Bickering

Yes. I know: Mr. Biden is old, is prone to gaffes, walks stiffly and had a disastrous debate with Mr. Trump. But this I also know: A presidential election is not an entertainment contest. It does not begin
or end with a 90-minute debate. Enough! Mr. Biden may not be the ideal candidate, but he will be the candidate and should be the candidate. And with an effective campaign that speaks to the needs of working families, he will not only defeat Mr. Trump but beat him badly. It’s time for Democrats to stop the bickering and nit-picking.

– Senator Bernie Sanders “Joe Biden for President“

This week’s featured posts are “Just Don’t Do It“, about the temptation to commit political violence, and “Don’t Ignore the Republican Platform“.

This week everybody was talking about the Trump shooting

I assume you already know that somebody shot at Trump during a rally in Butler, Pennsylvania on Saturday. They hit his ear, but did him no lasting damage. The shooter was killed and so was one other person; two were critically injured. The shooter has been identified, and everybody is wondering how he established a position so close to the stage. Officials aren’t speculating about his motives yet, so I won’t either. Sometimes assassins have coherent political agendas, but sometimes what they do only makes sense in their own inner worlds. Wait and see.

There is a fairly standard statement that any responsible leader needs to make in this situation, and Joe Biden made it:

I have been briefed on the shooting at Donald Trump’s rally in Pennsylvania. I’m grateful to hear that he’s safe and doing well. I’m praying for him and his family and for all those who were at the rally, as we await further information. Jill and I are grateful to the Secret Service for getting him to safety. There’s no place for this kind of violence in America. We must unite as one nation to condemn it.

This sentiment has been echoed by Kamala Harris, Pennsylvania Governor Josh Shapiro, and all sorts of other Democratic leaders — including Nancy Pelosi, who put aside the way Trump and Don Jr. responded when an attacker looking to take her hostage instead seriously injured her husband.

As one whose family has been the victim of political violence, I know firsthand that political violence of any kind has no place in our society. I thank God that former President Trump is safe. As we learn more details about this horrifying incident, let us pray that all those in attendance at the former President’s rally today are unharmed.

I’ve decided not to speculate about the shooter, his motives, or the possible effects on the presidential campaign. For the most part, I find myself agreeing with Jay Kuo, especially his expectation that Trump and his cult will “overplay their hand”. There’s already an attempt to cash in.

One possible result of the shooting is pressure on Democrats to tone down their attacks on Trump, which I would hate to see. I understand why President Biden said in his televised address:

The political rhetoric in this country has gotten very heated. It’s time to cool it down. And we all have a responsibility to do that.

But of course we know what will happen: Trump will continue his violent rhetoric, and the media will call Biden a hypocrite any time he criticizes Trump, no matter how justified that criticism is. Rick Perlstein posted:

A predictable effect of the Trump shooting that the Republicans have worked the refs by saying that this is what happens when you say their candidate means to end democracy. This plays to agenda-setting elite political journalists” cult of consensus–for their immediate response was to cluck about “politicized” responses, when the only politicized response were from Republicans (Democrats who went on the record also responded with consensus cliches).

Republicans thus are already succeeding in neutralizing the perceived legitimacy of Democrats continuing to make the true argument that the Republican candidate does mean to end democracy.

Nobody is addressing the elephant in the room, which is the temptation almost everybody feels to get violent, if only in fantasy. That’s what one featured post is about.

and Democrats were still arguing about Biden’s candidacy

Whatever you believed last week, this week proved you right. Biden kept a busy schedule, did a lot of the things his critics said he needed to do, and did them well but not perfectly. He hosted the NATO summit, held an hour-long press conference afterwards, and had enthusiastic rallies, including a fiery speech in Michigan in which he both went on offense against Trump and laid out his vision for a second term. Last night he addressed the nation about the Trump shooting. (This morning I can’t find any articles about what he said, so he must have done fine.)

If you support Biden, you noted that his press conference (on foreign policy, mostly) displayed a depth of understanding we have never seen in a Trump press conference. He not only answered the questions directly, with detail and nuance, but recognized the individual reporters and made reference to their fields of expertise. If you want him out of the race, you noted that he sometimes said one word when he meant another (“Vice President Trump“), spoke in his characteristic interrupting-himself style, and wasn’t particularly charismatic. It was all too little too late.

