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Harris, Trump, and Our Broken News Media

August 19, 2024 – 9:50 am

In recent weeks, Donald Trump and Kamala Harris have taken opposite approaches to dealing with the media. Harris has taken few on-the-record questions from reporters, and has focused instead on talking to the voters directly in rallies. She and her running mate Tim Walz are drawing large, raucous crowds that cheer their every word, much the way Trump’s crowds did in past elections, when he was more energetic and his act wasn’t quite so stale.

Trump, meanwhile, seems reluctant to leave home. He has settled into a schedule of two rallies a week, appearing only eight times in the month since the Republican Convention. Harris, by contrast, recently spoke to seven rallies in five days, and has made her way towards the Democratic convention on a bus that stopped in numerous small towns in Pennsylvania. Instead, Trump held news conferences at his Mar-a-Lago home and his Bedminster golf club, as well as an online interview with centibillionaire Elon Musk.

For obvious reasons, the media prefers Trump’s approach, even though it seems to be working badly for him. Harris has been surging in the polls, and now leads Trump in all the national polling averages (RCP, 538, NYT, Economist), as well as in recent polls of most swing states. While Biden’s hopes for Electoral-College victory followed only one shaky path (Wisconsin, Michigan, Pennsylvania — where he was behind, but usually within the margin of error), Harris is also ahead or very close in Georgia, Arizona, Nevada, and even North Carolina. She is unlikely to carry Ohio or Florida, but is running strong enough that Republicans will have to actively defend those once-safe states.

Nonetheless, the media holds that it is Harris who needs to change her strategy. She “must speak to the press” and “needs to present her ideas” by answering press questions. Otherwise she’s running a “no-substance campaign“. She needs an Issues page on her campaign website, filled with white papers proposing specific policies that can be analyzed and critiqued in the media (because that worked so well for Hillary Clinton).

All this lines up with a vision of democracy I grew up believing: The press represents the People. Reporters use their access to ask the questions that voters want answered. When they demand answers, it is because the People need those answers. Ignoring the press means ignoring the voters, which the voters will resent.

And sometimes, the press is an older, wiser aunt or uncle to the voters. Reporters have the time to study issues and become experts in them, so they ask questions that the voters would ask, if they knew more. While voters may get distracted by the flash and gimmickry of a campaign, the press will stay focused on what’s truly at stake.

Quite likely you are laughing now, or at least smiling, at my younger self’s naivety. Because if the press ever filled such a role, it hasn’t for a very long time. James Fallows was already diagnosing the problem in his 1996 book Breaking the News: How the Media Undermine American Democracy. Rather than raise the questions the voters are or should be asking, the press covers elections like sporting events: Who’s ahead? What is each team’s strategy? How likely is that strategy to work? Or (like trouble-making junior high gossips) they try to get one candidate to say something nasty about the other, which they can take to the other candidate and (hopefully) get something nasty in response.

None of that is what wavering voters want or need to know. None of it helps the electorate imagine how a future Smith or Jones administration will affect their lives.

For example, look at what reporters asked about when they did get access to Harris: her plans to debate Trump, and what she thought of Trump’s criticisms of herself or Tim Walz. Not a word about taxes or inflation or competing with China or climate change or abortion.

And why would Harris sit down for an extended interview with a “neutral” journalist, when she has just seen how un-neutrally journalists treated President Biden? After his disastrous debate with Trump, Biden tried to prove his mental competence by meeting with ABC’s George Stephanopoulos. Stephanopoulos could have simultaneously tested Biden’s mind and served the public interest by asking a wide range of questions that would force the President to jump from one serious issue to the next: Ukraine, the economy, voting rights. Instead, he spent 22 minutes badgering Biden with different versions of the same question: What would have to happen for Biden to drop out of the race?

When Biden held a press conference after the NATO summit, and demonstrated his deep and detailed knowledge of problem areas around the world, headlines the next day focused on moments when he said the wrong name, and on his “defiant” insistence on staying in the presidential race. (Who was he defying, exactly?)

Trump, meanwhile, has the media tamed. After years of insults and abuse, the “fake news media” doesn’t even try to ask follow-up questions that challenge his false claims. Whatever he says is just “Trump being Trump”.

Saturday, for example, Trump appeared not to know what state he was in. At a rally in Wilkes Barre, Pennsylvania, he asked the crowd: “Would that be OK, North Carolina?” If Biden had done that a few weeks ago, it would have been a banner headline. But CNN , the NYT, and the WaPo didn’t find Trump’s confusion worth mentioning. (Robert Reich claims to have asked reporters why they don’t cover “Trump’s malfunctioning brain”. They reply that it’s old news.)

Post-event fact-checking has its place, but the checks never catch up to the lies, because far fewer people see them. NPR fact-checked Monday’s Mar-a-Lago press conference and found 162 lies and distortions delivered in 64 minutes — approximately one every 24 seconds. But the news networks had given Trump free air time to spew those lies with no real-time corrections. He took full advantage by telling the millions of viewers these howlers:

  • Willie Brown told him “terrible things” about Kamala Harris, which Brown would do because Trump knows him “very well” after they “went down in a helicopter” together. (This entire story is a fantasy. Three decades ago, Trump shared an emergency helicopter landing with a different Black politician who has not discussed Harris with him.)
  • “Millions” of people are coming to America from other countries’ “prisons, from jails, from mental institutions”.
  • Harris replacing Biden as the Democratic candidate is “unconstitutional”.
  • His January 6 crowd was larger than the crowd that heard Martin Luther King’s Dream speech.
  • Reversing Roe v Wade is what “everybody” wanted: “That’s Democrats, Republicans and Independents and everybody, liberals, conservatives, everybody wanted it back in the States, and I did that. … I’ve done what every Democrat and every every Republican wanted to have done.”
  • An electric truck is “two-and-a- half times heavier” than a gas-powered truck.
  • Democrats want to allow abortions after birth.
  • He was “very protective” of Hillary Clinton. “They used to say, lock her up, lock her up. And I’d say, just relax, please.” (You remember that, don’t you?)

Check NPR’s article for why none of that is even close to being true.

But in fact Trump’s Potemkin press conferences are even worse than just the specific lies, in ways you can only appreciate if you watch the whole video or read the whole transcript. Because in the entire 64 minutes, there was not a single speck of useful information.

When he wasn’t lying outright, he was making claims about the parallel universe where he was reelected in 2020. Everything is perfect there: There was no post-Covid inflation. Putin didn’t invade Ukraine. Hamas didn’t attack on October 7. Iran folded under the pressure of his sanctions and ended its nuclear program. That’s why he doesn’t need to tell us how he would deal with these situations, because none of them ever would have happened if he were still president.

Or he was predicting disaster without offering any explanations: We’re on the verge of “a depression of the 1929 variety”. Simultaneously, “we’re very close to a world war”. If Harris becomes president “It’s going to be a failure the likes of which this world has never seen.”

Or he was testifying to things that (even if they were true) he couldn’t possibly know: President Biden “is a very angry man right now. He’s not happy with Obama and he’s not happy with Nancy Pelosi.” (Does Biden call him late at night and confide his deepest thoughts?)

Or he was throwing around value judgments unmoored from any standards: Biden is the worst president in US history. Harris is the worst vice president, and also “the most unpopular” (though she’s kicking his butt in the polls). She is “a radical left person” and also “the worst Border Czar” (a position that has never existed). Nancy Pelosi is “crazy”. Kamala Harris and Gavin Newsom “destroyed San Francisco” and “destroyed the state of California”. “We have a very sick country right now.” Josh Shapiro (whose approval/disapproval rating is at +18) “is a terrible guy and he’s not very popular with anybody.” Tim Walz is “heavy into the transgender world”.

In short, he said nothing of any news value, and nothing that would help a voter picture his life in a second Trump administration. The “press conference” was a string of take-it-or-leave-it assertions, a naked attempt to overpower voters’ thought processes rather than convince them of anything.

But you would not grasp any of that from the news stories written about the event. The Hill described it as “long and characteristically rambling”, i.e., Trump being Trump.

After the Mar-a-Lago press conference, Lawrence O’Donnell called out his colleagues in a rant that is well worth watching in its entirety. He began by questioning why a network (especially his own MSNBC) would put Trump on the air to say whatever he wanted without live fact-checking. But then he unloaded on the whole Trump/Harris comparison:

There are rumblings now in the news media about Kamala Harris as a presidential candidate not doing what Donald Trump did: stand in front of reporters today and take their questions. And some of the tiny minds in the news media continue to give credit to Donald Trump for standing up and lying in response to every single question they ask. A lie is not an answer. Donald Trump never answers reporters’ questions. Anyone in the news media that tells you Donald Trump has answered reporters’ questions and Kamala Harris hasn’t is lying to you. And they are too stupid to know they are lying to you because they don’t know what an answer is.

Trump has no policy proposals worth mentioning. The RNC platform promises that he will end inflation “very quickly”, but gives no hint as to how. He has said he would end the Ukraine war in 24 hours, but again, that sound bite is the whole of his stated policy on the topic.

Or at least, he has no proposals he will admit to. Project 2025 is full of detailed policy for a second Trump administration, but its proposals are unpopular, so Trump denies it, despite a recently-revealed undercover video in which Project 2025’s Russell Vought gave his pitch to British journalists that he thought were prospective donors. Vought dismissed Trump’s denials as “graduate-level politics”, and noted that Trump is “not even opposing himself to a particular policy”.

But Project 2025 never came up during the Mar-a-Lago press conference, and Trump faces no general demand from the press for policy details. Only Harris does.

The liberal blogosphere is having none of this. Jeff Tiedrich imagines what Harris will be asked when she finally does hold a press conference:

let’s imagine that Kamala agreed to hold a presser tomorrow. we all know what would happen: it would devolve into a shit-show. the press would waste everyone’s time — and drop our collective IQ by three points — by asking worthless questions.

“Madam Vice President, Donald Trump says you only recently became Black. what is your response?”

who fucking cares? what fresh insight could possibly be gained by asking these kinds of questions? what’s Kamala going to say, that Donny’s a racist lunatic? we already know this. what would be the point of bringing up the toxic sludge that oozes out of Donny’s rancid anus-mouth?

He predicts further questions of similar heft, all based on Republican talking points that have nothing to do with reality and nothing to do with what voters want to know.

Justin Rosario adds:

I want to be super clear: The press is demanding Harris give them access so they can:

A. Badger her with stupid questions

B. Generate soundbites they can take out of context

C. Try to catch her with gotcha questions

D. Use A-C to undermine her campaign because Donald Trump is imploding at light speed and their precious horse race is threatened.

The only useful suggestion I’ve heard from the mainstream press comes from the WaPo’s Perry Bacon. He begins by invoking the old-time religion of the press’ role in democracy:

Harris is making a mistake. She should be doing interviews and other engagements with journalists, in recognition of their important role in democracy.

But after more-or-less acknowledging that reporters haven’t been playing that role and probably can’t be trusted to do so in the future, he does contribute one good idea: Continue ignoring mainstream political reporters (like Bacon himself), but do interviews with “wonky” journalists who specialize in particular areas, like foreign policy, economics, or the environment.

This makes sense to me. CNN or the Wall Street Journal may be eager to ask Harris inside-baseball questions about polls or her response to ridiculous Trump accusations (like what she’ll do about his mythical “migrant crime wave” or whether she supports abortion-after-birth), but Grist would undoubtedly want to know substantive things about her approach to climate change, while Foreign Policy would be curious about how her approach to Iran or Israel might differ from Biden’s. A reporter who specialized in immigration policy — even one from the NYT or the WaPo — would already know that she was never “Border Czar”, understand the details of the bipartisan border bill Trump had his allies block in Congress, and ask meaningful questions about how to help local governments whose resources are being stretched by the inflow of migrants.

Unlike general press conferences or one-on-ones with the likes of Stephanopoulos, those interviews actually could serve democracy. It might be worth a try.

By weeklysift | Tagged , | Comments (20)

Where Did Inflation Come From?

August 5, 2024 – 10:08 am

Worldwide inflation has been a lingering symptom of the Covid pandemic. Trump and Biden share blame for the US inflation, and reelecting Trump won’t fix it.

Polls show that voters trust Trump more than Biden (and probably Harris) on economic issues, and the main reason for that is the inflation we’ve seen since Biden took office. The Republican platform and Trump’s convention speech both appealed to that issue, claiming that Trump will “end inflation … very quickly”.

A few things get lost in this promise, like:

  • Inflation is already ending, just as the Great Recession had already ended when Trump took office in 2017. So all a reelected President Trump will have to do to “end inflation” is to announce that it’s over. That can happen “very quickly”.
  • The low gas prices Trump’s supporters point to weren’t due to his energy policy. They came from the fact that the economy was shut down for Covid and nobody was driving.
  • Post-Covid inflation has been a worldwide phenomenon. Any explanation that pins the blame on Biden alone is simplistic.
  • Many of Trump’s policy proposals will increase prices, not lower them.

