Democrats Re-Learn the Lessons of 2018

 

We are seeing comparisons to the 2018 elections here (the last midterm when Donald Trump was President).  Most people who say that mean that Trump was unpopular, Democrats were ahead in the generic ballot, and Democrats did, indeed, make sizeable gains.  I agree with all that, but it seems to me that another highly salient fact of the 2018 election is coming to light.  Namely, the Democrats are again showing that, in a midterm election, you can beat message discipline with message indiscipline.   

Just to be clear, I am not suggesting that the approach would work in a Presidential year.  In a Presidential year, all eyes are fixed on the top slot, and everyone else has no real choice but to fall in line.  An off-year election is a different matter.  In 2018, the Republican were all singing on the same tune on cue, while the Democrats were belting out a glorious cacophony.  While Alexandria Ocasio-Cortez was leading the Squad into Washington and heading off in a leftwing direct, other district were running former military and intelligence officers with strong national security backgrounds.  All were campaigning on different, often locally-focused platforms.  And the Republicans, all singing on key, couldn't counter all those different messages at once.

And here we are again. The DSA (Democratic Socialists of America) are denouncing Israel and calling for Medicare for All.  Jon Ossoff is firing up crowds vowing to fight corruption.  James Talarico is hewing center and talking about his faith.  Mary Peltola is running a pro-oil, pro-fisheries campaign in Alaska.  Run For Something is building the bench.  And, of course, it makes a difference that the US has a lot of elected offices.  Democrats have hard-fought, sometimes bitter, primaries, but all line up behind the winner in the end.  

Against this, the Republicans are almost absurdly on-message.  They all cry Communism, but no one believes them.  When an assassin attempts to kill Trump, they all fall in line saying this proves the need for his ballroom.  When Ossoff mentions Natalie Harp, they all freak out at once.  It is impossible not to believe that they are taking directions from the top down.  

And I have noticed that in 2026, Republicans seem to be repeating a mistake the Democrats made in 2024.  In 2022, the Supreme Court overturned Roe v. Wade and held that abortion was not a constitutional right.  This decision proved highly unpopular, and Democrats rode it to a semi-victory in 2022 -- used the threat to abortion rights to thwart the predicted Red Wave.  They tried it again in 2024 and found that abortion is enough to win one election, but too narrow for a lasting majority.  Republicans are repeating the mistake.  In the 2024 Presidential debate, Donald Trump said that Harris, “wants to do transgender operations on illegal aliens that are in prison.”  Politifact rated it as "mostly true."  It also proved to be a winning message that checked people's boxes about all the worst traits associated with Democrats.  Transgender athletes also proved to be a winning message. Given the recent burst of inflation and crime, and the state of the border, it seems unlikely that this was the primary reason that Trump won, but it did prove to be one of his most successful campaign ads.

Well, Republicans are learning that the same thing applies to transgender issues as to abortion.  It is simply too narrow an issue to build a lasting majority.  Social issues are legitimately important.  They tell us about people's underlying values and what sort of society they favor.  But any one social issue is apt to look more like niche issue and not enough for a broad-based coalition.  To build a broad-based coalition, you must convince voters that the other party just doesn't share your values.  And that means they don't share your values across a wide range of issues.  Republicans have done it for a long time and with great success against Democrats.  And now Democrats just might have the constellation of issues -- corruption, undue influence for tech billionaires, data centers, pervasive surveillance, etc. -- to show the Republicans don't share most people's values either.

But above all, convincing voters that the other side doesn't share your values means acknowledging that not all Americans have exactly the same values, and that you are willing to build a big tent to let in a wide range of outlook.  And it means portraying the other side as narrow-minded dogmatic, and judgmental.  In short, it means allowing for a certain degree of message indiscipline -- and exposing the dangers of too much message discipline by the other side.

A Trip to Fantasy Land

Hakeem Jeffires 

Let's start with some basics.  Assume Democrats win by a landslide in November and Team Trump fails to prevent them from coming to power.  There is no way they will be able to impeach and remove Trump, even if he shoots someone in the middle of Fifth Avenue.  I suppose if he bungles things so badly that his approval rating falls below, say 20% (not gonna happen), and Republican absolutely see him as an anvil weighing them down, they might be able to muster a 2/3 majority to convict.  But then JD Vance will be President.  And there is absolutely no possibility of the Senate convicting both, because that would make Hakeem Jeffries President under the Presidential Succession Act that makes the Speaker of the House next in line.  There is no way 2/3 of the Senate would agree to that.

But let us suppose that the Democrats win both houses in 2026 by a sweeping landslide and Trump is unable to throw out the results.  On January 3, 2027, Hakeem Jeffries is sworn in as Speaker of the House.  The next day a bolt of lightning appears out of a clear blue sky and strikes Trump and Vance dead, so Jeffries becomes the next President.  What would I recommend?

Well, if a Democrat wins in 2028 and Trump is somehow unable to overturn the result, my advice would be to act boldly in exposing what Trump has been doing and instituting reforms to keep it from ever happening again.  I would advise a President Jeffries to be more circumspect.  Not being actually elected to the office he would not have a mandate from the people, so he would be somewhat lacking in legitimacy.  That would have to be taken into account.  I would recommend that he halt any illegal actions by Team Trump and work to clean up the mess that he made but leave major policy initiative to Congress.  Of course, if a duly elected Congress passes a measure, it would have the mandate from the people, so I would recommend that Jeffries sign it and be forceful in implementing it.  

Within these limits, what do I recommend?  I have often said that I cannot tell if JD Vance is an opportunist with no principles or a dogmatic ideologue, but I hope that he is an unprincipled opportunist, because an unprincipled opportunist can be rational if it is in his interest.  A dogmatic ideologue never bends.  Tom Homan is an unprincipled opportunist.  He tacks with the wind.  Greg Bovino is a dogmatic ideologue.  

So, my advice to a hypothetical President Jeffries is to get rid of the ideologues in Trump's Cabinet right away but keep the opportunists until they give you a reason to fire them.  We will see how long it takes.  The absolute first thing he must do is fire Pete Hegseth.  Hegseth is the only one who might actually be able to stage a coup.  But it will take at least some time to make a plan (we are assuming lightning strike, after all), and everyone in the Pentagon hates Hegseth's guts and might refuse the unlawful order.  So, fire Hegseth right away and have him escorted off the premises.  There will be great cheers in the Pentagon.  Replace him with some apolitical and uncontroversial technocrat who can revamp the military to catch up with all the changes in modern warfare, probably the CEO of some drone contractor.  

Once Hegseth is out of the way, fire RFK, Jr. and replace him with some uncontroversial and apolitical technocrat who can clean up the mess he made.  Fire Russ Vought and replace him with someone personally loyal but also loyal to the law.  (There is no way the Director of the Office of Management and Budget can escape political controversy).  Fire Steve Miller.  There is no need to replace him.  And generally fire the White House staff who do not need Senate confirmation.  They are picked for personal loyalty to the President and do not have to administer agencies.  Give the rest the benefit of the doubt and let them prove they are unprincipled opportunists who can tack with the wind.*  Tell them that firing all of them would be too messy, but that when you give a directive, you expect them to obey or resign.  Once Hegseth is out of the way very quietly let your Attorney General and Secretary of Homeland Security know that any coup attempt will be met with military force.

With that out of the way, what about policy?  

(1)  Artificial Intelligence (AI) really is getting scary and threatening to run out of our control.  But it does no good for us to halt development if China proceeds.  It is not a subject I know anything about, but deferring to people who do: Ban the export of Nvidia chips or other important AI components to China or anyone who might let them get to China.  Then gather together the leaders of the industry and leading experts and make an agreement to halt its expansion until we have reasonable rules in to keep us in charge.  Have them start on a regulatory framework.

(2) Speaking of tech, authorize Starlink to give Ukraine targeting information inside Russia.  In exchange, bring ask Ukraine to send us military advisors to revamp our military to learn the immense changes that have happened in warfare since 2022.

These have the advantage of being something that can be done quickly and unilaterally.  They are both very important in heading off future disaster, but they will yield no immediate or visible benefits, which are very much in demand, so we need to deliver as well.