There are polls to support both points of view. 85% of Americans told an ABC poll that he’s too old to be president and 65% want him to step aside. But the same poll found showed Biden within 1% of Trump, and a Marist poll has Biden up by 2%, belying the often-repeated claim that Biden “can’t win”, or that he needs some drastically different strategy that he still hasn’t announced. 538’s prediction model (which includes “fundamental” factors I don’t fully understand in addition to polling) has Biden as a slight favorite.

Prominent Democrats continued to pick sides. AOC and Bernie Sanders are all in for Biden, but the number of congressional Democrats expressing doubts about his candidacy (or even outright calling for him to quit the race) is over a dozen now. Nancy Pelosi made an enigmatic statement about supporting whatever decision Biden makes, as if his announced resolve to stay in the race wasn’t his final answer.

Whichever side of this argument you’re on, you’re probably annoyed that Trump doesn’t get similar scrutiny. He never holds unscripted press conferences, only does interviews with friendly journalists who won’t fact-check him or ask difficult follow-ups, hasn’t released his medical records, and makes constant verbal blunders that the media calls no attention to. His bizarre rambling at public rallies is covered as Trump-being-Trump rather than medically significant symptoms.

If Trump did hold the kind of press conference Biden held Thursday, we know what we’d see, because we saw it so many times when he was president: Before long a reporter would ask him about something he didn’t know, and he would respond with a word salad containing numerous falsehoods. Any follow-up question would trigger Trump to call the reporter “a disgrace” working for “the fake news media”. Headlines and sound bytes from the conference would be all about Trump sparring with reporters rather than anything we learned from his answers.

More and more I feel like the media is covering itself rather than external events. Thursday, NYT analyst Peter Baker sort-of covered Biden’s NATO press conference, but never actually got to the content of Biden’s words, focusing instead on “every momentary flub, every verbal miscue” which “even if quickly corrected, now takes on outsize importance” because

The reality is that every public appearance between now and November will be scrutinized for evidence of infirmity.

Scrutinized by who? Well, by Peter Baker, for one. He’s not reporting on events, he’s announcing his intentions.

Similarly, I can’t count all the headlines that have described Biden as “defiant” when he says he won’t drop out of the race. But who is he defying, exactly? Mostly the very same pundits who now tag him as “defiant”.

The NYT (where else?) provides Daniel Schlozman a platform to explain how the Democratic Convention can do whatever it wants, independent of what happened in the primaries. He notes that the Biden delegates are “pledged, not bound“.

I realize that in the shadow of Project 2025, the long-term consequences of a bad precedent may seem small. But this kind of hair-splitting can’t help but devalue the primaries going forward. Progressives should consider how this could come back to bite them.

Imagine that in 2028 or 2032, AOC pulls off some early primary upsets, gets momentum, and by summer is headed to the convention with a majority of delegates pledged-but-not-bound to support her. Unfortunately, polls show her losing to some MAGA successor like J.D. Vance or Marjorie Taylor Greene, who has been making hay by tarring AOC with the “socialist” and “radical Marxist” labels. Meanwhile, some Democratic centrist who didn’t even run in the primaries — let’s say Kentucky Governor Andy Beshear, who the Republicans haven’t bothered to smear yet — has better numbers. The Biden 2024 precedent would open the possibility of pushing AOC out, in spite of what the primary voters wanted.

In my opinion, the dumbest idea around is to remove Biden via the 25th Amendment, as was proposed in The New Yorker by Jeannie Suk Gersen. Of course she’d prefer that Biden resign voluntarily — not just step down as nominee, but leave the presidency immediately.

But if Biden resists either an outright resignation or a break for the rest of his term under the Twenty-fifth Amendment, then it would be time to look to Section Four of the Amendment, which covers removing the President involuntarily. The Vice-President and a majority of the Cabinet can declare that Biden “is unable to discharge the powers and duties of his office,” whereupon Harris would become the acting President.

Aside from the objection that this will never happen, there are two very good reasons why it shouldn’t. First, the 25th Amendment isn’t about the president polling badly, or worries about his abilities four years from now. It requires the VP and the cabinet to affirm that right now Biden is “unable to discharge the duties of his office”. The example that everybody was talking about when the amendment was passed in 1967 was Woodrow Wilson’s stroke, after which his wife Edith secretly ran the country.