But rather than point fingers about inflation, let’s see if we can tell its story in a way that makes sense.

The roots of the recent inflation stretch back to the Covid pandemic, which reached the US in 2020, the final year of Trump’s term. That seems like a weird claim to make, because in 2020 itself, the threat was deflation. Gas prices, for example, dropped to an average of $1.84 in April, 2020, because the economy was largely shut down. If you had gas to sell, few people were buying. As the economy contracted and more and more people lost their jobs, the economic threat was a Depression-style cascade of bankruptcies: My business is closed, so I can’t pay my suppliers or landlord, so they go bankrupt and can’t pay the people who were counting on them. And so on.

But let’s tell the story from the beginning. Today, after a vaccine and treatments like Paxlovid have been developed, and after the virus itself has evolved into less lethal forms, many of us have repressed our memories of just how terrifying the early months of the Covid crisis were. At the time, the only treatment to speak of was to keep patients’ blood oxygen up in any way possible, and hope that if they didn’t die their immune systems would eventually win out.

In the early places where the infection got loose, such as Italy and New York City, it overwhelmed the health-care system. Sick people languished on cots in hallways, and refrigerator trucks supplemented the morgues. A lack of good data made it hard to determine just how lethal the virus was. Nobody knew how many asymptomatic cases hadn’t been noticed, and the number of Covid deaths might be either higher or lower than death certificates indicated. But the early estimates of lethality were around 3%; about 3% of infected people died. (That later got revised downward to 1.4%.)

So governments faced a lose/lose choice: If the virus were allowed to run wild, probably everyone would get it eventually, so about 3% of the population would die. In the US, that would mean over 10 million people. (The 1.4% rate implies around 5 million American deaths.) The alternative was to shut down non-essential activities where crowds of people might gather and spread the infection: sports events, political rallies, churches, concerts, and so on. Additionally, bars and restaurants, schools, movie theaters, factories, and offices were likely to spread the virus. When social interactions were unavoidable, governments could encourage masking and social distancing.

The point of all this wasn’t to defeat the virus, but to slow it down. The hope was that a slower-spreading virus wouldn’t overwhelm the healthcare system (“flatten the curve”, we were told), and that extra time might allow discovery of better treatments or a vaccine. That more-or-less worked out: In the US, “only” 1.2 million died, rather than 5-10 million. (If we had handled the virus as well as Canada, perhaps fewer than half a million Americans would have died.)

But there was a cost. The unemployment rate went over 14%, and that was an undercount. Millions of other Americans continued to receive a paycheck, but weren’t really working. (A government loan program allowed small-business loans to be forgiven if a business maintained its payroll.) What was going to happen to those unemployed through no fault of their own? What good did it do to keep them from getting sick if they were going to lose their homes and starve?

Again, a lose/lose choice: In order to avoid mass poverty, cascading bankruptcies, and economic destruction that might take years to recover from, governments propped up people’s incomes. In the US, I already mentioned the loan program. Unemployment benefits were repeatedly extended beyond their ordinary expiration dates. State and local governments got federal money that allowed them not to fire their employees. Landlords weren’t allowed to evict non-paying tenants. Occasionally, the government would just send everyone a check, whether they were covered by some income-protection program or not. Other countries took similar steps.

Because tax revenues were collapsing at the same time that governments were taking on these additional expenses, deficits skyrocketed. The largest US federal budget deficit ever came in FY2020 (October 2019 through September 2020), the last year of the Trump administration: $3.13 trillion. The next year (1/3 Trump, 2/3 Biden) was nearly as bad: $2.78 trillion.

What that money was doing was even more inflationary than the deficit itself: People were being paid not to produce anything. So: more money, but fewer goods and services to spend it on. This was inevitably going to increase prices.

But inflation didn’t hit right away, because people confined to their homes didn’t spend much. There was no point buying a new car, for example, when your current car was sitting unused in the garage. The cruise lines and theme parks were shut down, and no one wanted to risk spending hours sitting elbow-to-elbow in an airliner, so vacation spending collapsed. You had to keep buying food, but beyond that, the richer half of households worked from home, cashed their government checks, and let their money sit in the bank.

But when the economy opened up again, all that money was bound to come out and drive prices upward. In addition, not everything restarted at the same rate, so the economy developed bottlenecks that increased prices further. The Ukraine War disrupted the world’s grain and oil markets, adding additional inflationary pressure.

Post-Covid inflation was a worldwide phenomenon that peaked in 2022, when US inflation was 8%. Bad as that was, things were even worse in comparable economies like the UK (9.1%) and European Union (8.8%), while some smaller countries saw catastrophic levels, like Turkey at 72.3% and Argentina at 72.4%.

The final lose/lose choice was how fast to restart the economy. Unemployment was still over 6% when Joe Biden became president, and he had learned a hard lesson from the aftermath of the Great Recession. The stimulus spending President Obama had managed to secure during the two years when he had congressional majorities wasn’t sufficient, and after 2010 he battled Republican leaders in Congress for every penny. The result was an economic recovery so slow that many Americans barely noticed it. Not until 2016 did economic indicators return to the normal range. They continued upward from there, allowing Trump to take credit for “the greatest economy ever” when the trends Obama established continued into his term. (Look at the GDP and unemployment graphs below and see if you can pick out when the “Trump boom” started.)

Given Obama’s experience, Biden opted for a faster restart. To his credit, he invested the stimulus money wisely: building infrastructure and laying the groundwork for a post-fossil-fuel economy.

But the main thing he bought with that spending was job creation. By early 2022, the unemployment rate was back at pre-Covid (“greatest economy ever”) lows, and went slightly lower still. But Biden’s stimulus exacerbated the inflation that was already due to arrive.

The Federal Reserve responded to that inflation by increasing interest rates, which has brought its own hardships. The US economy has been surprisingly resilient under those interest rates, but it remains to be seen whether inflation can be beaten without starting a recession. (As I write, data from a slowing economy is sending the stock market plunging.)

So the impact of the Covid pandemic continues to be felt.

Conclusions. Nostalgia for the pre-Covid 2019 economy is understandable, but thinking of it as “the Trump economy” is a seductive illusion. Trump’s main economic achievement was that he didn’t screw up the recovery that began under Obama.

When Covid hit, the effect was going to be felt somewhere: as millions of deaths, as depression, or as inflation. Trump and Biden made similar policy choices, taking on massive deficits to lessen deaths and avoid depression. The bill for those choices was inflation, which in many ways was the lesser evil. Even in retrospect, I can’t wish the US government had taken a different path.

That bill came due under Biden, but the responsibility for it falls on Trump and Biden alike. That’s not because either of them performed badly, but because the pandemic’s toll had to be paid somehow. Governments got to choose the form of payment (and most made similar choices), but not paying wasn’t an option.

Trump’s primary talent is salesmanship, so he excels at taking credit for anything good that happens and avoiding blame for anything bad. His 2024 campaign has done an impressive job of selling 2019 as the typical “Trump economy”; if things got drastically worse in 2020, that wasn’t his fault. So if we just reelect him, he often implies, it will be as if Covid never happened. 2019 will magically return.

It won’t. Presidents do not wave magic wands, or move economies with their personal charisma. Presidents affect economies through their policies of taxing, spending, and regulation. So far, the policies Trump has put forward are vague and his numbers don’t add up. (The Republican platform promises to cut taxes, increase defense spending, rebuild our cities, maintain Social Security and Medicare at current levels, and yet reduce deficits by cutting “wasteful spending” that it never identifies. We’ve heard such promises before, and they never work out.) Some of his proposals, like a 10% across-the-board tariff on imports or deporting millions of low-wage workers, would increase inflation, not decrease it.

Whoever we elect in November, I can promise you one thing: 2025 will be its own year. It won’t be 2019 again.

By weeklysift | Tagged , , | Comments (15)

The Unfathomable Mystery of Biracial Americans

August 5, 2024 – 9:14 am

Thanks, Donald. Without your help, I never would have found a truly endearing Kamala video.

It all started with Donald Trump saying something that made even less sense than he usually does. Wednesday in Chicago, during his half-hour interview at a convention of the National Association of Black Journalists, he called attention to the great conundrum of Kamala Harris’ biracial identity.

She was always of Indian heritage, and she was only promoting Indian heritage. I didn’t know she was Black until a number of years ago, when she happened to turn Black, and now she wants to be known as Black. So I don’t know, is she Indian or is she Black?

The first thing to note about this comment, which I’ll forget if I don’t mention it right away, is that it’s a lie. Not just that Harris has been open about her blackness all along, but that Trump himself knew.

Trump donated to Harris twice in 2011 and 2014, during her campaign for attorney general of California, around the time she was being touted as “the female Obama” precisely because she is Black. In 2020, a Trump campaign spokesperson pointed to those donations as proof that Trump was not racist, saying, “I’ll note that Kamala Harris is a Black woman and he donated to her campaign, so I hope we can squash this racism argument now.”

Now on to the “Is she Indian or is she Black?” part. I plan to say some serious things in this article, but I won’t be able to get through it without mixing in some humor, because I just can’t pretend that I’m taking this question seriously. I mean, we’re not talking about the wave/particle duality of light here. Harris was born in Oakland to a mother from India and a Black Jamaican father. That really shouldn’t be hard to understand, even if you’re a 78-year-old ex-president whose Secretary of State once called him “a fucking moron” and whose top economic adviser judged him to be “dumb as shit“. According to the 2020 census, multiracial people make up over 1/10th of the US population, so you might expect Trump to have met such a person at some time or another.

Knowing that Harris likes to use Venn diagrams, The F*cking News made one to help her explain the situation.

And Trump’s notion that Kamala at some point “turned Black” evoked memories of a 2016 SNL cold open..

But enough levity: What is going on here?

Unfortunately, I can’t start discussing that question without getting into the ways Trump has dug himself in deeper. I mean, we all say really, really dumb things from time to time, especially under pressure. But after the fact, most of us try to compensate in one of two ways: We either apologize, or we just shut up and hope everybody forgets about it. (That’s the great virtue of the current era: No matter how badly you embarrass yourself, the 24-hour news cycle rolls on, and your blunders will soon scroll off everybody’s news feeds.)

But not Donald Trump. After having time to listen to advisers and think it through, he has spent the last several days continuing to make some kind of a controversy out of Harris simultaneously identifying both with her mother’s family and her father’s family, like that’s just impossible without some kind of betrayal or duplicity.

Remember Trump’s birther days, when he claimed that the detectives he had sent to Hawaii to investigate Obama’s birth certificate “cannot believe what they’re finding”? (Michael Cohen has since verified what I long suspected: “He never sent anybody anywhere, he just said it and everybody sort of bought into it.”) Well, birtherism is back: On TruthSocial, Trump reposted Laura Loomer’s image of Kamala’s birth certificate, which lists her father as coming from Jamaica, not Africa (which no one ever claimed).

He also posted a photo of Harris with her mother’s Indian family, as if that proved something. See: She’s been claiming all along to be Indian, so she can’t possibly have been Black.

But the crowning piece of Trump’s evidence is a video where Kamala herself says “I am Indian.” It’s a 36-second clip from a longer video of Kamala cooking with another Indian-American woman.

Crazy Kamala is saying she’s Indian, not Black. This is a big deal. Stone cold phony.

But he couldn’t even edit the video well enough to make his point: The two women agree that they both have South Indian roots, and Kamala says, “You look like the entire one-half of my family.” The host is not at all confused about Harris’ family having another half, because why would she be? It’s perfectly simple, as everyone but Trump understands.

But here I got curious: I myself have been experimenting with cooking Indian food lately, so I couldn’t help wondering what they made. It wasn’t hard to find out that the other woman was the actress Mindy Kaling, and from there a little googling led to a 9-minute video on Kamala’s own YouTube channel. It was made in 2019, the first time Kamala ran for president. They’re cooking masala dosa.

You should absolutely watch this; I wish I could get every voter to watch it. It’s most endearing, humanizing view of Kamala Harris I’ve ever seen. (Thank you, Donald, for helping me find it.) It’s two women cooking together, laughing a lot, and bonding over memories of how their mothers cooked. (Both families stored their spices in re-purposed Taster’s Choice Coffee jars.)

If you get charmed by it, watch the follow-up of other Indian-American women’s reactions.

I find it impossible to imagine a comparable Trump video. I know cooking is typically a female bonding thing, so I wouldn’t expect to see Trump cook with anybody. But translate this into male stereotypes any way you want: fishing, outdoor grilling, carpentry, going to the big game. Trump could never make a video like this, because Trump doesn’t bond; he either dominates or submits. He’s either the Big Dog, or the runt who trails after the Big Dog (as Trump did with Putin in Helsinki).

