A Brief Comment on the Government Shutdown

 I actually find it encouraging that Donald Trump is urging Senate Republicans to end the filibuster and they are refusing.

First of all, Trump specifically chose this shutdown.  He wanted it because he saw it as an opportunity to make power grabs.  Asking Senate Republicans to end the filibuster and reopen the government means that he no longer sees the shutdown as playing to his advantage.

Second, Republican refusal is doubly encouraging.  It means that Senate Republicans are not wholly subservient to Trump, but still see institutional interests to uphold.  It also means that they believe there may be a time in the future when Democrats hold the triple crown and Republicans may need the filibuster to block them.  I think this assumption is extraordinarily naive, but Senate Republicans are closer to the centers of power than I am.  Maybe they know something I don't.

Assuming there actually is such a chance, there are still good reasons to consider ending the filibuster for continuing resolutions only.  All our previous shutdowns have occurred with divided government, i.e., at least one house of Congress controlled by the party opposed to the President.  In other words, filibustering a continuing resolution is something new and a serious escalation.  I would prefer to see this option disarmed precisely so filibusters of continuing resolutions do not become a routine way of doing business.

I do want to see the filibuster retained other than for continuing resolutions.  We may need it to block who-knows-what insanity Team Trump may propose

A Few Notes to Our Side on ICE Confrontations

I understand that ICE is acting like an organization above the law and appears to believe that the First and Fourth Amendments are suspended wherever it goes.  And I get that they are trying to provoke a confrontation to justify a crackdown.  And I get that what they are seeking is submission and people surrendering their rights, and that we must not allow them to prevail on that.

But it is also important for our side to understand the rule and know when we are and are not on the right side of the law and what to expect from state and local law enforcement, even in a sanctuary jurisdiction.

Point One:  Protesting against ICE is clearly protected by the First Amendment, much as ICE may seek to disagree.

Point Two:  Government may, nonetheless impose time, place, and manner restrictions in the interests of keeping the peace.  For instance, government may require protests to be a certain distance from an ICE facility if that cuts down on confrontations.  It may require protests to disburse before dark if protests after dark tend to lead to violence.  It may limit the volume of protests and so forth.  State and local police, even in a sanctuary jurisdiction, will enforce these limits.  

Point Three:  Any violence against ICE, such as vandalizing their facilities or assaulting ICE members is a crime and is properly prosecuted to the full extent of the law.  ICE often lies about these things, but they do occur and should not be condoned.

Point Four: Getting in the way and physically trying to block ICE vehicles or agents is criminal obstruction, even if done without violence.  I believe it can be a legitimate form of civil disobedience (more on that later), but it is illegal and state and local police, even in a sanctuary jurisdiction, will not allow it.

Point Five:  Filming ICE in action is protected by the First Amendment, much as ICE may object, so long as it is at a distance and does not interfere.  Teaching immigrants their rights, including the right not to admit ICE into private areas without a judicial warrant, is also protected by the First and Fourth Amendments.

Point Six:  This is the one I am not clear on as to when tracking ICE and warning people about its location is protected by the First Amendment and when it becomes criminal obstruction.  There are experts who can give better guidance on this.

But the part that interests me most, and that people on our side most need to understand is the matter of peaceably blocking ICE vehicles and other acts of civil disobedience.

First, it really is criminal obstruction, and the state and local authorities, even in a sanctuary jurisdiction, will not allow it, and will protect ICE agents at work and make arrests if necessary.  This has the uncomfortable effect of subverting a sanctuary laws by forcing local authorities to be complicit in ICE actions.  On the other hand local police are generally less violent than ICE, less abusive, less prone to use tear gas and pepper spray, and so forth.  

And really, civil disobedience is the sole preserve of private citizens.  There are serious problems with government officials, tasked with enforcing the law, choosing to disobey it.  Yes, there is the difficult issue of disobeying an unlawful order, which I expect to come up sooner or later.  But deciding that a valid law is nonetheless unjust is a dangerous power in the hands of people tasked with enforcing it.  No matter how much we may applaud it in this case, it sets a dangerous precedent that may come back to haunt us.