Is there any evidence that Biden is incapacitated in the way the Amendment envisions? We just saw Biden host a NATO summit, which seemed to all outward appearances to go well; the alliance is united and taking decisive action to aid Ukraine. Inflation was actually negative in June. The economy continues to create jobs, and even as the unemployment rate ticks upwards to 4.1%, it remains remarkably low for this point in the interest-rate cycle. The stock market is at an all-time high. Biden has successfully negotiated with an insane Republican majority in the House, and has managed to keep the government open without giving up the gains he made (bipartisan infrastructure, the anti-climate-change provisions of the Inflation Reduction Act …) when he had a Democratic House majority.

So independent of any policy disagreement (on issues like the border, say, if you’re conservative, or Gaza if you’re liberal) where’s the evidence that the US is being mismanaged because Biden is unable to discharge his duties? You and I were never appointed to any office by Biden and owe him nothing, but could you sign a declaration to Congress affirming that he’s incapable at this very moment? I couldn’t. Using the 25th Amendment this way would set a terrible precedent.

But there’s an even more serious problem, which is that once Harris is sworn in, there’s no VP. So if anything happens to Harris Mike Johnson becomes president.

I know, I know: the Amendment makes provision for that:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

So Harris can nominate Gavin Newsom or Beshear or some other White guy who could maintain the ticket’s racial and gender balance. But then we’re back to that insane Republican House majority, which would love to see Mike Johnson become president. Even if a handful of Republicans were willing to cross party lines, what if Johnson just adjourned the House without voting on the VP nomination?

So in the meantime, and probably until January, Johnson is next in line to be president. It would be an open invitation for some Christian nationalist nutjob to kill Harris. And if you think things like that don’t happen any more, take a look at Donald Trump’s ear.

and the Republican convention

It started yesterday in Milwaukee. I try to avoid speculation on this blog, but I’ve been expecting for months that this convention isn’t going to help them. Most of the country discounts what a freak show the MAGA Republican Party has become, and I expect the Marjorie Taylor Greenes and Matt Gaetzes to be out in such force that the country can’t ignore them. Most Americans haven’t watched a complete Trump speech in four years, and I expect them to be surprised.

See the point made above about Trump overplaying his post-assassination-attempt hand.

Pundits are settling on J. D. Vance as Trump’s VP, which fits the model I laid out some while ago. Trump’s VP has to have

  • no moral code, so that his conscience won’t keep him from doing whatever Trump asks (like Mike Pence’s did)
  • no independent following, so that he never outshines Trump (as Marjorie Taylor Greene might among the true MAGA faithful)
  • no prominence prior to Trump, so that he owes Trump everything (which eliminates Marco Rubio).

but I’ve been re-reading a book

Three of them, actually: Neal Stephenson’s Baroque Cycle, which is practically a time-trip to the late 1600s and early 1700s. Why is that worth mentioning here? Among many other things, Stephenson draws a strikingly simple line that divides Whigs from Tories: Tories believe that wealth comes from land, and Whigs believe that wealth comes from commerce.

Once you understand that, you see that generations later it was also the difference between two seminal American founders — Jefferson and Hamilton. In Jefferson’s ideal country, every family owned its own small farm. If you look at things that way, merchants and bankers — Hamilton’s people — seem like parasites.

The Hamilton/Jefferson argument is still with us, though you have to look at everything sideways to see it: If you think wealth comes from land (and the modern assets comparable to land, like brands, intellectual property or anything else you might charge rents or royalties for), government has no natural role in the economy. (It can’t create land, after all.) But if you think wealth comes from commerce, government can increase national wealth by building up the infrastructure of commerce: transportation systems, communication systems, education systems, and so on.

So if you dimly remember something in your high school US History class about Andrew Jackson fighting the Bank of the United States, that’s what it was about: Does a reliable banking system play a role in generating wealth, or does it just suck money away from the common people? And if you run into somebody who thinks government can only “redistribute” wealth that it has no role in producing, channeling it from “makers” to “takers”, you’re hearing the latest round in an argument that is more than 300 years old.

and you also might be interested in …

This morning, Judge Cannon dismissed the classified documents case against President Trump, the most open-and-shut of the cases against him. She wrote a 93-page opinion, which I haven’t looked at yet. Marcy Wheeler is reading it, and the Lawfare blog will have a podcast on it this afternoon.

Based on nothing but intuition, I think this is a good thing, because it opens the possibility that her decision will get reversed and the case can be assigned to a judge who isn’t in Trump’s pocket.