The other thing I can’t imagine is anybody thinking this video disproves the authenticity of Harris’ blackness. Whose character is so narrow that there isn’t room to be different with different people, while still being yourself? (The Emmy-winning TV series “Severance” resonates precisely because it builds on the common experience of being different at work than you are at home.) Being both Indian and Black doesn’t make Harris “a chameleon”, as J. D. Vance charged. It makes her a typical resident of our complex 21st century society. (You’d think J. D. would understand biracial identity, since his own children are both Indian and White. Do you think he’ll make them choose someday?)

Which brings us back to the question: What is Trump doing? He’s lying. He knows he’s lying. He’s saying something incredibly stupid and then doubling down on it. But why?

Some writers warn us not to overthink questions like this. Trump’s niece Mary advises:

After eight years of covering Donald, too many journalists have gotten into the habit of seeing strategy in his crude and instinctive behavior. The truth is quite simple–Donald can’t help himself. When it comes to him, we shouldn’t overthink it. He is exactly what he seems: a racist, a misogynist, a liar.

And Josh Marshall agrees:

[W]e don’t have to fall into this Trump confusion matrix where we’re kind of beguiled by some mysterious, secret, ingenious plan that explains why a bizarre racist outburst that normal people look at and think “What’s wrong with him?” is actually a genius political move. It’s just an outburst and attempted reset. No more, no less.

But at the risk of giving Trump too much credit, let’s start with a simpler question: Why did he accept the NABJ invitation to begin with? Three possibilities present themselves:

  • He wanted to appeal for Black votes. This wouldn’t be unreasonable, given Trump/Biden polls that showed him making inroads with Black men. But if that had been his motive, he would have behaved differently. He’d have fended off aggressive questions without rancor and repeatedly returned to nostalgia for the pre-Covid economy, as if anything in his policy proposals would bring it back. The fact that he was combative from the very first question indicates that he wasn’t there to win Black votes.
  • He wanted to convince White suburban voters that he’s not racist. Overt racism plays badly among educated suburban voters, especially women. That’s why dog whistling was invented: to appeal to White racists without scaring White moderates. That’s also why all Trump’s campaigns have been so diligent about recruiting somebody to stand behind him at rallies with a “Blacks for Trump” sign. It’s not important that Trump have much actual Black support, but he has to appear to have Black support, to placate White moderates. From this point of view, the ideal thing would have been to make no real news at the NABJ convention. Then the story would be the simple fact of Trump’s appearance before a Black audience rather than anything he said. Obviously, that’s not what happened.
  • He wanted to pick fights that will appeal to his White racist base. This interview will produce many clips that will go viral in the White racist echo chamber: Black women try to trap Trump, but he is not intimidated and stands up to them, challenging the suggestion that he is too chicken to debate Harris, and proving that he will stand up for you when the critical race theory goblins come for you.

It seems clear to me that the third option is correct: Trump’s false claim that Harris wasn’t Black until recently, and that before that she only emphasized the Asian half of her heritage, only makes sense if you’re playing to a White racist audience. Black people understand that being only half African is more than enough to get racists to treat you as Black. And choosing to emphasize some other part of your heritage is never an option, because racism isn’t a choice you make, it’s a choice racists make about you. Also, non-racist Whites have no trouble processing the notion of mixed-race, which Trump seems so confused by.

So Trump’s script casts the Black journalists as antagonists in his performance as the Champion of Beleaguered White Men. Once you see that, his subsequent actions only need to make sense in the worldview of racist White men, who often frame race as a scam, a way for non-Whites to claim some kind of sympathy or benefit. The Atlantic’s Adam Serwer spells it out.

Trump’s attack on Harris is meant to evoke this worldview, in which Black advancement is a kind of liberal conspiracy to deprive white people of what is rightfully theirs. Trump is saying that Harris became Black only when it was obvious that being Black conferred social advantage. … Trump’s smear of Harris is also an accusation of racial disloyalty—that she was ashamed of being Black until it was politically convenient. Racial treason is something Trump finds particularly offensive. He has begun referring to Senate Majority Leader Chuck Schumer, who is Jewish, as “Palestinian,” doubly racist in that it turns Palestinian into an epithet and castigates a Jewish man for being insufficiently loyal to his own people. The idea that liberal Jews are not truly Jewish operates similarly to Trump’s attack on Harris, in that it gives the speaker permission to attack a Jewish target in anti-Semitic terms because the target is not “truly” Jewish. Attacking Harris in racist terms, under this logic, is not racist, because she is not “truly” Black. The point of this rhetorical maze is simply to justify racist attacks on a particular target while deflecting accusations of bigotry.

And Noah Berlatsky elaborates:

[A]s a fascist, he believes that only white people—or more specifically, only his own white cishet Christian male voters—are authentic and real. Everyone else, to Trump, is fake and inauthentic. … Trump can say that Jewish people who don’t vote for him, “hate their religion,” because as a white Christian fascist, he defines what Jewishness means. He can say Obama isn’t American, because as a white Christian fascist, he defines what America is. He can say Harris isn’t Black, because he is the fascist leader, and he defines what Blackness is. For that matter, he can lie about crowd size, about the weather, about his own actions and beliefs, because as the white fascist patriarch, he is the one authentic measure of truth. He is real. Nothing else is.

Serwer and Berlatsky were writing before Trump began smearing Algerian boxer Imane Khelif, both on Truth Social and at his Atlanta rally, referring to her as “a good male boxer” who “transitioned”, and pledging “I WILL KEEP MEN OUT OF WOMEN’S SPORTS.” Khelif is female from birth, and gender transitions are illegal in Algeria, but what does it matter? As the fascist leader, Trump defines what gender means.

In short, Trump was trying to stoke up the energy of his base by appealing to their sense of racial and gender grievance, promoting resentment that women and people of color are taking what is rightfully theirs, and arguing that they are doing it under the false flags of anti-racism and anti-sexism, because racism and sexism haven’t been a thing in decades and were never that big a deal to begin with.

The fact that he may have confused or angered anyone else, like me or you, is just a side effect.

I don’t have any special insight into the White racist community, so I’m not sure how well this is working. I can only trust that White racists are not a majority of the electorate, and hope that the rest of us show up in large enough numbers to outvote them.

By weeklysift | Tagged , | Comments (11)

Couches, cat ladies, and J. D. Vance

July 29, 2024 – 9:22 am

Trump’s VP pick has had an inauspicious debut.

Let me say this right up front: In no part of Hillbilly Elegy did J. D. Vance confess to having sex with a couch. In fact, we have no reliable reports of Vance sexually abusing any piece of furniture. Ever. He has not been banned from Ikea. The clip of him singing a love song to a couch is fake; the lip movements don’t even match the audio. If you search on the #CouchHumper hashtag, all you’ll get is misinformation. Are we clear on that?

But somehow this week the mythical Vance/couch tryst became one of the funniest examples in the history of framing. It started on social media, with a tweet providing exact page numbers for the confessional excerpt. If you didn’t happen to have a copy of Hillbilly Elegy handy, how could you check? Surely nobody would just make something like that up, would they? [1]

Largely because of that specific referencing, the rumor began to take off — I even believed it myself at first — to the point that it needed to be debunked. So AP published a fact-check (since removed) which it headlined: “No, JD Vance did not have sex with a couch.”

As any fan of George Lakoff knows, the first law of debunking misinformation is: Don’t put the lie in the headline. The reasoning is simple: Directly negating a frame invokes the frame. In Lakoff’s famous example, “Don’t think of an elephant” invariably makes you think of an elephant. Until this week, the most famous real-life violation of Lakoff’s rule was Richard Nixon’s immortal denial “I’m not a crook.” If you had never before considered whether Nixon might be a crook, you did then.

Well, lots of people who don’t delve deeply into social media, and so hadn’t heard the rumor at all, do read AP headlines. And they immediately thought: J. D. Vance? A couch? What’s up with that? And then, even though they didn’t have time to read the article, they wondered what exactly was wrong about the rumor. Did Vance just flirt with the couch? Did the couch misinterpret his intentions? Maybe he was napping on the couch and had a wet dream. That’s embarrassing, but it’s innocent; it could happen to any young man.

A few people who made the early couch memes may have believed the claim was true, but before long everybody knew it was invented. And yet the jokes just kept rolling in a tone of OK-it’s-false-but-I’m-having-too-much-fun. [2]

I am still looking for a social psychologist who can explain why this has been so enjoyable. But in the meantime I’ll take a stab at it. I think the message here is: “See? We can lie too.”

Democrats are sick to death of Trump and his minions pushing lies that they know are lies, like that the 2020 election was stolen, or Kamala isn’t a citizen, or Democrats support murdering babies after they’re born, or other countries have sent their prison population to the US, and hundreds of others. Mike Johnson is a lawyer, so he has to know that his Harris-will-have-trouble-getting-on-the-ballot claims are bogus, but he makes them anyway.

We’re sick to death of answering stuff like that with facts, only to watch the lie propagate in spite of the facts. So you want to lie? Fine. Our lie is funnier and more viral than yours.

I’ll be interested to see whether people start consciously using it that way, responding to right-wing BS with Vance-and-the-couch claims, and, when challenged, saying, “Oh, I thought you had started a lying contest.”

Another reason we’re all being so merciless with the couch jokes is that other stuff emerged this week: stuff Vance really did say that personally insulted millions of us, and left us feeling like “I dare you to say that to my face, you couch-humper.”

In one, he disparaged women who decide not to have children (like my wife) as

childless cat ladies who are miserable at their own lives and the choices that they’ve made and so they want to make the rest of the country miserable, too

In another, he proposed that people without children (like me) should have less voting power than parents, because we “don’t have as much of an investment in the future of this country”.

How does it make any sense that we’ve turned our country over to people who don’t really have a direct stake in it?

Wow. What a judgmental, clueless thing to say. J. D. Vance has never met me, but he’s sure that I don’t care about the future, that I couldn’t possibly care like he does, because my only connection to the future is through my sister’s kids and grandkids, the children of my close friends, the kids in my church community, the students I’ve taught, the coworkers I’ve mentored, and my membership in the human race. Kamala Harris is even a stepmother to her husband’s children, but she’s one of the childless cat ladies Vance called out by name. Apparently, step-parenting doesn’t count either.

Another childless person he called out by name was Pete Buttigieg, whose adopted twins are nearly three now. But at the time

Chasten and I had been through a fairly heartbreaking setback in our adoption journey. He couldn’t have known that, but maybe that’s why you shouldn’t be talking about other people’s children. [3]

In an interview Sunday with Jen Psaki, Pete offered a more abstract perspective on Vance’s attitude.

He seems to view everything in terms of the negative. … I think a lot of us who have had kids would certainly say that that experience opens you to a new way of thinking about the world. But he doesn’t talk about it in those terms. He talks about how anybody who doesn’t have kids is less than, that their perspectives have less value, which is a really strange take.

Precisely. If Vance wants to wax poetic about how parenthood has changed him for the better, I’m happy for him. But if he wants to project onto me the benighted mindset he had before becoming a father, or (based on that projection) assign me a correspondingly lesser role in the nation we share, I’ve got a problem with that.

And let’s be clear: Projection is the key concept here. Vance’s attack is actually a confession. He doesn’t care about the future beyond how it affects his own biological descendants. Caring about other people’s kids, or about your community more broadly, is so foreign to him that he can’t even imagine how people like me can do it.

Such a me-and-mine worldview perfectly explains his position on climate change. If he can leave his own children well fixed by selling out to fossil fuel companies, that sounds pretty good to him, even if it condemns everyone else’s kids to an apocalyptic hellscape.

His attempts to clean this up only doubled down.

I’ve got nothing against cats. I’ve got nothing against dogs. … People are focusing so much on the sarcasm and not on the substance of what I said, and the substance of what I said, Megyn, I’m sorry, it’s true.

But he wasn’t being “sarcastic”. He was being an asshole. He has ignorantly insulted me and millions of people like me, and when it was pointed out to him, he wouldn’t apologize. So the insult stands.

Do you want an asshole to be vice president of United States?

But OK, let’s put aside the insults and assholery and look at what Vance was proposing, which is — let’s face it — just a dumb unworkable idea: Children get votes, which their parents get to cast. So if Mom and Dad disagree — it is OK for a woman to disagree with her husband, isn’t it? — which one gets to cast the kids’ votes? If Mom and Dad separate with joint custody, where do the votes go? And think about those stereotypic welfare moms that Republicans love to scapegoat, the ones who keep having kids just to get more welfare. Do they get extra votes? If I’m an undocumented immigrant, but my “anchor baby” is an American citizen, can I cast her vote?

The whole idea is stupid. Clearly Vance just says stuff without thinking it through.

Minnesota Governor Tim Walz burnished his Harris-VP credentials by applying a term that has stuck: weird. If you want to say that Vance’s ideas are scary or stupid, I can’t argue with you. But the main thing they are is weird. Here’s an example of the far-out scenarios that hatch in Vance’s mind, and the kinds of things he justifies with these bizarre fantasies. [4]

Let’s say Roe v Wade is overruled. Ohio bans abortion … let’s say in 2024. And then every day, George Soros sends a 747 to Columbus to load up disproportionately Black women to get them to go have abortions in California. … And if that happens, do you need some federal response to prevent it from happening? … I’m pretty sympathetic to that actually.