(3) Return ICE to the barracks and Border Patrol to the border.  Withdraw other Federal law enforcement from immigration and get the back to enforcing the law.  Restore Temporary Protected Status where Trump has revoked it.  Order ICE lawyers to allow bond for any arrestees who do not have a criminal record and have enough ties to their communities not to be flight risks, including people who are in the vast prison network now.

This will benefit immigrant communities and their neighbors, but the advantage to the rest of us will probably not be immediately apparently.  Work closely with the agriculture, construction, healthcare, and other industries that rely heavily on immigrant labor to make sure they get what they need to get going.  This may offer some modest economic relief.  Publicize it.

(4) In order to deliver actual benefits, get out of the Iran war as quickly as possible on whatever terms we can get.  This may require some escalation first. Be smart and cautious about it.  Also level with the American people.  Let them know that ending the war may offer some immediate relief at the pump, but the effect will be modest.  Explain that it will take time to repair the drilling and refining capacity destroyed during the war, to refine oil once it starts flowing, to refill reserves, etc.  Give some realistic time frame for gas prices to fall.  Give yourself some margin for error here.  Also, reduce tariffs on imports.  Work on restoring trade relations.  Again, let the people know what sort of short term versus long term relief to expect.

(5) Push alternatives to fossil fuels -- solar, wind, nuclear, and geothermal.  Since acronyms in in the vogue, call it SWING.  Someone I read said to promote SWING as a national security, rather than environmental, matter.  But I think most Americans care only marginally more about national security than about the environment.  I would say, promote SWING as a consumerist matter.  SWING will protect you from swings in oil prices.  Don't let your pump prices be hostage to turmoil in the Middle East.  Sounds like a winning message to me.  Of course, this, too, will take time.  Push for permitting reform.

(6) Clean up the mess Trump left across the government.  Be as forthright as possible about the mess you are finding and what you are doing to clean it up.  Level with the American people that it will take time.  Celebrate successes.  Blame the previous administration.  A lot.  The American people will give you at least some leeway.  But maybe not all that much.

(7) Don't run in 2028.  Prices won't return to what they were in the good old days.  People won't adjust overnight.  Anger will remain in 2028.  Step aside and let someone not associated with you take the reins.  Blame the previous administration.
 

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*What about Kash Patel?  He is no mere opportunist, given his background.  But he appears to be such a lightweight that he can't help but tack with the wind.

Reflections on Jon Ossoff

Jon Osssoff

Not that long ago, Republican politicians who were falling behind in the primary or losing popularity seemed to have an infallible method of recovery.  Just take a bribe or commit some other crime, and then cry persecution when anyone tries to hold you accountable.  Ken Paxton, impeached by the Texas House, was the classic example.  Conventional wisdom said that only Washington insiders cared about corruption; ordinary citizens applauded vices of all kinds as proof of "authenticity."  And some advisors were urging Democrats to do the same thing.  Stick to bread-and-butter issues.  Avoid moralizing, including talk about democracy.  Some left wing insurgents went further and urged Democrats to seek out someone who had done something obnoxious and offensive at best (say, having a Nazi tattoo, or being a total jerk to women), so as not to be a "smooth groin" or "grown in vats."

Well, things have changed.  Texans are recoiling at Paxton's corruption, possibly even enough for him to lose, certainly enough to make it harder than someone like John Cornyn.  And in Georgia Jon Ossoff is firing up crowds by vowing to expose Trump's corrupt activities and hold people accountable.  He is bridging the gap between the moderate and progressive wings of the Democratic Party.  Both of them want a "fighter," and Ossoff is giving that to them in spades. 

The phenomenon is really not that hard to understand.  It all goes back to the old adage that people fight more over a shrinking pie than an expanding one.  When times are prosperous, people smile indulgently on a little corruption in their leader.  After all, people say, he brought all this prosperity to us, it seems mean-spirited to grudge him a share of it.  But when people are feeling pinched, nothing sparks their resentment more than seeing someone party it up on their dime.  And Trump is doing that in spade.

Ossoff and Warnock

No one has paid much attention to Ossoff up till now.  When he ran for Senate in 2020, he was largely overshadowed by Raphael Warnock.  Warnock also got more of the spotlight because he had to run again in 2022 -- against Hershel Walker, no less.* But now people are even talking about Ossoff as a candidate for President.  Although I absolutely favor appointing him to the Permanent Subcommittee on Investigations, as Chair if Democrats win control of the Senate and Ranking Member if they do not.  But I have some misgivings about Ossoff as a candidate for President.  Why?

The answer is a bit hard to put my finger on.  His oratory has been compared to Obama's, but that is clearly not true.  While Obama campaigned (however implausibly) as someone who would bring us all together, Ossoff makes no such pretense.  He channels people's anger, not their hopes.  Under more normal circumstances, I might call him a demagogue.  In this case, the anger he stirs up is entirely justified and appropriate.  It still makes me uneasy.  Alternately, one could say the problem with Ossoff is that he limits himself to being against Trump and does not really stand for anything.  Except that I really do think that restoring the rule of law and implementing safeguards to prevent another such lawless President really is the most important issue we face.  And, again, I really do believe that the person at the top should be a generalist and appoint the best specialists as advisors, but it really does bother me that I just can't see what Cabinet or other executive office I would appoint Ossoff to.

And, again, just to be clear, I am not suggesting that Cabinet posts should be held be prominent politicians.  To the contrary, there are often many fine candidates who no one has ever heard of.  But imagine a hotly contested Democratic primary in 2028 and the front runner seeks to buy the others' support by offering them Cabinet posts.  What positions seem right for various Democratic hopefuls.

Mark Kelly: Secretary of Defense.  He has a strong military background and knows how actual militaries work, as opposed to how to show off for the cameras.  Task him with revamping our military to meet all the changes that have happened to warfare.

Bernie Sanders: Secretary of Health and Human Services.  Yes, I know, he is too old to run by now.  But whereas our best Secretary of Defense is probably some drone contractor CEO no one has ever heard of, I really do think Sanders should be Secretary of HHS.  He has served on the Committee of Health Education, Labor and Pensions for long enough to know the field.  As the foremost and most uncompromising champion of Medicare For All, he should be put in a position to put up or shut up.

Gavin Newsom: Secretary of Homeland Security.  Newsom was the first Governor to stand up to Trump during an ICE blitz, not knowing what the consequences would be.  I would very much like to see him head the department he so forcefully defied and cut it down to size.

Elizabeth Warren: Head of the Securities Exchange Commission or some other major financial regulatory agency.  Yes, I know, she is also too old to run and never seriously made the attempt. Also, financial regulation stops short of being Cabinet level.  But it is Warren's real specialty and besides, a less exalted office is suitable to a less serious candidate.

Adam Schiff: Director of National Intelligence.  He is also a fine candidate for Attorney General, but he is a bit old, and there are others (as we shall see).  Meanwhile, foreign intelligence is his specialty, so it seems to fit best.

Kamala Harris: Attorney General.  She was Attorney General of California, after all.

Jamie Raskin:  Attorney General.  Yes!!!!!

James Talarico:  Secretary of Education.  Appears to be his background.

Andy Beshear:  Has been recommended for Secretary of Housing and Urban Development (HUD).  Zohran Mamdani, though not eligible to be President, might prove to be a good candidate, too. 

Alexandria Ocasio Cortez:  Not sure.  Probably a good reason not to choose her, either.

But what Cabinet post would Joh Ossoff qualify for?  Attorney General might seem tempting, but he is not a lawyer, which disqualified him.  Ossoff's background is as a documentary film maker.  In countries with a Minister of Information, he could be Minister of Information.  But the US does not have such a post and considers the mere suggestion un-American.  I suppose that leaves White House Communications Director, but it seems beneath a Senator or candidate's dignity.  The most plausible spot I can find for Ossoff would be to head some sort of blue-ribbon commission to investigate the Trump Administration's crimes and recommend reforms, which seems like an honorable post.**  And maybe if Ossoff prove effective in exposing corruption and suggesting reforms, that might give him a strong enough policy hold to make him a good candidate for President.

But I don't think he is there just yet.

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*Probably another example of why it is not such a good idea to pick the worst candidate around on the theory that they will be the most "authentic."