When the Supreme Court’s Loper decision came down two weeks ago, redefining the relationship between federal agencies and the courts, it was a little hard to describe what exactly it would mean in people’s lives. Fortunately, the Public Notice blog has an article listing the cases that are already being affected.

Taken together, it’s evident that any moves the administration makes to tilt the playing field even slightly in favor of workers are designed to fail once they reach a conservative federal judge. And thanks to right-wing judge shopping, plaintiffs are often able to get their case in front of an anti-regulation judge they know will be favorable to their challenges.

Friday, Maine Senator Susan Collins told reporters she won’t vote for Donald Trump.

Now imagine what a media storm there would be if Maine’s other senator, Angus King, announced that he wouldn’t vote for Biden. The event and the hypothetical event sound nearly the same, but clearly I’m missing something.

Rudy Giuliani’s attempt to use bankruptcy to get out of his $150 million defamation judgment isn’t going to work. Citing his lack of “financial transparency”, a New York judge dismissed his bankruptcy case. Next stop: asset seizure.

Scientists announced a breakthrough in research on pancreatic cancer, which has the lowest survival rate of any common cancer.

and let’s close with something visual

I love photo contests, and BigPicture has a great one. The photo below is called “Ghosts of the North”, and I was sure it must violate the rules by superimposing one image on another. But in fact it just has a long time exposure. The wolf was there long enough to register, but not long enough to look solid.

July 15, 2024 – 12:43 pm Categories: Weekly summaries | Comments (13)

Don’t Ignore the Republican Platform

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.

July 15, 2024 – 11:35 am Categories: Articles | Comments (6)

Tagged |

Just Don’t Do It

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.

July 15, 2024 – 9:06 am Categories: Articles | Comments (19)

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The Monday Morning Teaser

The news has a way of surprising you. The Republican Convention is starting today. Democrats are still arguing about whether Biden should leave the race. And yet, none of that is the top story: The Trump shooting is.

I’ve cobbled together something about that. I’m mostly skipping over, or farming out to other people, the standard things that have to be said: violence should not be part of American politics, and so on. Instead I’ll focus on something that I think needs to be said but nobody is saying: We almost all have these kinds of violent fantasies, but they need to stay in our heads. Independent of the morality of violence — which would-be assassins always manage to justify to themselves somehow — letting those fantasies out into the world almost never turns out the way you imagine it would. Taking one person out of the historical stream may seem like a great idea, but History has a way of rolling on without that person, and going where it was headed anyway.

That’s mostly written and should be out soon.

From there I go back to my original plans: a piece on the Republican platform. I know, Project 2025 is the juicier target, but Trump designed it to be deniable and is denying it. The platform isn’t deniable, and there’s plenty in there worth pointing out. That should be out around 11 EDT.

The Democrats’ arguments will be in the weekly summary, along with a bunch of other stuff. That should appear before 1.

July 15, 2024 – 8:46 am Categories: Morning tease | Comments (1)

Settled Understandings

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.

– Bruce Castor, lawyer defending Donald Trump against impeachment
Opening Statement, February 9, 2021

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.

– Justice Sonya Sotomayor,
dissent in Trump v United States

This week’s featured posts are “The Immunity Decision: End of the Republic or No Big Deal?” and “The Biden Situation“. In this morning’s teaser, I promised a third article about the media meltdown over Biden, but much of that material made it into the other Biden article and the rest is below.

I also want to compliment everybody involved in last week’s comments, particularly the discussion of Biden’s candidacy in response to “They Both Lost. What Now?” Commenters disagreed a lot, both with me and with each other, but by and large the discussion stayed civil. We’re all trying to save the Republic from autocracy; we just disagree on the best way to do it.

This week everybody should have been talking about the immunity decision

I cover this in the first featured post. Summary: It’s not the end of the Republic yet, but could be a significant step in that direction. The fact that the law will no longer constrain presidents just underlines the importance of electing presidents we can trust not to abuse their power.

but we actually talked constantly about Biden’s health and candidacy

The substance of what I think about Biden and his candidacy is in the second featured post: He is doing a good job and I still believe he can keep doing it. But settling down the media storm that has blown up requires political skills I don’t think he has. So I am open to choosing a new candidate, but skeptical that this move will solve the problem.