Federal response like what exactly? Banning pregnant women from crossing state lines? Making women take pregnancy tests before getting on interstate flights? What? Suppose a pregnant Ohio State student flies home to California for Thanksgiving and miscarries while she’s there. How can she prove she didn’t get an abortion? What happens to her?

I’m sure Vance’s musings would sound perfectly normal in the Republic of Gilead. But not here. In America, they’re weird.

[1] Apparently, people have been making stuff like this up for a long time. In Fear and Loathing on the Campaign Trail, Hunter S. Thompson told this story about Lyndon Johnson.

The race was close and Johnson was getting worried.  Finally he told his campaign manager to start a massive rumor campaign about his opponent’s life-long habit of enjoying carnal knowledge of his own barnyard sows.

“Christ, we can’t get a way with calling him a pig-fucker,” the campaign manager protested.  “Nobody’s going to believe a thing like that.”

“I know,” Johnson replied.  “But let’s make the sonofabitch deny it.”

[2] Rep. Jack Kimble is often amusing, but he’s not a real congressman. California’s 54th district does not exist.

[3] Pete is being generous. Yes, Vance couldn’t have known at the time that Buttigieg and his husband were having trouble adopting. But he knows now, and hasn’t offered any kind of apology.

I haven’t found any direct statement of Vance’s views on same-sex marriage, or adoptions by same-sex couples, but he opposed the Respect for Marriage Act that would have codified marital rights for same-sex couples, and many of his “pro-family” statements use phrases that are also used by anti-gay hate groups. So it’s possible, even likely, that Vance not only thinks Pete should have second-class citizenship, but that he opposes any attempt by gays and lesbians to qualify for first-class citizenship by getting married and adopting children.

[4] Lots of Republican proposals are justified by similarly bizarre fantasies. We have to ban late-term abortions, for example, because of the possibility that some woman might carry a healthy fetus for nearly nine months, and then choose an abortion at the last minute on a whim. Who does that?

Or we need to ban trans athletes from high school and college sports, because women’s programs could be overrun by men pretending to be women. How many trans athletes do they think are out there? Are they dominating any sport? Is any women’s program in America being overrun by them? Can Republicans name even one trans athlete whose motivation is anything like what they’ve described?

By weeklysift | Tagged | Comments (21)

The Two Kinds of Unity

July 22, 2024 – 9:34 am

Unity can arise in two very different ways: when a group of equals recognize their common interests and purposes, or through dominance and submission. Guess which kind of unity Trump called for Thursday night.

Shortly after Donald Trump’s ear was barely grazed by a bullet, piece of shrapnel, or whatever it was, he announced that he was rewriting his convention speech to call for Unity.

It is a chance to bring the country together. I was given that chance.

The media dutifully reported this intention, imagining, as they so often do, that Trump was about to mature and become presidential. Friday morning, some headlines around the country echoed Trump’s call for unity, as if he had actually made one. Parker Malloy collected the evidence:

She commented:

The notion of a Trump “pivot” is as old as his political career. Since 2015, the media has repeatedly predicted — and prematurely celebrated — moments when Trump supposedly transformed into a more measured, presidential figure. These predictions have consistently proven to be mirages, disappearing as quickly as they formed.

When the mainstream media realized the speech wasn’t what they had predicted, they started interpreting it as two speeches at war with each other (which at least would explain why it was twice as long as a typical acceptance speech).

The “new” Donald Trump soothed and silenced the nation for 28 minutes last night. Then the old Trump returned and bellowed, barked and bored America for 64 minutes more.

This interpretation is misguided. Trump gave one speech, with a single theme: unity, but not the kind of unity politicians in a democratic republic usually call for.

Pundits misinterpret Trump when they refuse to recognize what he is: a sociopath. As such, Trump has no concept of what we usually mean by national unity: A broad consensus of citizens coming to recognize their common interests and purposes, and using that recognition to put aside their previous conflicts and mutual distrust.

The most obvious examples of unity in our history come after shocking disasters like Pearl Harbor or 9-11. Republicans did not instantly find love in their hearts for FDR, and Democrats similarly did not love W. But they recognized that all Americans faced a common threat and needed to move with a common purpose.

Admittedly, moments like that are rare, and the attempted assassination of Trump didn’t rise to that level. But nonetheless there are common purposes Trump could have invoked and built on.

Hardly anyone likes the level of hostility that currently exists in American politics. We’ve fallen a long way from that moment in the 2008 campaign when John McCain corrected a questioner who said she couldn’t trust Barack Obama because “he’s an Arab”.

“No ma’am,” McCain politely but firmly replied, “He’s a decent family man, a citizen, who I just happen to have disagreements with on fundamental issues. And that’s what this campaign is all about.”

We’re also past the moment that same year when then-Speaker Nancy Pelosi and former Speaker Newt Gingrich made an ad together about addressing climate change.

Nonetheless, there is still a lot to build common cause around. A substantial majority of Americans in each party want our children to get educated, and to be able to find productive places in a prosperous economy. We want our basic infrastructure — roads, electrical power, communications, etc. — to work flawlessly. We want clean water and breathable air. We want sick people to get care and old people to live their final years in dignity. We want to be safe from crime. We want to live in peace. We want our country to do well in international competition, and not to fall behind China (or anyone else) either economically or militarily. We want to help our fellow Americans when natural disasters strike. We want to be able to take pride in our country, and to believe that oppressed people around the world see us as a beacon of hope.

We often lose sight of these common intentions, but we shouldn’t. How to accomplish any of these goals leads to serious arguments — like whether the government or the market should take the lead — many of which are hard to resolve. So there would still be plenty of room in our politics for “disagreements on fundamental issues”. But there is a lot to build unity around, if we would choose to do so.

Donald Trump, however, doesn’t live in a world where that kind of unity is possible, or even makes sense. To a sociopath, all relationships are built around dominance and submission. In every interaction, somebody wins and somebody loses. Win/win is just not a thing.

This view runs far deeper than just his politics. The Art of Deal, for example, is about winning every negotiation, not about building mutually beneficial long-term relationships with clients, employees, or suppliers. He often refused to pay small contractors who worked on his casinos and clubs, or he bullied them into taking less than their contracts called for. (They will never deal with him again, but so what? He won.) The background for his recent fraud trial was that banks would no longer offer him competitive rates without special guarantees, which he verified through false documentation.

Or take a look at his cabinet picks from 2017: Mike Pence, Rex Tillerson, Jim Mattis, Steve Mnuchin, Jeff Sessions, Mike Pompeo, Ryan Zinke, Sonny Perdue, Wilbur Ross, Alexander Acosta, Tom Price, Ben Carson, Elain Chao, Betsy DeVos, Rick Perry, John Kelly, David Schulkin, Nikki Haley, Scott Pruitt, Mick Mulvaney, Robert Lighthizer, Linda McMahon, and Andrew Puzder. Forget about whether any of them will serve again should he be reelected; how many of them are even supporting him now? Why did he even need a new vice president?

Trump doesn’t do mutually beneficial relationships that build trust over time. He uses people until their usefulness is exhausted, then he discards them as “losers” or denies that he ever really knew them.

Similarly, NATO has never made sense to him, because it’s about countries banding together for mutual protection. In his mind, though, if we’re not taking advantage of them, they must be taking advantage of us. Many of the fantasy sir-stories he tells during his rallies are about him expressing dominance and other world leaders submitting. Here’s one in his convention speech:

For years and years when I first came in, they said President Obama tried to get [gang members we wanted to deport] to go back and [other countries] wouldn’t accept them. They’d put planes on the runway so you couldn’t land the plane. They’d close the roads so you couldn’t take the buses; they’d all have to turn back.

As soon as I said no more economic aid of any kind to any country that does that, they called back and they said, “Sir, it would be our great honor to take M.S. 13. We love them very much. We love them very much, sir. We’ll take them back.”

He reinterprets his greatest diplomatic blunder — tearing up the Obama agreement that would have kept Iran from getting nuclear weapons, then utterly failing to get the “better deal” he said was possible — as simply not having enough time for his attempted domination to take effect. (Because of course the country that was willing to lose hundreds of thousands of soldiers in its war with Iraq would crumble under his economic threats.)

I told China and other countries, “If you buy from Iran, we will not let you do any business in this country, and we will put tariffs on every product you do send in of 100 percent or more.” And they said to me, “Well, I think that’s about it.” They weren’t going to buy any oil. And they were ready to make a deal. Iran was going to make a deal with us.

And then we had that horrible, horrible result that we’ll never let happen again. The election result. We’re never going to let that happen again. They used Covid to cheat. We’re never going to let it happen again. And they took off all the sanctions, and they did everything possible for Iran and now Iran is very close to having a nuclear weapon, which would have never happened.

Because to Trump, that’s what relationship is all about: dominance and submission. If you’re not the predator, you’re the prey.

So it should have been immediately obvious what kind of national unity Trump would call for in his convention speech: If you’ve been resisting his dominance, it’s time for you to recognize that you’re beaten and submit.

The opening part of Trump’s speech, the 28 minutes Axios liked, sounded like common-purpose unity, if that’s what you were primed to hear.

I stand before you this evening with a message of confidence, strength and hope. Four months from now, we will have an incredible victory, and we will begin the four greatest years in the history of our country.

Together, we will launch a new era of safety, prosperity and freedom for citizens of every race, religion, color and creed.

The discord and division in our society must be healed. We must heal it quickly. As Americans, we are bound together by a single fate and a shared destiny. We rise together. Or we fall apart.

I am running to be president for all of America, not half of America, because there is no victory in winning for half of America.

But it is also consistent with the sociopathic unity of dominance and submission, as the second part of the speech made clear. He wasn’t reaching out to the other half of America, he was demanding its surrender.

And we must not criminalize dissent or demonize political disagreement, which is what’s been happening in our country lately, at a level that nobody has ever seen before. In that spirit, the Democrat party should immediately stop weaponizing the justice system and labeling their political opponent as an enemy of democracy. … If Democrats want to unify our country, they should drop these partisan witch hunts, which I’ve been going through for approximately eight years. And they should do that without delay and allow an election to proceed that is worthy of our people. We’re going to win it anyway.

He lamented what has been happening to his sons, who were fellow defendants in the fraud lawsuit that he lost (because a jury of ordinary Americans found that he and his sons committed fraud).

[Eric is] such a good young man. He went through a lot of trouble, and Don, last night, was incredible. They went through so much trouble. They got subpoenaed more than any people probably in the history of the United States. Every week they get another subpoena from the Democrats. Crazy Nancy Pelosi, the whole thing. Just boom, boom, boom.

They’ve got to stop that because they’re destroying our country. We have to work on making America great again, not on beating people. And we won. We beat them in all. We beat them on the impeachments. We beat them on the indictments. We beat them. But the time that you have to spend, the time that you have to spend. If they would devote that genius to helping our country, we’d have a much stronger and better country.

Got that? Everyone has to stop focusing on beating people, but I beat you. You don’t win; I win. So stop trying to make me obey laws or holding me accountable for my crimes. Submit. And then our country can move forward in unity.

If we do that, if we submit to Trump, he offers the vision that he can become powerful enough to dominate others on our behalf.

For too long, our nation has settled for too little. We settled for too little. We’ve given everything to other nations, to other people. You have been told to lower your expectations and to accept less for your families.

I am here tonight with the opposite message: Your expectations are not big enough. They’re not big enough. It is time to start expecting and demanding the best leadership in the world, leadership that is bold, dynamic, relentless and fearless. We can do that.

We are Americans. Ambition is our heritage. Greatness is our birthright.

But as long as our energies are spent fighting each other, our destiny will remain out of reach. And that’s not acceptable. We must instead take that energy and use it to realize our country’s true potential — and write our own thrilling chapter of the American story.

Trump closed by recalling past American glories.

Together, these patriots soldiered on and endured, and they prevailed. Because they had faith in each other, faith in their country, and above all, they had faith in their God.

Just like our ancestors, we must now come together, rise above past differences. Any disagreements have to be put aside, and go forward united as one people, one nation, pledging allegiance to one great, beautiful — I think it’s so beautiful — American flag.

But you will search this text in vain to find any indication that Trump himself is putting aside past differences. He’s still talking about “crazy Nancy Pelosi” and refusing to recognize any positive purpose (like mitigating climate change or trying to limit Covid deaths) that Biden might have been trying to achieve with his policies. And if you don’t share “faith in their God”, well, you just don’t count.

Even Sunday, after Biden withdrew from the race, Trump could not be gracious, and continued to lie about Biden and his record.