**Come to think of it, Ocasio Cortez's work has mostly in oversight, which makes her a good candidate for the role as well.

Why Democrats Should be Willing to Crawl Over Broken Glass to Vote for Abdul El-Sayed

 

Abdul El-Sayed

I will begin by setting forth my position, which I hope to repeat many times throughout the election season.  I believe, as I think many others do, that Donald Trump is an existential threat to our democracy and everything we hold dear, who must be stopped at all costs.  I think that many others agree.

And if you truly believe this, it logically follows that "all costs" should include voting for a candidate who is not your first choice, or who you did not vote for in the primary, or who does not check all your ideological boxes.  It even means voting for a candidate who may be troubling in some ways.

And, in fact, Democrats seem to have taken this lesson to heart.  After long, hard-fought primaries, they have promptly closed ranks behind the winner.  When Graham Platner was forced out in Maine, Democrats quickly coalesced around at candidate who shared is policy outlook and had a real working class background but lacked his unsavory baggage.  When the leftwing insurgent in Wisconsin lost the gubernatorial primary to an establishment candidate, she lined up behind the winner.  And so, too, in Michigan, when Abdul El-Sayed, the leftwing insurgent, beat the establishment candidate, Michigan Democrats promptly closed ranks behind him.

El-Sayed, so far as I can tell, stands well to the left of your median voter or even your median Democrat, but is not insane and seems mostly free of alarming baggage.  The most alarming things about him are (1) his hostility to Israel sometimes seems to bleed over into alarming territory and (2) he is closely associated with leftwing shock jock Hasan Piker.  On the strong side, he has a strong background in public health -- probably better than any current sitting Democrat in either house of Congress, and certainly better than any current Democratic Senator.  He has also, to all appearances, shown first rate administrative competence in managing the Detroit and Wayne County public health departments.

Assuming El-Sayed wins, the best strategy for Senate party leaders is obvious.  Put El-Sayed in charge of public health policy and, secondarily, have him work on administrative oversight.  These are his strong points and areas where Democrats would certainly have use for his talents.  Keep him out of foreign policy and national security, where he is most controversial and has no particular credentials.  In terms of committee assignments, put him on the Health, Education, Labor, and Pensions Committee and perhaps the Veterans Affairs Committee.  Healthcare is the Democrats' strongest policy area and El-Sayed no doubt has unique contributions to offer in that field (including veterans' benefits).  If that is not enough to keep him busy, the Homeland Security and Governmental Affairs Committee apparently has the sort of general administrative supervision role as the House Oversight Committee and handles general administrative competence -- another of El-Sayed's strong points.  But the leadership would probably want to keep him off the Foreign Relations Committee, the Armed Services Committee, or the Intelligence Committee.  These are the places where El-Sayed's views are most controversial, and where he has no particular expertise.*

And consider the implications of putting El-Sayed on the health committee.  If Democrats want to enact Medicare For All, El-Sayed is particularly well qualified to work out the practical details of making that a reality.  For anyone who is skeptical of the plan's feasibility, El-Sayed is particularly well-positioned to figure out if it is practical, and to extend Medicare to all if it is practical, or to convince Bernie Sanders et al if it is not.

But even that is not El-Sayed's biggest attraction.  His biggest attraction is that if he serves on the Health, Education, Labor and Pensions Committee, he will have oversight over RFK, Jr.  And that means that El-Sayed will be able to ask RFK, Jr. questions and make him squirm like we have never seen him squirm before.  Now, that's worth crawling over barbed wire and broken glass to see!

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*Interestingly, his opponent, Mike Rogers, does have a strong background in these areas and probably would get these committee assignments, but not any healthcare assignment, if elected.  But, after all, there is nothing wrong with two rival candidates for Congress having different areas of expertise.

All Elections Matter

One of the things that distinguishes the US from any other country is our extraordinary number of elective offices -- almost 500,000!  No other country anywhere in the world has anything approaching that number of elective offices.* In a midterm election year it often seems that there is some sort of election taking place in the country every week -- an exaggeration, but not all that much of an exaggeration if one counts special elections.

And here is the thing to keep in mind -- all those offices matter.  Much of the day-to-day business of governing takes place at the local level.  Local officials control law enforcement, school, road maintenance, land use regulations, etc.**  Many have argued that Democrats' great mistake when Obama was elected was to put all their eggs in the Presidential basket -- to assume that once we elected a President, everything else would fall into line.  That is not just a serious misunderstanding of the nature of government in the US, it is an ultimately authoritarian outlook.  It assumes that power flows from the top down and that the person at the top can dictate terms for everyone else.  

Putting all our eggs in the Presidential basket proved a disaster.  Republicans won sweeping victories at all other levels.  Democrats have learned some things from the experience and focused more on Congress and Governors.  Democrats are only beginning to start seriously competing in state legislatures and state Supreme Courts.  But that, too, still focuses on the tip of the governmental iceberg. It ignores the vast array of local governments that account for the great majority of elective offices (see below).

Not only do we have an immense number of elective offices, but all of those offices are important.  Governors certify election results.  They also decide whether to put their State Police at the disposal of ICE (I'm look at you, Texas and Florida).  Secretaries of State (usually elective) certify election results and set regulations governing elections.  Attorney Generals (usually elective) can sue to block Trump's latest outrage -- or not.  State legislatures set laws governing elections.  They also pass laws mandating or forbidding sanctuary policies.  They can pass Medicaid expansion -- or not.  They can move at least to some degree to fill the gaps Federal funding and regulatory cuts have left -- or not.  

Counties in the US

And that is just at the state level.  County Clerks (usually elective) actually run elections and count the votes.  There have been isolated cases of resistance to certifying results.  Expect more.  Where state sanctuary laws are silent or ambiguous, decisions can be made by county sheriffs (usually elective), city councils, and city police chiefs (usually hired by the elective government).  Don't forget, counties in the US are generally geographic, rather than demographic, units.  This means that most counties are rural and (presumably) elect Republican officials.  

My focus has been here has been on elections and sanctuary laws, but a local government can affect a wide variety of other issues, from data centers to school curriculum to school transgender policies (not my cup of tea, but important to others on our side).  

In short, it can seem frivolous to focus on local offices and policy when our democracy is at stake.  But local offices and policy are democracy.  Much of it is dull and mundane, but such is life.  Furthermore, these local offices are the "bench" that the party draws from to recruit candidates for higher office.  Democracy is safe only if Democrats learn to stop ceding vast parts of the country to Republicans and become competitive everywhere.  The scale is daunting. But the time to start is now.  Because if we wait, it will be too late.

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*And, yes, I understand that a country as large as the US will necessarily have more elective offices than a smaller country.  But US citizens choose from a longer ballot than voters anywhere else.
**At we approached the 2024 elections and a Donald Trump victory seemed inevitable this was my one source of hope.  Political power in the US is extremely diffuse.  Local government offers an immense number of points of resistance.  The Federal Government's super power is the money it dispenses.  The best way I could think to prepare for Trump was to audit budgets and plan for how to get by if federal funds were cut off.

Since I Can't Seem to Let Go of That Bone

 

OK, since I just can't seem to let go of this one, let explain in different terms why transgenderism is engendering such resentment.

Suppose we concede two of transgender activists' main points:

1. Gender identity should always override biological sex in determining a person's gender (i.e., their status as male, female or other).
2. People are making much too big a deal of this, since only 0.6% of the population is transgender.

And yes, I get that both propositions are controversial,* but if we concede them for the sake of argument, it actually goes a long way toward explaining so many people's resentment of transgenderism.

Quite simply, the 99.4% of the population that is "cisgender" resents having to rework the language, and often more than the language, to accommodate the sensibilities of 0.6% of the population.  If gender identity and biological sex match 99.4% of the time, treating then as synonymous is a reasonably good working generalization and rare exceptions can be treated as, well, rare exceptions.