Late in that post, I discuss just how out of control the mainstream media has gotten. I was originally planning to write a whole article on that, but managed to cover most of what I wanted to say in the article mentioned above. Here’s the stuff that didn’t make it into that article:

One day this week, I fired up my iPad’s NYT app and noticed that the first six articles on the screen all had something to do with getting Biden out of the race. (Aaron Rupar noticed the same phenomenon.) All week, I kept checking CNN to see how they were covering the immunity decision, but I could never time it right: They were constantly talking about Biden’s fitness for office and whether his support was eroding. In one segment I watched, Host Jim Sciutto raised those issues with CNN commentator Van Jones, pro-Biden Republican Adam Kinzinger, and Democrats Howard Dean and Minnesota Governor Tim Walz. Whenever any of the four expressed support for Biden, Sciutto argued with them. No pro-Biden point could go unchallenged.

There’s an agenda here, and it’s not subtle.

This kind of sustained assault doesn’t happen to Republicans. Republican scandals and pseudo-scandals last for a day or two and then go away. Donald Trump is still a convicted felon who tried to stay in power through force and fraud after he lost the election. Clarence Thomas is still blatantly corrupt. How often do those facts come up? Republican officials can appear on CNN without being asked about them.

But if you raise those comparisons, big-media journalists will protest, “We can’t keep asking people the same questions over and over again.” The Biden example, however, proves that they can. They’re doing it right now. They just can’t do it to Republicans.

Here’s Jemele Hill‘s take:

The Republican Party in general is graded on a curve, but Trump especially. They’ve normalized his buffoonish bigotry. If you watched American news coverage, you would have no idea that Trump often threatens violence, promises to weaponize the DOJ against his “enemies,” is a felon, has been found liable for rape, tried to overturn an election, and incited an insurrection, among other things. If Biden is replaced, all of the coverage will be centered on the dysfunction of the Democratic Party.

AngryStaffer brings back some 2016 memories I had forgotten. We all remember how the NYT and other media blew Hillary’s emails into some big scandal. But do you remember when Hillary’s health was also supposed to be a big problem, one that should push her out of the race? Of course, it’s eight years later now and Hillary is doing fine.

In the featured post, I raise the possibility that replacing Biden will just move the attack to the new candidate. One reason to think so is the essay the NYT published on (of all days) July 4: “Why I Don’t Vote and Maybe You Shouldn’t Either“. If you click the link, you’ll see a toned down headline “Why I Won’t Vote”. There’s a reason for that. @capitolhunters did a deep dive into the author, one Matthew Walther, whose hairstyle and moustache looks more like Hitler than can be a coincidence.

After a big public outrage about an article denigrating voting on July 4, the Times shortened the title to “Why I Don’t Vote”. But then it turned out that records show Walther did vote in 2020 and 2022, so it got changed again to “Why I Won’t Vote”.

But anyway, what’s the editor’s motive in running this dishonest piece? Isn’t it to suppress the youth vote, which any Democrat (Biden or not) will need in November?

and the Fourth of July

When I talk to people these days, I often hear the fantasy of going into a Rip Van Winkle sleep and not waking up until after the election. This week in particular my social media feed included a lot of mournful posts revolving around the theme of this being the last real Fourth of July, the last honest holiday of American freedom and democracy.

I don’t necessarily believe that, but it’s a possibility, and I understand why people are taking it seriously. But let me pass on some wisdom I picked up many years ago when I thought my wife was going to die. (She didn’t.) If you’re afraid you’re about to lose something, appreciate it now.

So if we’re really seeing the last gasp of American democracy, don’t waste this time moping or wishing you were asleep. If you’re worried that these might be the last days of freedom, don’t miss them. Get out there and be free. Whatever “freedom” means to you personally, whatever activities you find meaningful that some authoritarian might try to stop you from doing, go do those things. Do them exuberantly and with joy.

and the France and UK elections

Counter to what this cartoonist (and a lot of other people) expected, the big winner in France’s parliamentary election was the Left, not the Right. The right-wing National Rally (RN) party was leading in the first round of the elections, but ended up finishing third in the final round.

If that sounds confusing, here’s how the rounds work:

The first round eliminates all candidates who fail to win the support of 12.5% of locally registered voters. Anyone who scores more than 50% of the vote with a turnout of at least a quarter of the local electorate wins automatically. The second round is a series of run-offs fought either by two, three or sometimes four candidates.