Crooked Joe Biden was not fit to run for President, and is certainly not fit to serve – And never was! He only attained the position of President by lies, Fake News, and not leaving his Basement. All those around him, including his Doctor and the Media, knew that he wasn’t capable of being President, and he wasn’t – And now, look what he’s done to our Country, with millions of people coming across our Border, totally unchecked and unvetted, many from prisons, mental institutions, and record numbers of terrorists. We will suffer greatly because of his presidency, but we will remedy the damage he has done very quickly.

So no, putting aside differences is not for him, it’s on me and on you. We just need to get in line and submit. Only then will America have the kind of unity Trump wants.

There is a word for this kind of unity, but not an English word: gleichschaltung. It’s an old German engineering term, for when you wire a bunch of electrical circuits together under a common master switch. It got applied to German politics in 1933, for reasons that you may recall from history books.

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Don’t Ignore the Republican Platform

July 15, 2024 – 11:35 am

Trump designed Project 2025 to be deniable. But the Republican platform isn’t deniable, and it’s bad enough.

Recently a lot of attention is being paid to Project 2025, which I warned you about last August. Project 2025 is a massive 900-page plan for the second Trump administration to hit the ground running next January, together with a database of loyal MAGA Republicans to staff it, and a process by which Trump acolytes can declare their fealty in hopes of landing a government job.

In essence, Project 2025 plays two familiar roles: The 900-page doorstop is a very detailed party platform, and the staffing database resembles what a presidential transition team might do — enlarged by Trump’s plan to “demolish the Deep State” by circumventing civil service requirements and appointing over 50K people, rather than the usual 4K or so.

What’s different about Project 2025 is that (by farming the effort out to a consortium of conservative groups headed by The Heritage Foundation), Trump has made the whole effort deniable. So if something in the 900 pages terrifies you, like that it will get rid of all the people in the Justice Department or the Pentagon who thwarted Trump’s post-2020-defeat coup, or that it reverses all the rules that protect LGBTQ people from discrimination, Trump can tell you not to worry. It’s not his platform or his transition team, it’s those guys.

I know nothing about Project 2025. I have no idea who is behind it. I disagree with some of the things they’re saying and some of the things they’re saying are absolutely ridiculous and abysmal. Anything they do, I wish them luck, but I have nothing to do with them.

Meanwhile, if you’re a MAGA cultist and you love the stuff in the 900 pages, Trump gives you a wink and a nod: Sure, that’s what we’re going to do, but I can’t say that just now.

In other words, Project 2025 is designed to be the mother of all dog whistles. Undecided voters are supposed to hear one thing, while MAGA cultists hear something else. If Trump has one superpower, it’s his ability to get people to believe that he’s telling them the truth and lying to the other guy.

Heritage Foundation President Kevin Roberts understands how the game is played:

No hard feelings from any of us at Project 2025 about the statement, because we understand Trump is the standard-bearer and he’s making a political and tactical decision here.

I’m not going to do an elaborate debunking of Trump’s Sargeant-Schultz-like I-know-nothing claim, because other people have done that. Suffice it to say that Trump knows a lot about Project 2025, he knows the people behind it, he has everything to do with them, and he agrees with what they’re saying, especially the parts that are ridiculous and abysmal.

But OK, Trump has his superpower and we’re being naive if we ignore it. Lots of people are going to believe his denials and accuse us of being afflicted with Trump Derangement Syndrome if we are skeptical. So let’s leave the details of Project 2025 for another day and consider the Trump plans that aren’t deniable: the draft platform for the Republican Party, whose national convention is meeting in Milwaukee at this very moment. I don’t think even Trump could get away with saying that he knows nothing about the Republican Party or who’s behind it, so let’s examine what’s in the party platform.

The platform is a 16-page document with a three-page preamble, ten pages of elaboration, and three pages of filler. The introduction culminates in “twenty promises that we will accomplish very quickly when we win the White House and Republican Majorities in the House and Senate”. The promises are in all-caps, as if they were Trump posts on Truth Social. Most of them probably were at some point.

Inflation. A number of the promises are deceptively simple, like #3 “End inflation and make America affordable again.” (I’ll spare you the all-caps.) I’m sure that when Democrats read this they immediately slapped their foreheads and said, “Why didn’t we think of that? We’ve been wondering what we should do about inflation. Why didn’t it occur to us to end it?”

So OK, how do Republicans plan to end inflation? That’s Chapter 1 of the elaboration.

We commit to unleashing American Energy, reining in wasteful spending, cutting excessive Regulations, securing our Borders, and restoring Peace through Strength. Together, we will restore Prosperity, ensure Economic Security, and build a brighter future for American Workers and their families. Our dedication to these Policies will make America stronger, more resilient, and more prosperous than ever before.

Most of this in code.

  • unleashing American Energy means (as the preamble says) “drill, baby, drill”. It’s not about unleashing American wind energy or solar energy. It means producing as much fossil fuel as we possibly can and ignoring what that means for climate change.
  • reining in wasteful spending is the same sleight-of-hand we’ve been seeing in Republican proposals since Reagan. It’s a fudge factor that makes their budget numbers work. In #14, they promise to “protect Social Security and Medicare with no cuts”. #12 will “strengthen and modernize our military, making it, without question, the strongest and most powerful in the world”. #2 envisions “the largest deportation operation in American history”, which sounds like it might be expensive to pull off. Ditto for #8, which will “build a great Iron Dome missile defense shield over our entire country” and #11 “rebuild out cities”. No specific examples of “wasteful spending” are given, and it’s hard to imagine cuts that could make up for all this increased spending. Spending rose in every budget of the first Trump administration (going from Obama’s last budget of just under $4 trillion to Trump’s last of $7.2 trillion), and would likely continue rising in a second. The platform also promises tax cuts (#6), so deficits should go up substantially, assuming Republicans haven’t ended arithmetic too.
  • cutting excessive regulations means two things: In general, abandoning efforts to protect Americans from whatever rapacious corporations may decide to do, and more specifically, eliminating rules aimed at fighting climate change by cutting fossil fuel use.
  • securing our borders appeals to the misperception (widespread among the MAGA base) that undocumented immigrants cost our government much more than they actually do. Trump’s plans to secure the border are an expense, not a savings.
  • restoring Peace through Strength means letting Russia take Ukraine, ending the “wasteful spending” of supporting Ukrainian sovereignty.

And then there’s stuff that would drastically increase prices, like tariffs.

Republicans will support baseline Tariffs on Foreign- made goods, pass the Trump Reciprocal Trade Act, and respond to unfair Trading practices. As Tariffs on Foreign Producers go up, Taxes on American Workers, Families, and Businesses can come down.

Trump has long pushed the bizarre idea that foreigners pay our tariffs. In fact, importers pay tariffs, which they pass on to their customers as higher prices. Do you buy anything made in another country? It’s price will go up 10%. To the extent that the government relies on tariffs rather than income taxes, the tax burden shifts from rich people to ordinary consumers.

How will this plan end inflation? It won’t. Gas and cars might be a bit cheaper, at great cost to future generations. Corporate costs might go down, but Americans across-the-board would be less safe from pollution and dangerous products. (And would those lower corporate costs mean lower prices, or just larger profits?) Government spending and deficits would continue to increase, unless Republicans got clever with the “no cuts” promise on Social Security and Medicare. (They might decide that ending cost-of-living increases in Social Security isn’t a “cut”, or that freezing overall Medicare spending isn’t a “cut”, even though it would mean less care and higher costs for individuals. I know I wasn’t going to mention Project 2025, but it wants to raise the retirement age, which wouldn’t “cut benefits” for anybody who still received benefits. But the platform explicitly promises “no changes to the retirement age”, which you should totally believe because Trump is lying to the other guy, not you.)

Climate and the environment. The word “climate” does not appear in the platform, because an underlying principle of the document is that climate change is not a problem and nothing needs to be done about it. But refusing to combat climate change has a strong implied presence in the document.

The glorification of fossil fuels is everywhere.

Under President Trump, the U.S. became the Number One Producer of Oil and Natural Gas in the World — and we will soon be again by lifting restrictions on American Energy Production and terminating the Socialist Green New Deal.

Guess what? The US is still the world’s largest producer under Biden, and the Green New Deal never passed Congress. But carry on.

Republicans will increase Energy Production across the board, streamline permitting, and end market-distorting restrictions on Oil, Natural Gas, and Coal. The Republican Party will once again make America Energy Independent, and then Energy Dominant, lowering Energy prices even below the record lows achieved during President Trump’s first term.

Want to drill for oil in some environmentally sensitive area? No problem! And did I mention that the US is already energy independent, in that we’re a net exporter of oil and gas? And if you remember those low gas prices during the Trump administration, you might also remember that they happened during the Covid lockdown, when nobody was driving. And “market-distorting restrictions” means subsidizing sustainable fuels.

I didn’t mention one of the Republicans’ ideas for lowering housing prices:

open limited portions of Federal Lands to allow for new home construction

Look around your neighborhood and see if you can spot any federal lands you’d like to build on. None? But mining companies have their eyes on lots of federal lands.

Republicans will revive the U.S. Auto Industry by reversing harmful Regulations, canceling Biden’s Electric Vehicle and other Mandates, and preventing the importation of Chinese vehicles.

Those “harmful regulations” are things like CAFE standards to increase gas mileage. And of course Republicans don’t want you driving an EV, which Exxon doesn’t profit from. Cheap Chinese EVs should be a genuine debate, because while importing them would cost American jobs in the auto industry, it would also speed the transition away from fossil fuels. But it isn’t an issue in this campaign, because Biden also wants to keep them out.

Social Security and Medicare. We’ve already talked about how a Republican administration might get around its promises not to cut these programs. But something nobody talks about is how undocumented immigrants prop them up: Many immigrants work under fake SSNs, which means that they pay taxes but will never collect benefits. Legal immigrants tend to be much younger than the general population, so they pay taxes now but won’t collect benefits for many years. So Trump’s deportation plan will harm all our pension funds. But the platform makes it sound like money flows in the opposite direction.

Republicans will protect Medicare’s finances from being financially crushed by the Democrat plan to add tens of millions of new illegal immigrants to the rolls of Medicare.

I have no idea what plan they’re talking about, and I doubt they do either. Another bit of cluelessness is

corrupt politicians have robbed Social Security to fund their pet projects

I blame both parties for this bit of rhetoric, which goes back to Al Gore’s “lockbox” promise. The federal government has been running deficits, and the federal trust funds have been investing their money in government bonds, as many private pension plans do. Unless the US reneges on its debt (something Trump has hinted at from time to time), nobody is “robbing” Social Security.

Culture wars and education. The platform promises to end “political meddling” in our schools and “restore Parental Rights”, but we can see what this really means by looking at Ron DeSantis’ Florida. Florida education is full political meddling, including a law listing ideas that can’t be taught in Florida schools. And “Parental Rights” means rights for conservative Christian parents, which come at the expense of the rest of us.

So if you want your child to learn real American history rather than rah-rah propaganda, you don’t have that right. If you want a library stocked with books from a wide range of views, including books that help non-White or LGBTQ kids make sense of what they’re experiencing, tough luck. Moms For Liberty said no, and they have the final word.

The platform also calls for ending tenure for teachers and “allowing various publicly supported Educational models”, which means using public money to support conservative Christian schools.

Republicans will support overhauling standards on school discipline, advocate for immediate suspension of violent students, and support hardening schools to help keep violence away from our places of learning.

“Hardening schools” is a euphemism for making them more like prisons. Republicans refuse to do anything about our gun problem, so instead we’ll turn our schools into armed camps. (And of course no armed teacher or school guard will ever flip out and start killing students.)

Republicans will ensure children are taught fundamentals like Reading, History, Science, and Math, not Leftwing propaganda. We will defund schools that engage in inappropriate political indoctrination of our children using Federal Taxpayer Dollars.

“Leftwing propaganda” and “inappropriate political indoctrination” means recognizing that racism is still a problem in America, or that families take many different forms these days.

Republicans will champion the First Amendment Right to Pray and Read the Bible in school, and stand up to those who violate the Religious Freedoms of American students.

Conservative Christian teachers will be allowed to indoctrinate their students, but non-Christian teachers won’t have similar rights. Teachers who use the Bible to teach critical reasoning skills rather than Christian dogma will find themselves in deep trouble.

We are going to close the Department of Education in Washington, D.C. and send it back to the States, where it belongs, and let the States run our educational system as it should be run.

But of course they’re also going to cut federal spending on “Leftwing propaganda”, no matter what a liberal state might want its kids to learn. States rights are for red states, not blue states.

Our Great Teachers, who are so important to the future wellbeing of our Country, will be cherished and protected by the Republican Party

But we’re also getting rid of tenure.

All sorts of phrases in the platform advocate returning to the Dead White Guys tradition in education: “Western Civilization”, “Classic Liberal Arts Education”, and so on.

Immigration. In several places, the platform frames desperate families arriving at our borders as an “invasion”, which is to be met with force and fortification.

We will complete the Border Wall, shift massive portions of Federal Law Enforcement to Immigration Enforcement, and use advanced technology to monitor and secure the Border. We will use all resources needed to stop the Invasion— including moving thousands of Troops currently stationed overseas to our own Southern Border.

