swing state whose map is still undecided. The Republican legislature has submitted a map that favors the GOP, but it still needs the approval of Democratic governor Tom Wolf.

Wisconsin has been one of the most gerrymandered states in the country, another state where Democratic votes often lead to substantial Republican majorities in the legislature and in Congress. In 2018, for example, Republicans lost the governorship and other statewide offices, but still held on to 63 of 99 seats in the Assembly.

Wisconsin looks likely to remain rigged: The gerrymandered Republican legislature and the Democratic governor couldn’t agree on a map, kicking the decision to the state Supreme Court. The court hasn’t yet produced a final map, but has committed itself to a minimum-change model that ignores partisan results, essentially maintaining the gerrymandered 2010-census map.

You can find a state-by-state analysis of the redistricting process at 538.

The Monday Morning Teaser

Having gotten the pessimism out of my system last week, I’ll start 2022 with an upbeat featured post: “Democracy Returns to Michigan”.

Since the 2011 redistricting, Michigan’s legislature has been so blatantly gerrymandered that the state has arguably not had the “Republican form of government” that Article IV of the Constitution guarantees to every member of the Union. But in 2018 the voters rose up and passed a ballot initiative establishing a non-partisan redistricting commission. In some states, gerrymandered Republican legislatures have managed to circumvent anti-gerrymandering ballot initiatives, but this one seems to have worked. So in November, the voters of Michigan should finally get to decide which party controls their legislature.

That post should be out by 9 EST.

The weekly summary will look at the Omicron surge, the upcoming anniversary of the January 6 coup attempt, the New Year, Betty White, and a few other things, before closing with an ethical dilemma that not even gingerbread people can escape. It should be out before noon.