RN came out of the first round with 33% of the vote, compared to the left-wing New Popular Front’s 28% and 20% for President Macron’s centrist bloc. After that result, RN was expected to be the largest party in Parliament, if not winning an actual majority of seats. But instead:

The surprise result for the leftwing New Popular Front – which won 182 seats, followed by president Emmanuel Macron’s centrist Together alliance on 163 and the far right in third with 143 seats – showed the strength of tactical voting against Marine Le Pen’s National Rally (RN). The far right and its allies had forged a commanding lead in the first round but were ultimately held back by massive tactical voting to prevent them winning enough seats to form a government. …

More than 200 candidates from the left and centre had pulled out of the second round last week in order to avoid splitting the vote against the RN. Those parties had called on voters to choose any candidate against the RN, in an attempt to prevent the far right winning an absolute majority and forming a government.

No party wound up with a majority, so forming a government could take some time. New Popular Front is already a cumbersome union of leftist parties, so holding them together and adding support from centrists might be tricky.

Meanwhile in the UK, the Tories are out of power for the first time since 2010. Labour won in a landslide and Keir Starmer will be the new prime minister. At least two factors are at work here: the general unpopularity of anybody who was in power during Covid (which hits both Biden and Trump here), plus the Britain-specific factor that Brexit has turned into a nightmare.

and you also might be interested in …

You can tell something is losing popularity when Trump denies knowing anything about it. This week, he tried to distance himself from Project 2025, the plan produced by a consortium of conservative organizations to guide his second term.

Michael Steele points out the obvious:

Ok, let’s all play with Stupid for minute…so exactly how do you “disagree” with something you “know nothing about” or “have no idea” who is behind, saying or doing the thing you disagree with?

Here’s why Project 2025 matters: Trump is not a detail guy. We saw that in his first term. He said he wanted a tax cut, but he knows bupkis about taxes, other than how to avoid them. So Paul Ryan had to write his plan. He said he wanted a “beautiful” health care plan to replace ObamaCare, but he knows nothing about healthcare either, so the Republican Congress ended up just barely failing to repeal ObamaCare without any replacement plan.

He hasn’t changed or learned much of anything, so if he’s going to have any policies during a second term, somebody else is going to have to create them. That’s Project 2025.

Florida’s law allowing “volunteer chaplains” from outside organizations to provide counseling services in public schools took effect this week, and the Satanic Temple announced that it was ready to participate in any district that started such a program. So far none have. The Guardian article says this about the church’s beliefs:

The Satanic Temple champions Satan not as a literal, omnipresent demon, but as a symbol of rebellion and resistance to authoritarianism.

I may not be all that in touch with today’s high school students, but in my day “rebellion and resistance to authoritarianism” was the de facto religion of a large majority.

If you’re not from corn country (I am, originally) you might not find the length of this article worth your time, but Chris Jones’ Iowa-based blog The Swine Republic has an insightful essay “Mr. Peabody’s Corn Train” comparing Iowa’s infatuation with corn-based ethanol to West Virginia’s infatuation with coal. The West Virginia situation is further along, so it’s more obvious what a bad decision the state made tying itself to a doomed energy industry. [Footnote for people younger than me: The title derives from an old song lyric. It’s quite evocative if you catch the reference.]

So “dozens” of Nazis marched in Nashville Saturday.

Dozens of self-proclaimed white nationalists marched through downtown Nashville on Saturday. They wore matching uniforms, with ski masks and sunglasses to obscure their faces, and carried Confederate and upside-down American flags. Witnesses say they chanted the Nazi “Seig Heil” salute and called for mass deportations of nonwhite people.

[OK, it’s actually “Sieg Heil”, but don’t ask how I know that.] You might expect “Should I denounce Nazis?” to be one of the easiest questions in politics. But if you’re a Tennessee Republican it seems to require considerable thought.

As of Sunday morning, Gov. Bill Lee had not released a statement. U.S. Senators Bill Hagerty and Marsha Blackburn, as well as Nashville’s three congressmen, have also remained silent.

Nashville itself is Democratic, but due to gerrymandering all three of its representatives are Republicans. The only Democrat Tennessee sends to Congress is Steve Cohen from the Memphis area.

and let’s close with something timeworn

Kueez collects a bunch of photos showing the long-term effects of small but persistent processes. Cat scratches can completely destroy a banister eventually. If people play an organ for over a century, their fingers wear dips into the keys. And here, a family photo kept inside the cover of this watch eventually imprinted on the metal.

July 8, 2024 – 1:18 pm Categories: Weekly summaries | Comments (6)

The Biden Situation

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.

July 8, 2024 – 11:40 am Categories: Articles | Comments (29)

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

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.