Nonviolent solutions — like funding more immigration courts and judges, so that people who arrive here with legitimate asylum claims under our laws and treaty obligations can have their cases handled promptly and won’t have to wait around here or elsewhere — are not mentioned. That was a big piece of the bipartisan immigration bill Trump had his allies in Congress torpedo a few months ago.

The platform also promotes the myth of “Migrant Crime”, as if crimes by migrants were somehow different or more virulent than crimes by American citizens. They aren’t.

And then there’s “the largest deportation program in American history” and “sending Illegal Aliens back home”. That’s millions of people working millions of jobs. Restaurant workers, crop pickers, teachers, nurses, programmers, and probably people you know whose paperwork you never thought about. Your mom or grandpa might have to go to a nursing home because home health aides will suddenly be in short supply. You or your spouse might have to quit working, because child care will be hard to find.

And how do you do an operation of this size without making its processes automatic and inflexible? Where do the millions of people go? To detention camps while we find countries to accept them? How do we keep those camps from turning into hellholes, staffed by people who get off on having power over helpless human beings?

But that’s one thing the platform doesn’t say.

By weeklysift | Tagged | Comments (6)

Just Don’t Do It

July 15, 2024 – 9:06 am

I have violent fantasies and probably you do too.
But they need to stay in our heads.

The Trump shooting has led to Joe Biden and all the country’s other responsible leaders saying the things that responsible leaders always say: Violence has no place in our politics, and so on. That’s great; I completely agree.

But one thing needs to be said that I’m not seeing anywhere: I believe that just about everybody, at one time or another, fantasizes about doing violence to someone who symbolizes absolute evil to them. I know I do, and I try not to feel guilty about such fantasies. As long as they stay in our heads, they’re relatively harmless indulgences.

The problem comes when you start to think seriously about bringing those fantasies into reality. Where would I do it? What supplies would I need and where would I get them? Do I need an escape plan, or am I going out in a blaze of glory? Stuff like that.

If you ever find your thoughts drifting in those directions, I want to remind you of something: Violence seldom turns out the way you picture it, and History has a way of rolling right on even after you remove someone who seemed central to it. Killing Caesar didn’t stop the decline of the Roman Republic or delay the onset of Empire. Killing Lincoln didn’t improve the lot of the post-war Confederate states. I doubt killing Trump would stop MAGA either.

This individual or that one may (from some point of view at some point in History) personify the evil of that era. But the individual didn’t create all that evil. He or she simply channeled and focused it. If that individual dies, those forces will just find a new vessel, and History will keep rolling.

Trump didn’t conjure MAGA out of the void the way God created light in Genesis. He pulled together forces of resentment, entitlement, and bigotry that have been rattling around in American history for decades or even centuries. (Ask Rick Perlstein or Rachel Maddow.) They won’t go away just because something happens to Trump.

So if you ever find your violent fantasies starting to run away with you … I get it. I sympathize. Everybody wants to be the hero. Everybody longs to perform that one great feat that saves the World.

But don’t. Just don’t.

It won’t work. History doesn’t offer those kinds of short cuts. If the World is going to be saved, it will have to save itself through some much longer and more complicated process. Try to find a place for yourself in that process. Maybe a humble one, like most of the rest of us have.

By weeklysift | Tagged , | Comments (19)

The Biden Situation

July 8, 2024 – 11:40 am

Last week, I covered the Biden debate fiasco and discussed what the next steps should be. The gist of what I said was that as an aging person myself (67) and having watched a number of other people age, what I saw in Biden — stumbling over words, not remembering names, and getting unfocused when he’s sick or tired — did not necessarily bother me all that much. Those symptoms seemed (to me, at least) unrelated to dementia or more worrisome problems of aging.

But other people, I pointed out, are in a position to see much more, and we should pay attention to what they have to say. As of last week, they weren’t saying much, and those who were talking were standing by Biden.

This week, though, some of the reports I wasn’t seeing last week started to come in. Some elected Democrats — though none of the heavyweights (Jeffries, Schumer, Pelosi, Obama …) — called on Biden to withdraw from the race. And reports from insiders started to leak, saying that the symptoms we saw during the debate have happened often in the past. (Though they’re not reporting anything worse than we saw in the debate, and they’re not telling me what I really want to know: When Biden loses focus, how long does it take him to snap back? Does a five-minute break and a cup of coffee do the trick, or is he done for the day?)

Also, polls have come in measuring the post-debate slippage: Biden has gone from more-or-less even to about 3 points behind in the polling averages (though individual polls show better or worse results). Also, where early polls had shown other Democrats running far behind Trump, more recent ones show them in more-or-less the same position as Biden: behind, but close. Michelle Obama actually clobbers Trump 50%-39%, but she has shown no interest in running. (It’s common for candidates to look good when they show no interest, only to lose support when they eventually run.) Kamala Harris trails by only 1%, belying the claim that she can’t win. Other Democrats trail by 3-6%.

Friday, Biden did something critics were insisting he needed to do: Sit down for a one-on-one interview with an independent journalist. He talked to ABC’s George Stephanopoulos for 22 minutes, an interview that I found frustrating to watch because it told me so little. Basically, Biden was the guy we elected in 2020: He occasionally had to hunt for the words he wanted, and sometimes he started one sentence and finished another (something I’ve been known to do), but nothing seemed fundamentally wrong with his thinking processes.

But 22 minutes isn’t that impressive, and I was disappointed in Stephanopoulos. Yes, the point of the interview was to test Biden’s sharpness. But couldn’t that purpose have been better accomplished, and the public better served, by asking him difficult questions about inflation, immigration, climate change, and so on? Instead, Stephanopoulos spent 22 minutes asking different versions of the same question: What would have to happen for you to quit the race?

No one should expect any politician to answer that question forthrightly. Quitting a political campaign is like asking for a divorce: You don’t talk about it until you’re ready to do it. In every election cycle, primary candidates swear they’re “in it to win it” right up until the moment they tell their staffs to go home. If Biden were to admit he was thinking about quitting, that would freeze his campaign, stop donors in their tracks, and start a chain reaction that would inevitably lead to him leaving the race. If he’s not ready to do it, he shouldn’t talk about it. No politician would.

Weirdly, commentators seemed not to understand this basic fact of politics, so a common response was that Biden is “in denial” about his situation.

For what it’s worth: CNN offered Trump a similar interview, and he refused. Trump only does interviews on friendly venues like Fox News or Newsmax, and often those are edited before the public sees them. And although Trump complained constantly about how his Manhattan trial was keeping him off the campaign trail, he isn’t actually campaigning that hard now that he can. His schedule for this week shows only two events, one tomorrow and one Saturday. In short, far from showing the youthful vigor Biden is said to lack, Trump has a less rigorous campaign schedule than Biden does — and Biden has a day job.

On the question of whether Biden should be the candidate, I’m less certain than I was last week. I continue to think switching candidates is a messier process than many commentators — I’m looking at you, Ezra Klein — imagine. Switching to anybody but Harris would be suicidal if Harris wasn’t all-in on the plan. And why should she be? Josh Marshall raises an important point in that regard: Who are the convention delegates who would be making that decision, and what small-d democratic legitimacy do they have?

[T]his process [where Harris is skipped over] simply has no legitimacy. And what angers me about these columnists is just the lack of humility. What are they talking about? On what basis and with what legitimacy or authority are they coming up with this fantasy process? We’re way, way off the rails of democratic legitimacy here. In a case like this it behooves us, both politically and far more substantively, to search for sources of legitimacy where we can and make our choices accordingly. And the obvious and clear ones all point to Kamala Harris. The American people chose her as Biden’s replacement in 2020. And while she wasn’t technically nominated for VP during this year’s primary process, in effect she was since Democrats chose Biden again fully knowing she was part of the package. Her name is literally in the name of the campaign.

Finally, it’s hard to discuss what Biden and his party should do next without acknowledging the overwhelming media stampede trying to push him out of the race. I don’t know where this is coming from, but I can’t remember anything quite like it. Monday, the Supreme Court’s decision on presidential immunity — which (as I covered in the previous post) isn’t quite the End of the Republic by itself, but could be a significant step in that direction — barely got air time because speculation about Biden crowded it out. Tuesday, USA Today published a topsy-turvy article that framed the immunity decision as a distraction from Biden’s troubles.

So here’s where I am at the current moment, understanding that new information keeps coming in: I don’t yet see anything in Biden that would keep him from continuing to do the good job he’s been doing these last several years. Going forward, he may have to work less and rest more, but I suspect that even then he would be working far harder than Trump ever did when he was president.

Politically, the question is closer: Biden has something to prove now, and he may not be a skilled enough politician to prove it. At a minimum, he needs more exposure like the Stephanopoulos interview, and he needs to go without any public senior moments, even minor ones, for the rest of the campaign. Can he do that? I’m not sure.

I’m particularly unsure he can prove what he needs to prove in the face of intense opposition from the likes the the NYT, CNN, and other mainstream media outlets. Maybe Obama had the skills to turn something like this around, or maybe Bill Clinton in his prime. But Biden has never been in that class.

No one should minimize the risks in either direction.

I often hear the suggestion that if Biden would just do X, that would put the controversy to bed. So why doesn’t he? Isn’t he just admitting he can’t? (A few days before the Stephanopoulos interview, X was “sit down for a one-on-one interview”. During it, X was “undergo an independent medical evaluation that included neurological and cognitive tests and release the results to the American people.”) But when has such a strategy ever worked? Does anyone ever do X and get the response, “Thank you. We can move on now.”? I have never seen it. Doing X just leads to an explanation of why X wasn’t good enough, followed by a demand that you do Y.

Similarly, the Democratic Party is now hearing that we can move on to talk about the substantive issues of this campaign (democracy vs. authoritarianism, climate change, abortion, Gaza, Ukraine, competition with China, immigration, all the ways Trump will abuse the Supreme Court’s newly invented presidential immunity …) once we do X, namely, replace Biden as our candidate.

Is that true? I doubt it. So does Michelangelo Signorile:

Don’t fall for trap. If Democrats listen to the New York Times and try to replace Biden, NYT will have a new narrative: Democrats in chaos. And they will then have 347 stories a week about whoever is the candidate, all focused on how inexperienced and unprepared that person is.

David Roberts is even more blunt:

So, say Biden stepped aside in favor of Harris tomorrow. How long until the vapid gossips we call political reporters find something wrong with her, some alleged flaw they just have to write 192 stories about? How long until the hopped-up mediocrities we call pundits find some “counter-intuitive” reason that the new Dem ticket is flawed after all? How long until the irredentist left gets over the temporary thrill of its new Harris memes & remembers that she’s a cop & turns on her? How long before the ambient racism & misogyny in the US lead center-leftists to conclude that, sure, they’d support a black woman, just not *this* black woman? In other words: how long before everyone reverts to their comfortable, familiar identity & narratives? About 30 f’ing seconds, is my guess.

Is that take too pessimistic, too cynical? We may soon find out.

By weeklysift | Tagged , , | Comments (29)

The Immunity Decision: End of the Republic or No Big Deal?

July 8, 2024 – 8:38 am

Should we “fear for our democracy”, or is that reaction
“wholly disproportionate to what the Court actually does”?

In their dissents in the Trump immunity case, Justice Sonya Sotomayor explicitly expresses “fear for our democracy” and Justice Ketanji Brown Jackson warns that “the seeds of absolute power for Presidents have been planted”. But in his majority opinion, Chief Justice John Roberts dismisses such concerns:

As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today

So who is right? In granting Donald Trump nearly all the immunity he asked for, did the Court “reshape the institution of the Presidency” and “make a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law”, as Sotomayor claims? Or did it simply make explicit principles that since the Founding have been implicit in the separation of powers and in Article II’s concise “The executive Power shall be vested in a President of the United States of America”?

I won’t leave you in suspense: Sotomayor and Jackson are right. Roberts and the conservative majority have embedded a time bomb in the Constitution. That bomb could sit peacefully for decades until it is disarmed by some future Court, or it could go off as soon as next January.

What is this case about? Trump v United States arises from the indictment being prosecuted against Donald Trump (now a private citizen) in regard to his attempt to hang onto power by fraud and force after being defeated in the 2020 presidential election. While it is often referred to as “the January 6 case”, the indictment presents the January 6 riot not as a one-day event, but in the context of Trump’s months-long attempt to delegitimize the election that he lost and monkeywrench the usual constitutional and procedural processes that lead to the peaceful transfer of power.

The first steps of that effort were lawful, as Trump and his allies filed many dozens of lawsuits to challenge the election results in various states. These suits were routinely swatted down by courts that demanded evidence commensurate with Trump’s outlandish claims of fraud and procedural malfeasance, as well as his calls for unprecedented responses to those claims. He had no such evidence to present, and no further evidence has emerged in the subsequent years.