Second, private citizens who wish to get in the way and try to block ICE need to understand that this is civil disobedience.  Upon making the decision to engage in civil disobedience, the people doing so should understand the guidelines underlying civil disobedience.  (Not laws, since civil disobedience is illegal by definition, but moral guidelines set forth, as I understand it, by Martin Luther King).  And those guidelines are:

First, a person engaged in civil disobedience is breaking a law he or she considers unjust.  Check.

Second, the disobeyer breaks the law openly with no attempt to conceal his or her actions.  Again, check.

Third, the disobeyer acts breaks the law without violence.  This point requires further elaboration.  An initial commitment to reject violence is not enough.  The disobeyer will be facing people who do their utmost to provoke in order to justify a violent response.  I highly recommend the movie Freedom Song about the Civil Rights movement.  It makes the point I had not seen before or even known that the Civil Rights movement did not send people cold into a potentially dangerous situation.  First, anyone going into such a situation rehearsed the sort of provocation they were likely to face, prepared for it, and was trained in not being provoked.  (The hero of the movie snaps when the trainers spit on him and is warned he must accept even that without retaliation).  

It is my understanding that immigrant rights groups frequently do train people in this way before they go into any situation that might mean confronting ICE.  What I don't know is how universal this training is.  I realize that the current situation differs from the Civil Rights movement in that advocates do not choose when and where a confrontation takes place.  But training in restraint should be universal for anyone sent into a potentially dangerous situation.

Fourth, the disobeyer must accept the penalties imposed for breaking the law, however unjust.  And this is important.  No matter how obviously unjust the law may seem to you, there are people who disagree, or it would not be law in the first place.  And yes, I do understand that ICE grossly inflates charges at best and fabricates outright at worst.  Submitting to the law does not  mean foregoing the right to challenge lies told by the other side, or to challenge their actions as unconstitutional.  But there are real dangers in people who believe that the justice of their cause places them above the law.  The Gaza protesters are an obvious example.  People on our side need to understand that any attempt to block ICE is criminal obstruction, cannot be condoned by any law enforcement, and will be prosecuted as criminal obstruction.  Anyone who makes such and attempt should do so with that understanding.  So should people who cheer them on.

 

Look on the Bright Side of the White House Ballroom

 Well, look on the bright side of Donald Trump's demolition of the East Wing.  

If he is going to undertake a major construction project, he is in for some reminders about just how much the construction industry depends on immigrant labor.  Maybe he will once again start thinking about carving out exceptions.

Why I Think the Democrats Should Cave on the Government Shutdown

 

Yes, I get that if you make any concession to Donald Trump at all it will simply whet his appetite for more.  And I realize it is a very bad idea to reward hostage taking because you encourage more of it.  And I understand the Trump and Vought are just using the shutdown as an excuse to do things they were going to do anyhow.

But I still think Democrats should extend funding for a few more weeks.   

Why?

Well, first of all, it is not as though they are extending a full year, or even a few months.  It is just a matter of weeks.

Second, I really don't understand the politics underlying the shutdown.  Yes, I get that Democrats have chosen to take their stand on the area where they have the greatest advantage over Republicans -- healthcare subsidies.  That makes some degree of sense.  Only, this approach makes no sense at all.  Democrats are essentially trying to save Republicans from their own folly by extending the subsidies before anyone feels any pain.  Look, guys, you will never get any credit at all for the disaster you stopped from happening.  People will just go on with their lives and wonder what the fuss was about.  If anything, it will make you look like Chicken Little saying that the sky is falling when the subsidies are extended and nothing happens.