Consider current activist demands.  Activists object to the term "pregnant woman" because 0.6% of all pregnant persons may self-identify as male.**  They object to treating abortion as a women's issue because 0.6% of all persons seeking abortions may self-identify as male.**  They object to saying "mother" or "mom" and insist on "birthing person" or "birthing parent" because 0.6% of all people who give birth may self-identify as male.** Some activists object to listing a baby's biological sex on their birth certificate because it might clash with their gender identity 0.6% of the time.  And some urge people not to make any assumptions about a potential sexual partner's genitals because they might get it wrong 0.6% of the time.  Some go further and insist that we not take genitals into account at all in choosing a sex partner.  A few urge parents not to tell their children whether they are a boy or girl because that might be wrong 0.6% of the time and children should be free to "choose" a gender.

Simply put, we are asked to treat biological/natal sex and gender identity as completely separate and unrelated matters even though there is a 99.4% correlation between them.  Then, any time ignoring the distinction raises practical difficulties, we are supposed to dismiss those difficulties as insignificant because, after all, the difficulties only apply 0.6% of the time.  

That is a lot of mental gymnastics for 0.6% of the population to demand of the other 99.4%.

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*Obviously, the whole question of gender identity vs. biological sex is controversial, but the rate of transgenderism is also controversial.  In particular, many people suspect that activists are pushing way too many people to identify as transgender.  But I will ignore that for the sake of this argument.

**Probably less, since taking cross-sex hormones can have the effect of reducing fertility.

Is There a Conservative Case for Transgenderism?

 

Go ahead and call it a ridiculous question, but if transgender activists ever want broad social acceptance, they had better figure out the conservative case for it.

The case of gay marriage is instructive.  Gay marriage was once considered a radical, extremist notion.  It has since gained broad acceptance.  And I think the reason is that the conservative case for gay marriage has always been there.  When gays first came out of the closet, they were not widely accepted and tended to live in gay ghettos, engaged in unrestrained promiscuity and extravagant lifestyles.*  What ultimately led to widespread acceptance of gay marriage was its underlying conservatism.  It meant that a same sex couple could integrate into the general population and live a convention life -- except for being a two-husband or two-wife couple.  

The next big battle was over who could be compelled to participate in a gay marriage and led to massive controversy over cake bakers, photographers, website designers and the like.**  The Supreme Court actually reach a very satisfactory resolution and persuaded champions of gay marriage by appealing to a basic liberal principle -- that no one should be compelled to engage in speech they disagreed with.  Anyone merely selling prefabricated wedding materials must sell to all comers, but if there was an "expressive" element, such as a written message, no one could be required to take part.  The controversy ceased.

And consider the biggest change to come out of Black Lives Matter -- police wearing body cameras.  I assume that this has become widely accepted because the police ultimately concluded it was not anti-police, or at least not inherently so.  No doubt body cameras deter a certain amount of police misconduct and make it easier to prosecute when it does happen.  Police cameras also clear the police of false accusations of misconduct.  They reinforce evidence of crime.  And the footage can be useful simply for refreshing memories and making sure stories are accurate before going into court.  

So, my advice to anyone wanting society to make a clear rule that gender is a matter of subjective self-identification had better figure out the conservative case for it if they want to make it stick

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*Then AIDS came along and wiped the whole lifestyle out, but that is a different story.
**The one group everyone agreed could not be compelled to participate was the clergy.

Transgenderism and Polydactyly

 

To understand what normies (myself included) find so annoying about transgenderism, consider the case of polydactyly (having more than five fingers). Rates polydactyly are similar to rates of intersex development.  For polydactyly it is between four and twelve per 10,000 births (one in 2500 or .04% to one in 833 or .12%).  For intersex development estimates range from .018% to .05% to as high as 1.7% if one counts exceptions to the XX or XY chromosome rule.  

Certainly, I agree that intersex babies should not receive surgery without their informed consent to force them to be male or female.  Likewise, if a movement arises among polydactyl people to stop amputating a sixth digit and to treat polydactyly as a variant on normal rather than a deformity, I would support it.

At the same time, I also think that acting as if everyone has five fingers -- or as if everyone is male or female -- is a perfectly good working generalization.  I do not share the view that all generalizations are bad.  Generalizations are necessary to our understanding of the world.  They become oppressive only when people stop treating generalizations as general rules with some exceptions and instead treat them as absolutes that everyone must be forced to conform to.   Some people are polydactyl.  Some people are intersex.  Some people are transgender, which is not the same as intersex, even if people sometimes conflate the two.

It oppresses polydactyls to treat them as social outcasts or bar them from opportunities offered to everyone else or make fun of them for being different.  It may arguably oppress polydactyls to amputate the sixth digit or call the condition a deformity.  But it does not oppress polydactyls to generally not think about them and to simply assume that everyone has five fingers.  I don't think this is verry controversial.

I am left-handed myself and sometimes resent the degree to which things are built with the assumption that everyone is right-handed.  I wish more desks had an extension to write with the left hand, left-handed scissors were of better quality, and so forth.  But there are some activities (playing a string instrument, driving a car with a manual transmission) where left-handed people just have to suck it up and adapt.  Likewise, no doubt there are things that can be done to make society more accommodating to people with six fingers.  

But now suppose that polydactyls went beyond calling on everyone not to treat polydactyly as a deformity or amputate the sixth finger, or even make, say, hand grips easier for people with six fingers.  Suppose polydactyls demanded that other people not refer to the hand as having five fingers because it "says that we don't exist," "erases our existence," and is even "genocide."  Suppose polydactyls cried oppression when Sesame Street had characters sing, "Oh, I've got five fingers on my left hand.  Five fingers on my right."  Suppose they insisted that anatomy classes stop teaching about hands with five fingers and insisted that they teach five or six.  Suppose they denounced terms like index finger, middle finger, ring finger, and pinkie as oppressive because they exclude people with six fingers.  Hell, suppose the more radical ones even demanded the end of Base Ten as oppressive to people with twelve fingers.

Don't you think that this would engender a certain degree of resentment among the vast majority of the population who have five fingers?  In short, asking not to be mocked and treated as social outcasts is a thing every liberal should get behind.  Asking to be treated as equals is a just demand.  Asking for some degree of accommodation from society is reasonable.  But there are limits to how far society can reasonably be asked to go to accommodate a miniscule portion of the population.  At the very least, the degree of accommodation is a proper topic of democratic debate.  And for a minuscule portion of the population to demand that the broad society rearrange itself to accommodate them, and treating every demand as a matter of basic human rights that permits no compromise is a sure-fire way to incur the resentment of people who otherwise would be willing to live and let live.

Some Unfashionable Thoughts on Transgenderism

 

I have no idea where to find the quote, but someone commented the one of the left's least endearing behaviors was a tendency to stake out a radical and highly controversial position and treat it, not just as settled fact, but as something no right-thinking person could dissent from.  

Such was the case with gay marriage; such is the case now with transgenderism.  Rod Dreher once commented on gay marriage that liberals would always dismiss the matter of whether people could be compelled to take part in a gay marriage as too minor an issue to be upset about, to why he would respond that if it is such a minor issue, why are you unwilling to concede it.

Much the same applies to transgender sports.  People on our side dismiss it as such a minor issue as not to be worth getting upset about, mostly because the numbers are so small.  But somehow, they are never willing to concede this very minor issue.  

When people get so worked up about so minor an issue, with neither side willing to make any concessions, it strongly suggests that the minor issue is the tip of the iceberg, standing for something much larger.  In this case, the real underlying issue is how one defines gender at all.

To avoid confusion, let me clarify my terms.  For purposes of this discussion, I will use the following definitions:

Gender:  The state of being a man, woman, boy, girl, male, female, or whatever other gender one can come up with, regardless of how that state of being is defined.

Sex/biological sex:  A biological and medical classification as male, female or intersex.

Natal sex:  Biological and medical sex at birth, as defined by one's genes and reproductive system.

Gender identity:  One's subjective sense of one's own gender.

The real issue underlying the question of transgender athletes is whether gender (the state of being male or female) is defined by objective biological and medical facts, or by subjective state of mind.  In other words, is gender determined by natal sex, biological sex or by gender identity.

This frequently gets conflated with another issue -- whether biological sex is binary or a spectrum.  The underlying assumption, seemingly accepted by both sides, is that if biological sex is binary, then gender must be determined by objective biological sex, but if biological sex is a spectrum, then gender identity must prevail.  I don't see that this follows at all.   