From there, Trump pressured state and local election officials to refuse to certify the election results. Up to a point, this too might have been lawful, as any candidate for office might suggest that officials look into election procedures he found suspicious. But much of it seemed to cross a line, as when Trump pressured Georgia Secretary of State Brad Raffensperger to “find” the votes he needed to win Georgia, and suggested Raffensperger could be prosecuted if he didn’t.

Trump then tried to leverage the authority of the Justice Department, by having DoJ write letters to legislatures in states that Trump lost, falsely claiming that an investigation had found fraud in their elections and suggesting that they hold special sessions to replace the Biden electors the voters had chosen. Justice Department officials refused, and threatened to quit en masse if Trump appointed a puppet attorney general to send such letters.

The next step was to recruit fake electors who would present fraudulent papers to Congress claiming that their votes for Trump were the official Electoral College votes for their state, allowing either Vice President Pence or Congress as a whole to declare either that Trump had won or that the result of the election was unclear, initiating constitutional chaos that he hoped to turn in his favor.

As part of his pressure campaign on Vice President Pence and Congress, Trump assembled a mob on January 6 and sent them to the Capitol. They proceeded to battle police (injuring more than 100), invade the Capitol, and send members of Congress (and the vice president) running for their lives. While this was happening, Trump watched the riot on television, refusing for hours either to ask the rioters to go home or to call out the national guard to restore order.

The legal process. After many delays, this case was nearly ready to go to trial when Trump’s lawyers claimed the indictment was unlawful because the former president had “absolute immunity” from prosecution for any actions taken during his term in office. Special Prosecutor Jack Smith, recognizing the likelihood that the question would go to the Supreme Court eventually and hoping to get the trial done before the fall election, asked the Court to take the case on an expedited basis in December. They refused.

The case then went through the ordinary process, with every judge involved rejecting Trump’s immunity claim. For example, a unanimous three-judge panel from the D.C. Circuit Court of Appeals declared on February 6:

For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

Most court-watchers and legal scholars found the appellate court ruling compelling, and many expected the Supreme Court to let it stand without a further hearing. When the Court did take up the case two weeks later, even court-watchers skeptical of the conservative majority’s motives saw the move simply as an attempt to aid Trump by delaying his trial past the election. [1] The Court’s scheduling — hearing arguments in April on the last day for hearing arguments and announcing the results on the last day of the term in July — seemed to confirm that suspicion. Right up to the decision’s announcement on July 1, few anticipated that the Court might find in Trump’s favor.

But they did.

What did the Court decide? As far back as the oral arguments in April, it was clear that the Court was going far afield from the case the appellate court had considered. Both the appellate court and the district court had focused the case in front of them: Trump’s claim of immunity for the acts alleged in the grand jury’s indictment. But the conservative justices showed little interest in the details of what happened on January 6 or the events that led up to that riot. Instead, they discussed abstract theories about executive power and elaborate hypothetical situations bearing no resemblance to the case at hand. [2]

So instead of a decision on whether the case against Trump should move forward, the conservative justices (excluding Barrett on at least one key point we’ll get to) laid out the following theoretical framework.

  • There is absolute immunity “with respect to the President’s exercise of his core constitutional powers”.
  • Presidents also have “at least presumptive immunity” for all other official acts “unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch’.” [The internal quote is from Nixon v Fitzgerald, which will come up a lot]
  • There is no immunity for “unofficial acts”, but prosecuting even these acts might be difficult, given that “courts may not inquire into the President’s motives”, and official acts cannot even be presented “as evidence in a criminal prosecution of a President”. [3]

The Trump case will be sent back to the District Court so that Judge Chutkan can apply the Court’s principles to the indictment.

How does Roberts justify this ruling? Not very well, and not at all consistently with the conservative majority’s “originalist” or “textualist” philosophy. As Sotomayor points out:

It seems history matters to this Court only when it is convenient.

Criminal immunity for the president is mentioned nowhere in the Constitution, in spite of the fact that (as Sotomayor points out) at the time several state constitutions gave immunity to their governors. So it’s unlikely this significant provision just slipped the Founders’ minds. It also appears nowhere in American history, and some historical events make no sense if criminal immunity is assumed. (Why, for example, did President Ford offer Richard Nixon a pardon, and why did he accept it?) In justifying his vote not to impeach Trump for January 6, Mitch McConnell said:

President Trump is still liable for everything he did while he was in office as an ordinary citizen, unless the statute of limitations is run, still liable for everything he did while he’s in office. He didn’t get away with anything yet — yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.

At the time, this point was not considered controversial. Trump’s own lawyer had told the Senate

If my colleagues on this side of the chamber actually think that President Trump committed a criminal offense, and let’s understand, a high crime is a felony, and a misdemeanor is a misdemeanor. The words haven’t changed that much over time. After he’s out of office, you go and arrest him.

Literally no one in America [4] believed in presidential criminal immunity until Trump raised the issue in his recent trials.

Roberts’ main argument is that if the the president is subject to future prosecution he might “be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive”. He projects this opinion into the minds of the Founders by quoting Alexander Hamilton and George Washington lauding “vigor” and “energy in the executive” as an advantage the new Constitution offered over the old Articles of Confederation. However, he gives us no quotation in which this “energy” is connected to immunity from prosecution (because there is none).

Sotomayor writes:

In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.

Lacking any support in the text of the Constitution or American history, Roberts rests most of his argument on the precedent Nixon v Fitzgerald, the source of that “bold and unhesitating action” quote, in which the court ruled that presidents were immune from civil litigation based on their official acts. Roberts repeatedly quotes Fitzgerald, largely ignoring one substantial difference between civil suits and criminal indictments: Anyone can file a lawsuit, which (until a trial is held) is a “mere allegation” (as Fitzgerald puts it and Roberts quotes). But a criminal indictment comes from an impartial grand jury, and deserves considerably more respect. It easy to imagine an ex-president being peppered with thousands of frivolous lawsuits. But if multiple grand juries are finding probable cause that a president committed crimes, that seems like a more serious situation.

Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. … Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect.

Again, the quote is from Fitzgerald, as if a grand jury indictment were simply an allegation.

The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.

But this problem never occurred before Trump, who both committed multiple crimes in office and now threatens to gin up sham prosecutions against President Biden, should he regain power. This is not a structural problem in American government; it’s the consequence of one man’s vices.

Sotomayor responds:

The majority seems to think that allowing former Presidents to escape accountability for breaking the law while disabling the current Executive from prosecuting such violations somehow respects the independence of the Executive. It does not. … [T]he majority believes that a President’s anxiety over prosecution overrides the public’s interest in accountability and negates the interests of the other branches in carrying out their constitutionally assigned functions. It is, in fact, the majority’s position that “boil[s] down to ignoring the Constitution’s separation of powers.”

Roberts three-part division. Roberts sketches out three zones: absolute immunity, presumptive immunity that can be overcome in certain situations, and no immunity. How much comfort should this system give us?

Not much, in my opinion. The need for a very small zone of protection appears in our history: Congress shouldn’t be able to make laws that restrict a president’s constitutional powers, and then try to prosecute him for violating those limits. This happened after the Civil War, when Congress made a law preventing President Andrew Johnson from firing cabinet officials, and then impeached him for breaking it. We can easily imagine Congress restricting the pardon power, say, by banning a president from pardoning members of his family or his administration. If he did so anyway, a subsequent administration might prosecute him. A court would be justified in tossing out such prosecutions before trial.

Sotomayor finds this kind of immunity irrelevant to the current case.

In this case, however, the question whether a former President enjoys a narrow immunity for the “exercise of his core constitutional powers,” has never been at issue, and for good reason: Trump was not criminally indicted for taking actions that the Constitution places in the unassailable core of Executive power. He was not charged, for example, with illegally wielding the Presidency’s pardon power or veto power or appointment power or even removal power. Instead, Trump was charged with a conspiracy to commit fraud to subvert the Presidential election

But Roberts’ zone of absolute immunity is much larger, and includes immunity for everything a president might do with his core powers. In the current case, this blows away the part of the indictment where Trump attempted to induce the Justice Department to send that false letter to the Georgia legislature.

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

Testimony about such discussions cannot even be used to inform a jury’s evaluation of a president’s unofficial actions.

If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated.

Again, the quote is from Fitzgerald, who was talking about civil lawsuits, not criminal charges. Again, this removal of any “scrutiny” is where Barrett diverged from Roberts. [3]

In the zone of presumptive immunity, the presumption is almost impossible to overcome. The prosecution must “pose no ‘dangers of intrusion on the authority and functions of the Executive Branch’.” Sotomayor notes that this is a much higher bar than any precedent can justify.

No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. Nor should that be the standard. Surely some intrusions on the Executive may be “justified by an overriding need to promote objectives within the constitutional authority of Congress.” [Nixon v. Administrator of General Services]. Other intrusions may be justified by the “primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” [United States v. Nixon] According to the majority, however, any incursion on Executive power is too much. When presumptive immunity is this conclusive, the majority’s indecision as to “whether [official-acts] immunity must be absolute” or whether, instead, “presumptive immunity is sufficient,” hardly matters.

And then we come to the “no immunity for unofficial acts zone”. If a president were to sexually assault a woman, maybe “grab her by the pussy”, say, that would presumably be an unofficial act for which he could be prosecuted.

But even here, we run into a president’s prerogative to use his official powers to obstruct justice. Recognizing his legal exposure, a president might order federal officers to destroy evidence, or even kill the woman before she could report the crime. He might then pardon the officers who carried out this order. These would be official acts, and so completely immune from prosecution.

Chilling doom. Justice Jackson’s dissent lays out how the fundamental structure of our government has changed: The executive and judicial branches gain power and Congress loses power. The very vagueness of the current decision empowers the Supreme Court to decide what presidential behavior is or isn’t permitted.

[T]he majority does not—and likely cannot—supply any useful or administrable definition of the scope of that “core.” For what it’s worth, the Constitution’s text is no help either; Article II does not contain a Core Powers Clause. So the actual metes and bounds of the “core” Presidential powers are really anyone’s guess. … [T]he Court today transfers from the political branches to itself the power to decide when the President can be held accountable. What is left in its wake is a greatly weakened Congress, which must stand idly by as the President disregards its criminal prohibitions and uses the powers of his office to push the envelope, while choosing to follow (or not) existing laws, as he sees fit. We also now have a greatly empowered Court, which can opt to allow Congress’s policy judgments criminalizing conduct to stand (or not) with respect to a former President, as a matter of its own prerogative.

She also hints at the likely partisan applications of this power.

Who will be responsible for drawing the crucial “ ‘line between [the President’s] personal and official affairs’ ”? To ask the question is to know the answer. A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which Presidents

And finally, Sotomayor takes the long view:

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

With other safeguards stripped away, the only protection the people have is their own vote, for a long as that is allowed and recognized. We must elect only presidents of high character who will not use the “loaded weapon” this Court has provided. Because once presidents are in power, little can be done to constrain them.

[1] Here’s Slate’s Dahlia Lithwick and Mark Joseph Stern on February 6:

The question is not whether a majority will ultimately agree with Trump (it won’t) but whether a majority will abet Trump’s efforts to run out the clock (it might).

[2] The faux humility of Roberts’ opinion sometimes reads like a bad joke.

the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. Because we need not decide that question today, we do not decide it.

In reality, the only thing the Court needed to decide is what should happen to the current indictment. Roberts’ whole opinion is a gratuitous exercise in judicial overreach. But no, after much theorizing about situations that may or may not ever occur, the specifics of this case are what get punted back to the lower courts for another yo-yo ride of decisions and appeals that can waste months or maybe years.

[3] This is where Justice Barrett leaves the conservative bloc, giving this example:

Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.

In other words, in this hypothetical bribery case, a jury could only hear about the bribe, and couldn’t be told what the president did to earn the bribe. Did he commute the last month of a dying man’s prison sentence, or did he give terrorists a nuclear weapon? Sorry, jurors, but we can’t tell you.

Barrett’s dissent has even more significance when you consider that both Thomas and Alito should have recused themselves from this case: Thomas because his wife could be a material witness, and Alito because the flags flying over his two houses raise legitimate concerns about his impartiality.

Do the math: Barrett should have been the swing vote in a 4-3 decision, and her dissent should have been the majority opinion.

[4] No one, perhaps, beyond Richard Nixon, who told David Frost “when the president does it … that means that it is not illegal.” Prior to the current case, this quote had widely been considered horrifying. Now, in most cases, it is the law.

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Down to the Wire

July 1, 2024 – 10:30 am

Having admitted (in the previous article) to being wrong about the debate, I might as well confess something else: I had expected the Supreme Court to release their Trump immunity decision Friday, the second-to-last day of this term.