July 8, 2024 – 8:38 am Categories: Articles | Comments (10)

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The Monday Morning Teaser

I’m writing a lot today. There were two really big stories this week, each of which deserves a featured post: the Supreme Court’s immunity decision and the Biden situation. But as I wrote about Biden, the story split into two pieces: There’s the substantive matter of what we can know about Biden’s capabilities and what Democrats should do with that knowledge, and then there’s the major-media stampede to push Biden out of the race. (When I fired up my NYT app one day this week, the six articles at the top of the page were all addressing some aspect of the push-Biden-out campaign.) So the media is getting its own article this week.

That’s three featured posts, which I don’t think I’ve ever done before.

Here’s how I see my day playing out: The Supreme Court article is almost ready to go, so it should be out before 9 EDT. The substantive Biden article is barely started, because I wanted to wait to see what top Democrats might say over the weekend, so it might not be out until 11. The media article is mostly done, but I want it to come out after the substantive article, so that substantive comments about Biden will wind up attached to the right article. (I’m going to try to make the media article agnostic about Biden’s capabilities or whether he should drop out.) So that should happen around noon or so.

Then there’s the weekly summary, which has trivial things to cover like the government-changing elections in the UK and France. (And yes, I’ll explain how the two rounds of French parliamentary elections work.) Let’s aim for 1 on that.

July 8, 2024 – 8:36 am Categories: Morning tease | Comments (4)

Don’t Panic

In many of the more relaxed civilizations on the Outer Eastern Rim of the Galaxy, the Hitch-Hiker’s Guide has already supplanted the great Encyclopaedia Galactica as the standard repository of all knowledge and wisdom, for though it has many omissions and contains much that is apocryphal, or at least wildly inaccurate, it scores over the older, more pedestrian work in two important respects. First, it is slightly cheaper; and secondly it has the words DON’T PANIC inscribed in large friendly letters on its cover.

– Douglas Adams, The Hitchhiker’s Guide to the Galaxy

This week’s featured posts are “They Both Lost. What Now?” about the debate and “Down to the Wire” about the Supreme Court’s next-to-last decisions of the term.

This week everybody was talking about the debate

That’s the subject of one featured post.

One issue in this campaign is whether the country was better off four years ago. To refresh your memory, here’s a meme from April, 2020.

Scott Dworkin is keeping a list of Republicans who are not supporting Trump.

It’s way too soon for this kind of humor, but here’s Andy Borowitz:

There are some compelling arguments for replacing Joe with Hunter. You could still use BIDEN ‘24 campaign regalia. He’s a generation younger. And the fact that he’s a convicted felon could attract Republican voters.

and the Supreme Court

Having delayed to the very end of the term, the Supreme Court is about to post its decision on Trump’s immunity claim. I’ll punt my analysis until next week.

Everything from last week is covered in the other featured post.

and Oklahoma

Oklahoma is suddenly a central battleground for church-and-state issues. This week saw one effort to shore up the wall between the two, and another to blow a hole in it.

The Oklahoma Supreme Court defended the wall: It ruled 6-2 that the state’s charter school program can’t support an openly Catholic school.

The Oklahoma state constitution has a pretty sweeping statement separating church and state:

Article 2, Section 5: No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

Article 1, Section 5 makes that provision specific to public schools:

Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control

Nonetheless, two Catholic institutions got together to create St. Isidore, which they pitched as a virtual charter school to be supported by the state. The majority opinion summarizes:

The Archdiocese of Oklahoma City and the Diocese of Tulsa applied to the Charter School Board to establish St. Isidore, a religious virtual charter school. St. Isidore does not dispute that it is a religious institution. Its purpose is “[t]o create, establish, and operate” the school as a Catholic school. Specifically, it plans to derive ‘its original characteristics and its structure as a genuine instrument of the church” and participate “in the evangelizing mission of the church.”

Despite the state constitution, the Oklahoma Charter School Board accepted St. Isidore’s application by a 3-2 vote, and made a contract to fund the school that would have begun today.

The argument on the other side, which a dissent spells out, is something you’re likely to hear again — possibly when the sponsoring dioceses appeal to the US Supreme Court: St. Isidore isn’t a “public school” per se, it’s a private organization contracting to provide a service (i.e., education) to the state. It shouldn’t be banned from competing for state contracts just because it’s a religious organization. It’s like a Catholic hospital providing medical services to Medicare patients.