Let's start with some basics.  Intersex people exist.  This is not seriously disputed.  People disagree how exactly being intersex is defined, some defining it more broadly than others.  Certainly, there are edge cases that are not easily classified as male or female.  Some people say that even these edge cases can still be classified as either male or female depending on whether their gonads are geared toward producing eggs or sperm.

I say, so what?

Most transgender controversies do not involve these edge cases.  They involve cases in which gender identity conflicts with clear-cut natal sex. 

I do not see it logically follows from the existence of some edge cases that do not readily classify as biologically male or female that being male or female is always and necessarily a matter of subjective identification rather than objective biology.  

It is perfectly possible to believe that:

1. Intersex people exist;
2. Reasonable minds can differ on how intersex is defined;
3. Some edge cases don't readily classify as biologically male or female;
4. Outside of this very small number of edge cases, being male or female is nonetheless a matter of objective biology.

I suppose it is also possible to believe that:

1.  Biological sex is defined by gametes and is binary;
2. Gender exists independent of biological sex and is subjective.

Next point:  Intersex people have been around for a long time.  Whether to classify them as legally male or female has been seen as important because historically, men and women have not been equal in the eyes of the law, so the individual's rights depended on classification.

Well, our society views things differently.  We see men and women as equal, except in certain matters where biological and medical status compels a distinction.  Women used to be denied the right to vote, to own property, to contract and sue, to serve on juries, etc. etc.  And well after that, women were denied credit cards, car rentals, certain types of jobs, etc.

We don't take that viewpoint anymore.  We believe that men and women should be treated equally in employment, housing, access to credit, etc. etc. In other words, in most contexts, we have concluded that it should not matter whether one is biologically or medically male or female, they still should have the same rights.  And in such cases, one doesn't really have to worry too much whether we equate gender with subjective self-definition or objective biology.  Either way, transgenders should be treated the same as anyone else.

Admittedly, equal legal and commercial rights are not the whole picture.  Men and women may be legally and commercially equal and still be socially treated differently.  Examples might include what subjects it is acceptable to discuss, how expansively one expresses one's self, what jokes may acceptably be told and the like.  Inn terms of social interaction we might treat men and women differently, but the difference is based on outward presentation, rather than biology.  In other words, transgenders who present as their gender identity rather than their natal sex can reasonably receive the sort of etiquette that is normal for their gender identity.  Bodies are still not what matters.

But there is simply no denying that there are times when bodies do matter.  Examples might include sports, changing rooms, other places where nudity is common, rape crisis centers, medical care, prisons, or sexual relationships.  These things are still sex-segregated, even to this day, because bodies and biological status really do matter, and because it really is significant that men are bigger and stronger than women and women need to be protected. 

So far as I can tell, the usual transgender response in those cases is distinguish natal sex from biological sex.  Yes, there are biological and medical differences that give men an advantage.  Those differences are the result of hormones.  Taking hormones removes the advantage that natal males have over natal females.  I am a little unclear whether that means that natal males turn into biological females when they take female hormones, or that biological sex can be rendered irrelevant by hormone treatment.  But so far as I can tell, most transgender advocates don't parse these fine points.  They simply say that transgender women are women and to question that is a violation of the most basic human rights.

In other words, they are taking a radical and highly controversial position and treating it, not just as settled fact, but as something no right-thinking person could dissent from.  And, as mentioned at the outset, this invariably leads to major resentment.

Recent Supreme Court Decisions for Trump, Also in Ascending Order of Importance

 

So much for the Supreme Court decisions that went against Trump.  What about the ones in his favor?

Going from least to most important:

West Virginia v. BPJ

This one allowed states to bar transgender athletes from girl's and women's sports. Democrats have usually kept quiet on this one. And my response is, fine!  It may not be a fashionable view on my side of the aisle, but there are biological and medical differences between males and females that current medical technology cannot overcome.  One of our side's arguments that there is no need for rules because the numbers are so small.  But the numbers are not zero.  The cases in controversy involved actual individuals in that situation.  Another argument is there is no need for a national rule, and it should be locally decided.  Which is fine.  The Supreme Court does not say that states must ban transgenders from female sports, only that they may.  And they left undisturbed a prior decision that bars employment discrimination against transgenders on the perfectly reasonable ground that employment and sports are different.  The dissent would not impose a categorical rule but would require schools to decide on a case-by-case basis.   The majority allows decisions on a case-by-case basis but does not require it.  Fine by me.

National Republican Senatorial Committee v. Federal Election Commission

This case struck down a longstanding rule limiting the ability of political party organizations to coordinate with and spend money on individual candidates, so long as donations to parties are not earmarked for one particular candidate and are properly disclosed.  The basis of this ruling is First Amendment freedom of speech.  I am somewhat ambivalent on this one.  The immediate effect would be to give the Republican Party an advantage in spending on its candidates, since it has larger (much) war chest than the Democrats.  I do not think it is too cynical to believe that this fact may have played into the Supreme Court's decision.  On the other hand, the decision comments, and I agree, that a lot of our current problems are the result of the weakening of political parties and their takeover by interest groups.  A stronger party structure would probably have screened out Graham Platner, for instance.  On the Republican side, a stronger party structure might have stopped Ken Paxton or Victor Marx.  To say nothing of you-know-who.  Weakening of parties and their takeover by interest groups has undermined democracy  in other countries.  Activists have a longstanding tendency to see themselves as the voice of the people simply because they are not political insiders.  But political insiders are often closer to the median voter than activists.  Party hacks are also less likely to see opponents as enemies and policy disputes as existential struggles.

At the same time, I can see other objections here.  One is that US democracy really is facing an existential struggle and ordinary rules do not apply.  Another is that our parties are weakened past all recovery.  And finally, the Supreme Court now is saying that our politics may be improved by allowing closer coordination between candidates and parties.  But how long before they decide that the First Amendment also compels coordination between candidates and interest groups?  Just for the record, I don't think our political parties are unsalvageable, at least not yet.  The reason activist are so angry at party hacks is that party hacks still have significant power.  On the other hand, I do think we are facing an existential crisis that saying this will work out well in the long run is useless if our democracy is overturned in the short run.  And I don't trust this Supreme Court as far as I can spit.

Markwayne Mullin v. Al Otro Lado

This case ruled that asylum seekers have no right to apply for asylum until they physically enter the US.  The practical upshot of this is that the Trump Administration can kill asylum altogether by closing the border and physically keeping out people who otherwise had a good claim.  The majority stuck to the polite assumption that this was merely a policy of "metering" -- requiring asylum seekers to enter the country at a manageable pace.  The dissent pointed out that in reality, it is used to prevent any asylum applications whatever.

Look, some sort of "metering" is going to be necessary to prevent the sort of all-out border chaos that brought Trump to power in the first place.  In his first term, Trump's ultimately successful approach to border control was the "remain in Mexico" policy, requiring asylum seekers to wait in Mexico while their claims were processed.  The results were brutal.  Asylum seekers waited in squalid conditions, often without adequate food or shelter, preyed upon by roving gangs. But, so far as most Americans were concerned, out of sight, out of mind.  

My view when Biden came to power was that he should keep this policy but make it more humane by offering some sort of protection and basic sustenance to people waiting -- enough to avoid a humanitarian crisis, but not enough to encourage people to show up who did not have a valid claim.  Instead, he ended Remain in Mexico without putting anything in its place, resulting in an uncontrolled flood of entries.  In an effort to control the border, Biden attempted an alternative -- allowing people to apply for asylum from third countries and be admitted in an orderly fashion if approve.  Naturally this was unsatisfactory to hardcore MAGA types who regarded any immigration as unacceptable.  It came too late for more moderate types and was easy to conflate with the border chaos.  If Democrats ever again have the opportunity to make immigration policy, it seems to me that the only way to balance the need for border control with basic humanitarian concern is to allow for application from outside the country.  This may require changing existing law.

Allowing the President to halt the entire asylum system by physically blocking applicants violates the spirit, if not the letter, of the law.  It is, however, the sort of power the Supreme Court would willingly entrust to a hypothetical future Democratic Administration because they are most unlikely to use it. And it is not the Supreme Court's worst opinion in the recent batch because it merely ratifies the existing situation.  At least it does not make things worse than they already are.