Third, I get that you are trying to bring pressure to bear on Republicans.  Hot news flash: It isn't working.  But you know what will put real pressure on Republicans?  People actually seeing their premiums spike. It is my understanding that after Hakim Jeffries and Chuck Schumer talked to Trump, they came away with the impression that he had no idea what is One Big Busted Budget was about to do.  AOC has also said that when she asks Republicans why they aren't concerned about spiking premiums, they say they don't really expect it to happen.  Well, actual premium spikes should clear all that up.  Touch a hot stove and all.

Health insurance premiums also have the advantage of being the issue that is easiest for Trump to cave on.  He won't yield any ground on ICE because they are his secret police.  He won't give way on tariffs because that is how he avoids Congress's power of the purse.  And he won't back down on rescissions and impoundments because that is how he punishes jurisdictions for voting for Democrats (along with ICE blitzes, of course).  While I find Trump's anti-vax approach to be baffling, there is at least some political sense to it.  He is trying to broaden his base by creating a MAGA/MAHA alliance.  I think he will alienate more people than he wins, but apparently Trump has a different calculation.

But Trump gains nothing -- nothing whatever -- by people's health insurance premiums spiking.  It hurts his popularity while doing nothing to advance his power.

A one-year extension would create a great issue for Democrats in the midterms (assuming you believe in the midterms).  They could point to the chaos that broke out when the subsidies lapse and warn that a one-year extension means a repeat unless you elect Democrats to make the extensions permanent.

The interesting question is going to be what happens when premiums jump.  Up till now, we could be sure that the Republicans would splinter, disagreeing on what to do and the more sane members would have to cut a deal with Democrats to get an extension.

What appears to happen now is that Donald Trump decides what to do and cracks the whip and all Republicans will fall into line, no matter how much they hate it.  I have no idea what Donald Trump will decide to do when premiums spike.  I don't think Trump knows either

Will There Ever Be Another Democratic President?

 

Even before Team Trump moved seriously to shut down the opposition altogether, I have seriously wondered whether it will ever be possible for a Democrat to be President again.  

Last time a Democrat won, Trump tried every trick he could think of to overturn the outcome.  He sued.  He pressured Republican election officials to throw out the results.  He pressured Republican state legislatures to appoint alternate sets of electors.  He suggested having the military, or Homeland Security, seize ballot boxes and do a "recount."  He asked the Department of Justice to declare fraud.  He persuaded many Republican members of Congress to vote against certification, but Democrats had the majority in the House.  So he pressured his Vice President to unilaterally reject the electors from states he lost.  And when all that failed, he incited a mob to march on the Capitol.

He was thwarted by heroic Republicans like Brad Raffensperger and Rusty Bowers, who insisted that election results must be respected, and by members of the "deep state" who insisted on following the law.  Does anyone believe Republican election officials will stand up to Trump this time?  And, even if they do, he now controls the Deep State, and can order it to do anything, up to and including a military coup, to keep him in power.

To my mind, the chances of a Democrat ever being President again will depend on two separate and seemingly unrelated, but actually closely related factors -- Trump's health and the health of the economy.

Assuming Donald Trump does not shut down the Democratic Party altogether and allows it to run a candidate in 2028, it seems a safe assumption that he will be the Republican candidate if his health allows.  Trump has not let himself be bound by any other laws, so why should he respect the 22nd Amendment?  And if he runs and loses, there is no way that Donald Trump would not overturn the result.

It also seems a safe assumption that if Trump dies or becomes completely incapacitated between now and 2028, he will not be the candidate.  But what if he is not dead or comatose or barely verbal, just wholly incoherent.  (As in significantly less coherent than he is now).  My guess is that if the economy is doing reasonably well, this will be unmentionable and he will still be the candidate.  But if the economy is in serious trouble, my guess is that at some point people will start to notice that Trump is unfit for a third term and get him disqualified.

Again, assuming the Democratic Party has not been shut down and an actual contested election takes place, would a Republican not named Trump accept the results?  I will concede that up till now, Republicans not named Trump running for an office other than President who have lost have accepted the results.  Even if they lost by only a few hundred votes, and the shift came in late counting days after the election, Republicans have accepted defeat.  I accept the same to happen in this November's election.  I am skeptical that Republicans will accept defeat, at least at the federal level, in 2026, assuming a contested election at all.  But we will see.