Six justices weren’t impressed with that argument, mainly because of that “participate in the evangelizing mission of the church”. A Catholic hospital isn’t trying to make good Catholics out of its patients, but St. Isidore would be trying to make good Catholics out of its students. That may or may not be a worthy goal, but State of Oklahoma shouldn’t be paying for it.

Meanwhile, the state’s Superintendent of Public Instruction dropped a bomb intended to knock the wall down.

In a state board of education meeting on Thursday, state superintendent of public instruction Ryan Walters announced a new memo “that every school district will adhere to, which is that every teacher, every classroom in the state will have a Bible in the classroom and will be teaching from the Bible in the classroom to ensure that this historical understanding is there for every student in the state of Oklahoma in accordance with our academic standards and state law”.

You can see Walters’ statement in the video of the meeting. Don’t be intimidated by the nearly-six-hour meeting length. Walters’ comments happen early: Around the seven minute mark, he says he will challenge the Oklahoma Supreme Court’s St. Isidore decision “all the way to the Supreme Court”. He then goes on to make his comments about teaching the Bible in all classrooms, because of its historical significance for “the Constitution and the birth of our country”. He’s done by the ten-minute mark.

My comment: Christianity does have a lot of historical significance for the US, both for good and ill. But if we’re going to be focusing on that in classrooms, I think we also need to teach about the constant religious strife in England during the 1600s, as Catholics, Anglicans, and dissenters (i.e., Oliver Cromwell) fought for control of the government. This was the English version of the continental Thirty Years War, in which battles between Protestants and Catholics killed millions and depopulated parts of Germany by 50% or more.

The Founders knew that history and didn’t want similar wars of religion to erupt here. Hence the Establishment Clause of the Constitution, which Jefferson summarized with the metaphor of a “wall of separation” between Church and State. Saying to the various denominations: “You can compete in all sorts of ways, but the government is off limits” was a very astute piece of statecraft.

In contrast to making kids learn the Bible, South Carolina has taken the opposite tack: Don’t let them read anything else. The Department of Education’s new regulation mandates that all books in classrooms or school libraries be “age appropriate” and not describe “sexual conduct”. Any parent of public-school students can challenge up to five titles a month, and a state board is the decision-maker rather than any local authority. Those phrases sound fine, but the problem is their vagueness: Librarians who don’t want to keep defending their choices to the state will self-censor all books about sexuality or race, including many that some students would benefit from reading.

For reasons no one seems to be able to explain, the legislature didn’t discuss this during the standard 120-day vetting period for new regulations, so it took effect Tuesday.

And there’s always Louisiana:

and you also might be interested in …

My wife recently asked me if there was anything good happening in the world, so I pointed to this: California’s shift to renewable energy is starting to show some serious results. Bill McKibben elaborates:

Something approaching a miracle has been taking place in California this spring. Beginning in early March, for some portion of almost every day, a combination of solar, wind, geothermal, and hydropower has been producing more than a hundred per cent of the state’s demand for electricity. Some afternoons, solar panels alone have produced more power than the state uses. And, at night, large utility-scale batteries that have been installed during the past few years are often the single largest source of supply to the grid—sending the excess power stored up during the afternoon back out to consumers across the state.

I mean, it’s encouraging when some island in Denmark replaces fossil fuels with wind power … but California!

Another good thing happening: Violent crime is falling. One good example comes from liberal Massachusetts.

Boston’s murder tally was already low. The city had 70 homicides in 2010 and 56 in 2020; last year, there were 37.

So far this year: 4.

Steve Bannon (a.k.a. inmate #05635-509) is supposed to start his four-month jail term for contempt of Congress today. Depending on how vindictive you’re feeling at the moment, that also might lift your spirits.

Before he gets out, he’ll have to stand trial on something else: defrauding contributors to the We Build the Wall campaign. Let me suggest a defense he might try: No harm was done, because people who would give to a cause like that, headed by someone like him, are so stupid they would have lost their money somehow anyway.

and let’s close with something big

Depending on your mood, astronomy can either depressing or uplifting. Maybe it makes you feel insignificant, or maybe it makes your troubles seem insignificant. It’s a Rorschach test.

This photo, pieced together from some number of Webb telescope images, is 340 light years across.

July 1, 2024 – 11:09 am Categories: Weekly summaries | Comments (5)

Down to the Wire

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.

July 1, 2024 – 10:30 am Categories: Articles | Comments (10)

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