Mullin v. Doe

Worse than the Supreme Court's ruling the President can blow up the entire asylum system, which at least merely ratified what was already in place, was their ruling that he can also kick out anyone with Temporary Protected Status (TPS).  The majority explained by way of background that long before the relevant statute was enacted, Presidents had been granting relief from deportation to people from countries that were experiencing a major humanitarian crisis.  The status was also revocable at will and not subject to any oversite whatever.  Finding that this gave the President too much unbridled discretion, Congress enacted a statute setting forth specific procedures to be followed.  The Secretary of Homeland Security must consult with the relevant agencies about conditions in the country, review their findings, make a decision and publish it in the Federal Register.. At the same time, the statute declares TSP findings to be unreviewable.  What are we to make of that?

The majority held that unreviewable means that following the necessary steps is really optional.  If a Secretary of Homeland Security (Kristi Noem, say) skips the necessary review there is nothing anyone can do about it.*  The dissent argued that even if the final decision is unreviewable, the court can order the Secretary to go back and at least comply with the mandatory procedures.  I am not sure how useful this is if the Secretary can do the mandatory review of records and then simply ignore the evidence!  The plaintiffs -- Syrian and Haitian refugees -- argued that Trump violated their equal protection rights under the Constitution because he was excluding them because of their race.  The majority said nonsense, Trump simply doesn't like the law that protects immigrants whose home country is unsafe and decided to ignore it.  So apparently a Republican President is free to disregard any law he dislikes.  Clarence Thomas, in a concurring opinion, said that non-citizens have no constitutional rights, and that the Equal Protection Clause only applies to states and the federal government is free to do all the racial discriminating it wants to.  (No wonder some people see him as self-hating!).  The dissent pointed out some of the things Trump has actually said about Haitians -- comments so vulgar the majority could not bring itself to repeat them.

And then, of course, there are the real-world consequences of the decision, which the majority prided

itself in ignoring.  The Supreme Court gives the green light to stepped-up ethnic cleansing.  No Haitian is now safe.  And the harm is not just to Haitians living in the US.  Our home health and nursing homes in Florida and Ohio have come to rely heavily on Haitian labor.  I have thought for some time that nothing would make Trump's ethnic cleansing more unpopular than the sight of ICE raiding nursing homes and arresting people who change granny's diapers.  So why isn't there a huge outcry over this?  Granted, seniors in nursing homes are not a powerful interest group.  But what about the nursing home industry?  What about family members of seniors in nursing homes?  What about the AARP?  Why aren't any of these groups screaming bloody murder?

Still, bad as this decision is, it could worse.  For one thing, it seems compatible with the Supreme Court believing a Democrat might be President again some day.  No doubt they think this power can be safely entrusted to a Democrat because they would never use it.  It is also a matter of statutory interpretation rather than constitutional mandate.  Other executive actions are still subject to judicial review.  The statute really did say that the Secretary of Homeland Security's determinations are unreviewable.  What can be enacted by statute can (hypothetically) be overturned by statute.  Incredibly, the House of Representatives has actually passed legislation extending Haitians' protected status.  Hypothetically the Senate could pass it too.  Needless to say, it seems vanishingly unlikely given (a) the super-majority requirements of the filibuster and (b) that Congress will be out of town during August, will spend September trying to avert a government shutdown, and then will take off during October to campaign.  But I suppose it could come up for a vote if the AARP, the nursing home industry, and others raise a big enough stink.  And if Florida and Ohio Senators (all Republicans) support such legislation, maybe they will give enough other Republicans a permission structure.  Needless to say, Trump would never sign such legislation, but he doesn't have to.  He can simply let it become law without his signature.

Alas, all of this seems most unlikely, and the consequences of mass deportations will be devastating, both for Haitians and for the US.  But still this was not the worst decision.

Trump v. Slaughter

This is the one that threatens to overturn the rule of law altogether, and that strongly suggests the Supreme Court never expects a Democrat ever to be President again.  

Congress has created a number of multi-member regulatory commissions, including the Federal Trade Commission, that it requires have a mixed number of Democrats and Republicans and shields from being fired by the President.  In the case of the Federal Trade Commission (FTC), there are five members -- two Democrats, two Republicans, and a chair chosen by the President. By picking the chair, the President's party is able to have a majority.  Members serve seven-year terms and cannot be removed by the President except for "inefficiency, neglect of duty, or malfeasance in office."  All nominees must be Senate-approved.  This arrangement, it must be noted, goes back to 1914.

The Constitution gives the President power to appoint heads of executive departments, subject to the advice and consent of the Senate.  It is silent on who has authority to fire the heads of executive departments.  The First Congress vested that power solely in the President and, despite some attempts to limit that power, it has generally been accepted as belonging solely to the President until the FTC was created in 1914.  The Supreme Court first ruled on the issue in 1926 -- twelve years after the creating of the FTC -- by upholding the President's unrestrained power to fire federal executive officials.  However, in 1935, the Supreme Court carved out an exception in the case of multi-member commissions exercising quasi-judicial powers.  The Supreme Court's primary concern at the time, it should be noted, was limiting President Frankin D. Roosevelt's power to fire Hoover appointees.  Since then, Congress went on to create numerous other independent, multi-member agencies required to be bipartisan and limiting the President's power to fire members.

The Supreme Court swept all of this aside and gave the President unlimited power to fire members of such commissions.  In favor of this decision, the Supreme Court argued that all executive power vests in the President, the FTC is an executive agency, and its power must therefore vest in the President.  It also offered various historical arguments -- the Founders vested all executive power in a single official despite bad experience with King George; the states had attempted having executive councils in place of a single official and it did not work well; despite the Constitution's silence on who had power to fire executive official, the first Congress vested that power in the President alone and subsequent Congresses refrained from changing the rule for a long time, so the original statute is incorporated in the Constitution.  And Chief Justice Roberts left open that possibility that at least some non-executive officials can be protected from being fired by the President.  The Supreme Court has made fairly clear that it does consider rules protecting the Federal Reserve from being fired by the President to be constitutional, a position that Roberts reiterates.  He also mentions non-Article III federal judges, i.e., specialty judges who do not have life tenure.

Limiting the decision to multi-member boards is bad enough.  It means that the President can fire any member of such a board whose actions displease him.  The obvious example is the Federal Communications Commission (FCC), where Chariman Brandon Carr makes a regular practice of threating the licenses of television stations that run news that displeases Donald Trump.  Slaughter authorizes Trump to fire all other members of the FCC and replace them with Brandon Carr clones, and even to issue directives to the FCC to pull licenses of such stations and fire anyone who refuses to comply.  And it just might get worse.  

The opinion is studiously silent on whether any Civil Service protections from firing pass constitutional muster, even though the Supreme Court has upheld such protections since 1886.  Even if the Court has not removed Civil Service protections, one multi-member commission is the one that decides whether removals of government employees comply with Civil Service protections.  Slaughter now authorizes Trump to fire any member of the Merit Systems Protection Board who rules against him, thereby seriously undermining Civil Service protections to begin with.  But at least such decisions are subject to judicial review.  Slaughter invites challenge as to whether the Constitution allows any civil service protections at all.  While the article I am citing focuses primarily on how undermining or eliminating Civil Service protections the danger is much worse.  It means that Trump can order public employees to take illegal actions and fire everyone who refuses.  Since the President's power of pardon federal crimes under the Constitution is absolute, and since the Supreme Court has already given (Republican) Presidents immunity from prosecution for public acts, this decision poses a mortal threat to the rule of law.  And, even worse, it invites challenge to see whether the President can fire judges who are not life tenured.  

And here is the most alarming part of all.  The Supreme Court originally upheld multi-member commissions protected from firing to restrain the power of a Democratic President.  The Roberts Court has now removed that rule in order to enhance the power of a Republican President.  It seems unlikely that they would entrust a Democrat with such a power, any more than the Court was willing to do so in 1935.  And I do not see any way the Supreme Court can hedge in order to uphold such firings by a Republican and reject them by a Democrat.

That can only mean that the Supreme Court is confident that Trump has successfully rigged the system to ensure that no Democrat can ever by President again.