Obviously, the Court’s Republican majority wants to delay as long as possible, in order to make sure that their party’s presidential candidate doesn’t stand trial again before the election. (Such political considerations used to be beneath the Supreme Court, but little is beneath the Roberts court.) Jack Smith asked them to take the case back in December, and his prosecution of Trump’s post-2020-election conspiracy has been frozen ever since. (The trial should be over by now.) The Court actually took it in February, they heard oral arguments in April, and subsequently they have been sitting on their hands for more than two months. We can all see what they’re (not) doing.

But the Court pretends to be oblivious to politics, so delaying every possible second would make the game a little too obvious, or so I thought. Announcing their decision on the last day, I anticipated, would be too big a fuck-you to the American people.

Well, guess what, American people? I gave them too much credit. Today is when they will announce their last rulings of the term, and the immunity decision still hasn’t come out as of 10:30 EDT.

What they did announce this week was serious enough. The Court always procrastinates to a certain extent, so every year there’s a flurry of decisions in the last few days. But this year is extreme, and I (like several other observers) wonder whether that’s intentional: When you release hundreds and hundreds of pages of legal reasoning in a few days, who has time to process it all and inform the voters about it before the news cycle moves on to something else?

Not me, apparently. This week I haven’t done the kind of detailed analysis I’ve done the last two weeks. So while I’ve dipped into the text of the decisions, I’ve also had to rely on other people’s summaries. Here’s what the Court did this week.

They legalized bribery. Not in so many words, of course, but that’s the upshot. As Amy Howe delicately put it on SCOTUSblog, they “limited the scope of anti-bribery laws”.

The gist of Brett Kavanaugh’s opinion (supported by the entire conservative faction: Gorsuch, Barrett, Thomas, Alito, and Roberts) is that bribery is when a public official is paid off before making a decision. If he’s paid off afterwards, it’s a gratuity, which is fine. So going forward, paying officials to do you a favor will only be a crime if you do it stupidly. (“No, no, I’m tipping you for last week’s decision. Tomorrow’s decision is completely up to you. Do whatever you think is best.”)

There’s been a lot of conservative rhetoric lately about Trump’s prosecution making the US a “third-world country”. But (until now) one important feature has separated the US from the bad-example kind of small countries: Public officials don’t ordinarily expect gratuities for doing their jobs. For example, I’ve never tipped the people who process my driver’s license renewals at the DMV. In some countries, I’d be expected to. Maybe that’s the direction Kavanaugh pictures us going.

Typically, in order to illustrate just how bad a decision is, you have to make up some hypothetical example that takes the decision’s logic to an extreme, like “What if a president had Seal Team 6 assassinate his rivals?” Here, though, you just have to recount the facts of the case at hand (which Kavanaugh doesn’t do, but Justice Jackson’s dissent does): While he was mayor of Portage, Indiana, James Snyder oversaw the purchase of new garbage trucks at a cost of $1.1 million.

Snyder put one of his friends, Randy Reeder, in charge of the bidding process, despite Reeder’s lack of experience in administering public bids. Evidence presented at Snyder’s trial showed that Reeder tailored bid specifications for two different city contracts to favor Great Lakes Peterbilt, a truck dealership owned by brothers Robert Buha and Stephen Buha. Evidence also showed that during the bidding process, Snyder was in contact with the Buha brothers, but no other bidders. … Reeder testified that he crafted some specifications, including delivery within 150 days, knowing they would favor Great Lakes Peterbilt. The board of works voted to award Great Lakes Peterbilt the contract. Evidence at trial showed that the city could have saved about $60,000 had it not prioritized expedited delivery. …

Shortly after the second contract was awarded, Snyder paid the Buha brothers a visit at their dealership. “I need money,” he said. He asked for $15,000; the dealership gave him $13,000. When federal investigators heard about the payment and came calling, Snyder told them the check was for information technology and health insurance consulting services that he had provided to the dealership. He gave different explanations for the money to Reeder and a different city employee.

Employees at Great Lakes Peterbilt testified that Snyder never performed any consulting work for the dealership. And during the federal investigation, no written agreements, work product, evidence of meetings, invoices, or other documentation was ever produced relating to any consulting work performed by Snyder. All of this confirmed testimony from the dealership’s controller, who had cut the check to Snyder: Snyder had instead been paid for an “inside track.”

Kavanaugh doesn’t dispute those facts, he just chooses not to mention them, while ruling that this kind of thing is OK now. Any other interpretation of the law, he says, would criminalize harmless gratuities, such as “gift cards, lunches, plaques, books, framed photos, or the like”. But Jackson points to the word “corruptly” in the law. In order to convict an official, a jury has to believe that the gratuity was large enough that its anticipation corrupted the official’s judgment. A plaque probably wouldn’t do that, but $13,000 goes a long way in Portage.

Kavanaugh also reasons that he is only monkey-wrenching the federal anti-corruption law, so Snyder might still be prosecuted under local law. This entirely misses the point of federal anti-corruption laws. Local corruption needs to be subject to federal oversight, because local processes may have been corrupted. That’s why Eliot Ness’ Untouchables could take down Al Capone when the Chicago police had failed.

I think the cartoonist is on to something: Presumably, it would now be OK if James Snyder wrote Brett Kavanaugh a check in appreciation of his fine judicial wisdom and his grasp of political reality in towns like Portage. (Did I mention that corrupt Clarence Thomas signed on to Kavanaugh’s opinion?) The best summary of the situation comes from Elie Mystal:

According to Brett Kavanaugh and the conservatives, it’s only bribery if it comes from the Bribérie region of France. Everything else is just sparkling corruption.

They allowed local governments to criminalize homelessness. Again, that’s not said in so many words, at least not until you get to Justice Sotomayor’s dissent. The case centers on a law in Grants Pass, Oregon that “prohibits activities such as camping on public property or parking overnight in the city’s parks”. Here’s why Sotomayor thinks that’s a problem:

Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment.

But Justice Gorsuch says the law doesn’t punish homelessness, because the law applies to everybody, not just the homeless.

Grants Pass’s public-camping ordinances do not criminalize status. The public-camping laws prohibit actions undertaken by any person, regardless of status. It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.

So if Elon Musk unrolled his Patagonia sleeping bag in a Grants Pass park, he’d be arrested too. What better illustration could there be of what Anatole France wrote in 1894?

In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.

In his concurrence, Clarence Thomas wants to go further than Gorsuch and overturn the precedent this case is based on. In other words, you should be able to criminalize someone’s status.

Gorsuch and Sotomayor paint very different pictures of what Grants Pass is trying to accomplish. Gorsuch mostly ignores Grants Pass itself, but talks about other cities with similar laws. (Notice the pattern: The conservative justices want to discuss anything other than the specific facts of the cases at hand.) Cities like San Francisco, Gorsuch claims, are making a good-faith attempt to help the homeless by getting them into shelters, using anti-camping laws as the stick in a carrot-and-stick approach. But Sotomayor sees Grants Pass hoping the homeless will leave and become some other town’s problem:

For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether. … The Grants Pass City Council held a public meeting in 2013 to “identify solutions to current vagrancy problems.” The council discussed the City’s previous efforts to banish homeless people by “buying the person a bus ticket to a specific destination,” or transporting them to a different jurisdiction and “leaving them there.”

That was unsuccessful, so the council discussed other ideas, including a “ ‘do not serve’ ” list or “a ‘most unwanted list’ made by taking pictures of the offenders . . . and then disseminating it to all the service agencies.” The council even contemplated denying basic services such as “food, clothing, bedding, hygiene, and those types of things.” … The council president summed up the goal succinctly: “[T]he point is to make it uncomfortable enough for [homeless people] in our city so they will want to move on down the road.”

They grabbed power away from federal agencies and claimed it for themselves. The Chevron doctrine is a legal principle that you will probably never run into in your personal life, but it has a bankshot effect on everything the government does. What’s at stake here is Congress’ ability to write open-ended laws whose details can be nailed down by the relevant federal agencies. Here’s an example I gave in January:

A typical example is the Clean Air Act. The CAA was first passed in 1963 and then overhauled in 1970. It established air quality standards (NAAQS) for a few well-known pollutants like carbon monoxide, sulfur dioxide, and lead, but then it defined a general category of “hazardous air pollutants” (HAPs) made up of other gases and particulates that “threaten human health and welfare”. It tasked the EPA with making and maintaining a list of HAPs and creating emission regulations for controlling them.

Hold that in your mind for a minute: In passing the CAA, Congress banned or controlled substances that the members of Congress had never even heard of. That’s how the regulatory system works.

If the CAA didn’t work that way, Congress would have to pass a new law every time some company created a new pollutant. Corporations move faster than Congress does, so our lives would be constantly in danger. (Plus, corporations can now give “gratuities” to congressmen who procrastinate on new laws. See above.)

In 1984, the Supreme Court decided the Chevron case, establishing the principal that if a law Congress wrote is vague about something, and if an agency’s interpretation of that vagueness is reasonable, then courts should defer to the agency’s interpretation. This deference makes sense for two reasons:

  • Courts can’t match the expertise assembled in federal agencies like the EPA or the FDA.
  • Federal agencies are overseen by presidents, who can be voted out of office. Courts are overseen by judges appointed for life.

The Chevron precedent has stood for forty years. Friday the Court tossed it out, without identifying any significant problem they were solving.

I didn’t manage to read the whole opinion, so I refer you to Joyce Vance.

Want to know if you can use the abortion drug mifepristone? Despite studies confirming the drug is safer than Viagra and Tylenol, that decision is up to Judge Matthew Kacsmaryk in Amarillo, Texas. If he decides the FDA was wrong to approve it, well then, he can deny women access to medication abortion. What happens if a company that builds airplanes objects to an agency decision that requires them to use, say, six bolts to attach an engine to a plane? They can go to court and make their case to a federal judge. And then, that judge—a lawyer, not an engineer—gets to decide how it will work. The arbitrary action the court expresses concern agencies might take is replaced by arbitrary action from far less qualified federal judges—possibly shopped for in the infamous one-judge-divisions like the one that gave us the mifepristone case. Do you feel less safe suddenly?

Set up a future showdown on abortion — after the election. So Idaho law only allows abortions that save a woman’s life, while a federal law (EMTALA — the Emergency Medical Treatment and Labor Act) mandates that hospitals receiving federal money (i.e. Medicare) stabilize any patient who shows up in their emergency rooms, including pregnant women who will suffer serious health consequences without an abortion.

But there’s a gray area, where a woman faces serious consequences but isn’t about to die. For women who fall into that gap, state law forbids what federal law mandates. A district court issued an injunction allowing the abortions, on the principle that federal law preempts state law. In January, the Supreme Court stayed that injunction, leaving the Idaho ban in place. Justice Kagan lays out the consequences of that move:

With that stay in effect, Idaho could enforce its abortion ban even when terminating a pregnancy was necessary to prevent grave harm to the woman. The on-the-ground impact was immediate. To ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in the prior year (when the injunction was in effect). … Those transfers measure the difference between the life-threatening conditions Idaho will allow hospitals to treat and the health-threatening conditions it will not, despite EMTALA’s command.

So this week the Court’s three liberals (Kagan, Sotomayor, and Jackson) got together with three conservatives (Roberts, Barrett, and Kavanaugh) to lift the stay and rule that the Court should not have gotten involved in this case yet.

That’s good as far as it goes; for the next few months, Idaho hospitals can stop airlifting women to Oregon or wherever. But the case is likely to come back next term. And even if it doesn’t, other states’ abortion laws also conflict with EMTALA.

So both Jackson and Alito want to know why the case can’t be decided now: The Court has heard all the arguments and knows everything it’s going to know when the case comes back. (Both think the proper decision is obvious, but they disagree about what it is.)

But it looks like Roberts, Barrett, and Kavanaugh have made a political move: Denying health care to women with serious pregnancy-related health problems is really unpopular, so pushing such a decision to the other side of the election helps Trump and other Republicans. “It is so ordered.”

Let some January 6 rioters off the hook. This case, Fischer, looks more complicated than the others, because even though the margin (6-3) is familiar, two justices have switched sides: Barrett joined the liberals and Jackson joined the conservatives.

This fell off my stack, so here’s Amy Howe’s summary:

The Supreme Court on Friday threw out the charges against a former Pennsylvania police officer who entered the U.S. Capitol during the Jan. 6, 2021, attacks. By a vote of 6-3, the justices ruled that the law that Joseph Fischer was charged with violating, which bars obstruction of an official proceeding, applies only to evidence tampering, such as destruction of records or documents, in official proceedings.

Friday’s ruling could affect charges against more than 300 other Jan. 6 defendants. The same law is also at the center of two of the four charges brought by Special Counsel Jack Smith against former President Donald Trump in Washington, D.C.

In other words, obstructing an official proceeding physically, by taking over the building, isn’t covered by this law.

I still don’t grasp the impact of this ruling. Several lawyers writing for MSNBC claim only a small number of January 6 defendants will be affected, and even the ones who are won’t go free, since they were convicted of other offenses as well. Many articles claim this interpretation will help Trump in his January 6 case, but the MSNBC article claims the opposite. It will take a while for me to sort this out.

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