But, assuming a genuine contested election in 2028 with a candidate other than Donald Trump, there will be the 2020 precedent that elections for President are only binding if the Republican wins.  What would persuade a Republican other than Trump to allow a Democrat to take power?

My guess is, only if the economy is such a mess that they decide it is better to step aside and let the Dem take the blame.

I guess we will see.

Congratulations to the Portland Protesters

 

In making recommendations to immigration advocates, I suggested a symbol and a song:

Make it something catchy and easily learned that becomes the signature tune of the movement. (The Civil Rights Movement had "We Shall Overcome.") Make it something that conveys moral authority. In the case of immigration, that means assuring people of your allegiance. For that reason, songs in Spanish, with a Mexican beat, are dangerous, just as the Mexican flag is dangerous. Make it something that comes from the heart. I get that these two things may be in tension -- a song vowing allegiance to the US may come across as insincere, especially given how the US is behaving now.

The Portland approach never occurred to me, but I have to say it checks all the boxes.

Cute, inflatable animal costumes are definitely catchy.  They solve the question of how to get people's attention without angering them.  They easily go viral.  They are memorable.  They certainly come from the heart and are sincere and authentic.

And they do convey moral authority.  When you see ICE beating someone in a cute animal costume, it will be hard to portray the person in the cute costume as the aggressor.

The only problem I can see is that the disguise may make it easy for provocateurs to infiltrate a protest.

Reichstag Fire Moment, Continued

Reichstag Fire

 It has been almost a month since I asked whether the Charlie Kirk assassination was our Reichstag Fire moment.  Since then I have been too paralyzed with fear to write any more.  And the answer appears to be that there are some very disturbing developments taking place below the surface, although most have not yet sprung into view.

The ICE blitz in Chicago actually began the day before the Charlie Kirk assassination and National Guard deployments have been delayed, so the most visible aspects of Trump's crackdown seem unrelated (though no less alarming for that).

Plans are being laid in Washington that sound very much like an attempt to shut down all opposition organizations, though it is not yet clear when this will come into view or how far it will go.  Stephen Miller is spearheading an integrated attempt to shut down donors and organizations the Administration defines as "terrorist" or "Antifa."  Naturally, anonymous officials insist that they are not targeting activities protected by the First Amendment, but Team Trump seems to regard the First Amendment as protecting only speech it approves of and treats all criticism as criminal incitement.  ICE is beginning to be directed to surveil opponents as well as immigrants.

Officials in the article cited deny targeting any specific organizations.  However the IRS has been given a list of specific organizations and individuals to target.  Ordering the IRS to target specific individuals or organizations has been a felony since the 1970's.  This is very much a thing I feared from the start.  I just misjudged how long it would take to implement.

ICE has been given a massive spyware contract that will allow it to bypass any warrant requirements on spying and go through tech companies instead.  It is hiring contractors to look into “individuals who pose a danger to national security, risk public safety or otherwise meet ICE enforcement priorities.”  In other words, it is being turned into a true secret police with powers to spy on political opponents.

And Ted Cruz -- who, to his credit, condemned government attempts to force Jimmy Kimmel off the air -- is calling for anti-Trump protests to be prosecuted as RICO violations.  In fact, Republicans all across the board were denouncing the No Kings protests as terrorists acts by Antifa.  (Once the protests finished without violence, Republicans are dismissing them as a bunch of out-of-touch old white guys).

These things are all in early stages.  But collectively, they look like an attempt to shut down the Democratic Party and all its donors and supporting non-profits.  In other words, to create a one party state.  

I will also note that within a month of the Reichstag Fire, the German parliament voted itself out of existence.  Given the importance of Congress's power of the purse strings, I would dismiss that out of hand here, except that Mike Johnson seems to be doing his utmost to prevent Congress from ever convening again.

Buckle up.