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*Presumably they would not have upheld the rule if she had failed to publish, or how would anyone know it was a rule at all? 

Recent Supreme Court Decisions Against Trump, in Ascending Order of Importance

 

So, what do I make of the recent spate of Supreme Court decisions?  A mixed bag, some not so bad, some truly alarming, some important and some unimportant.  I generally share the view that they decided against Trump on small things and for him on the things that matter.  But let's dive in.

Against Trump, in ascending order of importance

Watson v. Republican National Committee.

This decision upheld a statute (in Mississippi) that allowed mail-in ballots that arrive up to five days after the election to be counted so long as they are postmarked by election day.  Our side is celebrating this as a big victory.  I honestly don't think it is all that important.  Nice to have, sure, but not all that essential. Many states require mail-in ballots to be postmarked by election day, and their elections seem to work well enough.  Allowing late-mailed ballots to be counted is a major factor in California's delays in counting votes.  Yes, I know Republicans' claims of fraud are in bad faith, and that if California counted its votes faster, they would just find some other excuse.  But the long delays in knowing election outcomes in California really is a problem.  If I could trade this decision going Trump's way for some other decision going against him, I would gladly do it.*

Trump v. Carroll

The Supreme Court declined to hear Trump's appeal of the civil verdict against Trump accusing him of rape.  On the one hand, this seems like a small matter.  On the other hand, the Supreme Court has already given Republican Presidents and all-out license to crime.  I suppose we should be glad it has at least declined to immunize them from civil liability, at least for actions before they were elected.  Let's be grateful for small favors.

Trump v. Cook

The Supreme Court stayed the removal of Lisa Cook from the Board of Governors of the Federal Reserve.  It did not permanently bar her removal, merely kept her in office pending determination.  It held that (1) the government had not shown it was substantially likely to prevail on the merits; (2) the requirement that removal must be "for cause" does not mean that "for cause" is within the President's absolute and unreviewable discretion; (3) they declined to define "for cause" except to say that the national bank must be shielded from political influence; (4) staying removal pending determination of whether sufficient cause exists is necessary to shield the Fed from political influence; (5) some sort of (ill-defined) notice and opportunity is required to determine whether "cause" for removal exists; (6) the Constitution allows members of the national bank to be so shielded.  They then kicked the case back to lower courts to determine whether removal was "for cause."  

Look, if you want to be cynical -- and I do -- Supreme Court expansions of Presidential power should be read under two considerations (1) would they entrust this power to a Democratic President, and (2) if not, have they included an escape hatch to allow them to deny the power to a hypothetical future Democratic President.  The Supreme Court would probably be willing to entrust a Democratic President with the power to refuse to spend money appropriated by Congress because of a certain asymmetry there.  Withholding funds appropriated by Congress is something that Republican Presidents want to do and Democrats do not.  By contrast, when the Supreme Court gave the President immunity from criminal consequences for anything in his public duties, they left just enough wiggle room to allow criminal prosecution if a Democrat ever becomes President again.  Sure, it is grossly cynical and hypocritical, but at least it means the Supreme Court is leaving the door open to the possibility of a Democrat in the White House at some time in the future.   It is when the Supreme Court grants an unqualified power that is symmetrically just as dangerous in the hands of a Democrat as a Republican that we really have to be alarmed.  It means the Supreme Court is confident that the fix is in and no Democrat will ever be President again.  (More on that later).

Something similar applies to restrictions on Presidential power.  In this case, power to shape monetary policy looks like something the Supreme Court wants to deny to any President of either party.  If elective government can control monetary policy, the result is always the same.  They will avoid difficult fiscal decisions by using monetary policy to finance expenditures -- in simply English, they will finance operations by printing money, with resulting inflation.  The temptation applies even to Republicans who say they want massive cuts in spending but never seem to follow through.**

Trump v. Barbara

Upheld the rule that all persons born in the US are citizens, even if their parents are temporarily or unlawfully present, with the exception of children of foreign diplomats or other people present as agents of a foreign government.  Chief Justice Roberts defended this position by saying it is a longstanding rule of common law.  (Conservative jurists traditionally see common law as something sacred an inviolable, though apparently they make an exception in this case).  This ruling merely upholds a longstanding rule that has been around longer than anyone  alive today, but man, oh man, oh man, oh man, right wingers are freaking out about this one.  They appear to be taking the defeat on ballot counting in reasonably good grace, but their freakout over upholding a longstanding rule on birthright citizenship is a wonder to behold!  I can only assume it is an attempt to intimidate.  It also makes clear just how much bigotry underpins much of Trump's following.

Chatrie v. US

This one has not attracted all that much attention.  It has been mentioned as attention as the others, although it has occasionally been mentioned as a victory for privacy advocates.  But actually, thinking it over, it may be the thin end of a very large wedge.  The amount of data tech companies can sweep in on basically anyone, any time, is by itself alarming.  But at least tech companies don't have the power to arrest you and engage in the other types of coercion available to the state. We need rules constraining government's use of all that data out there, and we need it in a hurry.  The first step in that direction was apparently the case of Carpenter v. US, holding that tracking cell phone location is a search requiring a warrant.  Chatrie expanded that rule to so-called "geofence location" -- a request for information on which cell phone were within a certain radius of a certain location within a certain timeframe.  Police seeking to use this technique to solve a crime (in this case, a bank robbery) follow a three-step process.  First they get a geofence warrant for anonymous information about who was in the area of the crime around the time of the crime.  Next, the police seek more extensive, but still anonymous, information about a subset of the phone signals collected.  Finally, they narrow the information down to a small number of suspects and ask for their personal information.  

The Court held that all of this was a "search" requiring a warrant, and that the limited duration of time did not make it any less of a "search."  The owner of a cell phone does not waive the right of privacy by sharing location information with a third party (the service provider).  But searches are not banned by the Fourth Amendment, only "unreasonable" searches.  In this case, after all, there was a clear crime, and a warrant.  The Supreme Court punted on that issue and sent it back to the Court of Appeals to determine what sort of warrant meets the standard of "reasonable."

But the point is, they decided that there does have the be a specific crime, a warrant, some sort of individual and particularized suspicion and not a general dragnet.  Compare that to overall ICE trawling operations.  Maybe, just maybe, this gives us a tool to fight back.

Next up: Decisions for Trump, also in ascending order of importance.

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*There may be thin end of the wedge arguments here, that the Supreme Court would use requiring ballots to arrive on election say as preliminary to a general attack on voting by mail.
**The cuts that have been made so far, though extremely damaging to specific programs do not touch the actual bulk of the budget -- Social Security, Medicare, and military spending -- and therefore do not cut spending in any meaningful way.

OK, I Lied

 

OK, I lied.  I wanted to get my posts on What if Trump Wins wrapped up before the Semi-quincentennial, since the book seems to assume that our make-or-break moment will happen by then.  I said my goodbye.  But there is one thing I just can't stay away from -- what the authors envision as an alternative.  

They recommend four courses of action and comment that these may not be so distinct after all:

• Protect people being targeted
• Defend existing institutions
• Envision what comes after Trump or, alternately, build new institutions
• Strategic civil disobedience

I briefly considered how these categories overlap, in particular, the extent to which nearly all are actually building new institutions that the authors presumably would like to see outlive Trump.  My own conclusion was that the need for resistance would end if Trump is defeated, but the non-resistance activities would continue and (hopefully) become new institutions.  A few categories that authors do not classify as resistance also would probably not be expected to survive Trump.  That is a strong sign that these activities lap over into resistance.

But after I finished the series, another thought occurred to me.   Clearly Trump won because a lot of people are not satisfied with our institutions are they are.*  Which of these activities would have been worth doing even if Trump had lost.

Protect people being targeted.

If Trump had lost, there would still be people in need of help ant protection. The authors are proposing building institutions to do just that.  Would these institutions be needed if Trump has lost?

Mutual aid society.  The authors propose a mutual aid society that allows an elderly couple who can't afford to pay for a wheelchair ramp get one build by volunteers and pay it forward by offering music lessons.  It offers communal meals and assists immigrants scattered by ICE raids.  Is this something the authors would consider worth doing if Trump had lost?  My guess is hopefully the ICE raid would not have happened if Trump had lost, but the wheelchair ramp and communal meals would still worthwhile regardless of who is in the White House.  And regardless of who is in the White House, it is worthwhile build up such groups in one's local community so they have the opportunity to help out with disasters like fires, do communal tree planting, and visit seniors in retirement homes.  And regardless of who holds the White House, it is worthwhile for such organizations to build a national network so that communities experiencing disasters beyond their resources, like fires and floods, can get help from other communities. 

Joint emergency fund raising.  The authors correctly anticipate that Trump will massively cut funds for non-profits, and recommend that non-profits join forces to raise funds and pool resources, with a focus particularly on small, local non-profits that do not have large, high profile national fundraising networks.  Sounds like a good idea.  Would it be a good idea even if federal funds had not been cut?  I would say yes.  It is never a good idea to put too many eggs in one basket, including the federal basket.  The authors offer another reason why this would be a good idea, regardless of who is in the White House.  Governments (local governments included) and large foundations have slow, cumbersome vetting processes that are particularly burdensome to small organizations.  The authors see the need for a funding source that can move quickly, even if it leads to mistakes and mis-spent resources.  Although they do not say so, presumably the authors would want the joint fundraising network to rely on a non-profit's general reputation in the community instead.

Underground Railroad.  The authors envision an underground railroad moving immigrants and whistle blowers to safety.  (Where?)  Is this something that would be valuable if Trump has lost?  I am inclined to say no.  If Trump had lost, immigrants and whistle blowers would not be in the sort of danger they are in now.  The four categories are not so distinct, and this protects people and engages in resistance -- a resistance we would not need if Trump has lost.

Defend Existing Institutions. 

I believe and the authors foresaw that Trump poses an unprecedented threat to our institutions.  There are always people in need of help regardless of who is in the White House, so the difference is one of degree, rather than kind.  By contrast, the threat Trump poses to our institutions would not exist if he were not there.  So, defending institutions would have a lot less urgency if he had lost.  But at the same time, our institutions can always use bracing and improving.  And yes, I understand that Trump's appeal is largely because people have lost faith in our institutions.  Maybe if our institutions worked better people would like them more.

Organize veterans and their families.  There are already lots of organizations for veterans and their families.  The authors presumably intend some sort of organization to emphasis the need for the military to stay out of partisan politics and refuse unlawful orders.  And I do agree that a lot of our military rank and file are much too Trumpy.  Still, I just don't see the same danger if Trump had lost and am inclined to think this sort of thing laps over into resistance and would not be appropriate if Trump had lost.

Help the EPA as a citizen scientist.  Trump's attacks on regulatory agencies in general and the EPA in particular were wholly foreseeable, and the authors foresaw it.  I Trump has lost, the EPA would be in a lot better condition.  But still, it would be overstretched and could use the help of citizen scientists doing environmental testing and offering guidance on where the problems are.

Map of counties in the US

Elections.  On the one hand, there is really nothing wrong with our election system.  People are losing faith in elections, in large part, because of Donald Trump's bad faith attacks.  On the other hand, some degree of distrust is longstanding.  One of the reasons appears to be that elections are administered and votes counted at the county level. Each state is divided into counties mostly by geographical size, rather than by population.  The result of this is that vote totals are reached a lot faster in less populated counties, which tend to vote Republican, than in more populated counties that tend to vote Democrat, so Democrats show a regular tendency to overtake Republican in vote totals and Republicans believe the fix is in.  I am not sure what can be done about this, other than a vast expansion of vote-counting capacity in more populous counties, which would also be resented.  But voter education is one thing that might at least somewhat increase people's confidence in elections.  Certainly the authors believe that being able to demonstrate the "safety, security, and responsiveness of the election infrastructure" ahead of the election would be worth something.  So, if Trump had lost would it be worthwhile to build a nation-wide clearinghouse where election officials can see what grants are available and pre-qualify?  Obviously, yes.  In fact, the authors base this suggest on a survey and recommendations made during the Biden Administration.

Envision what comes after Trump.

These are the reforms that the authors favor.  They would presumably favor exactly the same reforms if Trump had lost, although the impetus for them would presumably be less.

Cultural grounding.  This one is also a bit vague.  It involves "healing circles" and musicians, body workers, poets, and healing practices.  The authors shed more light in this in the closing thoughts video, expressing the view that ultimately it is shifts in our overall culture that determine our future.  That seems reasonable.  And it would be equally important to make regardless of who is in the White House, even if dealing with Trump means greater urgency.

Constitutional Convention.  It seems a safe assumption the proposed reforms are things that have been circulating long before Trump came to power.  Suggestions include eliminating money from politics, limiting terms for judges and senators, ending secret holds and the filibuster, breaking apart the two-party system (how?), and creating a pathway to citizenship for undocumented immigrants.  These sound popular (except, perhaps, for that last).  The real-world consequences are hard to predict.  If you favor these reforms, you would probably favor them regardless of whether Trump came to power or not. Even the convention format is an option regardless of who is in the White House, though dealing with Trump might serve as a spur to action.

The authors also appear to advocate educating participants in other democratic processes as part of the convention.  They want to teach the public that democracy requires education and participation as well as representation.  And they want to teach participatory budgeting, which means first listening and learning, second making and discussing proposals, and finally voting on proposals.  The authors envision almost as many people turning out to the convention as to an election.  Although the book does not say so, presumably the authors envision people applying these lessons in other areas of their lives.  And all I can say is that I certainly agree that it would be valuable to teach people how our system of government actually works and how to listen and engage in rational debate.  Our country would be a whole lot better off for it.  I just don't know how feasible it all is.

I think the authors need to face the fact that there is a limit to how much democracy most people can stomach.  Democracy requires participation, after all, and most people have lives -- families, jobs, interests, and other things they would rather be doing.  And the activists who really want to devote their lives to participating often had beliefs well out of step with the general public, and often don't realize that.

Resistance.

This is the part that is clearly geared to our democracy being in danger and is generally not appropriate under more normal circumstances (such as if Trump had lost).

Paperclip Movement.  While it is somewhat unclear what this is, it appears to be a semi-secret organization of civil servants pledged not to obey any illegal or unconstitutional order.  We have -- or at least had -- a wide range of safeguards in place that were supposed to do this anyhow, such as civil service protections or whistle blower protections.  It is quite alarming how quickly Trump has managed to cast these aside and is treating the government as his own private police.  Maybe such and organization would be useful now, maybe not.  But if Trump had lost I think we could continue to rely on existing protections and such an organization would not be appropriate.

Strike committee.  The authors envision a general strike to keep Trump from stealing the election.  Desperate times call for desperate measures.  But the authors generally do seem to see the strike committee as long-term institution.  At least they endorse "a movement that keeps up regular protests and occasional strikes."  Um, I disagree.  The use of strikes as a tool of political pressure can lead to messy disruptions and ultimately rightwing backlash.  Yes, I understand that desperate times can call for desperate measures, and that planning and preparation is needed.  But I would not favor a strike committee if Trump has lost.

Tax resistance.  No.  We are getting into Sovereign Citizen territory here.  I would oppose it even in response to Trump except under the most extreme circumstances.  It would definitely not be reasonable or appropriate if Trump had lost.

In short:

I believe the non-resistance proposals all in one way or another are creating new institutions that would be valuable (though less urgent) if Trump had lost.  The resistance part is best seen as a response to Trump's threat to democracy and not appropriate under more normal circumstances -- either if he had lost or if he is defeated.  And I regard the underground railroad and anti-Trump military/veteran organizations as partaking enough of resistance that I prefer to reserve them for serious peril and not for more normal circumstances.

And now I really need to quit this habit.

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*Which is not to say I necessarily think these things could prevent future Trumps.  I think it is clear that a certain percent of his followers are simply bigots who can't stand the demographic changes our country is experiencing and want to reverse them.  Others are entitled assholes who can't stand the idea that rules apply to them.  But some are soft supporters who were just upset about the economy and others, I think, feel alienated by a sense that they are isolated and powerless, surrounded by huge institutions that don't care about them and that are out of their control.  I think some of these measures just might blunt economic hardship or give people a better sense of control in their lives.