Democracy is a Kitchen Table Issue

Photo by Ronaldo Schemidt/AFP via NPR.

From the TPM Morning Memo, a little vignette of presidential lobbying:

During an interview with CNBC this morning, Rep. Ralph Norman (R-SC) alluded to an assurance he received from Trump — that the president would fix whatever issues Republicans had with the legislation he wants them to pass via executive action.

“We met with President Trump, and, you know, he did a masterful job of laying out how we could improve it, how he could use his chief executive office, use things to make the bill better,” Norman said Thursday morning. “We accepted the bill as is. What’s different is President Trump is going to use his powers.”

Oh well, in that case. If he's going to use "his powers". Superstrength? X-ray vision? Spidey sense? Can he grow instant wolverine claws? 

I imagine he was talking about Article II of the US Constitution, of which he said during his first term, "I have an Article II that lets me do whatever I want." That's legally as ridiculous as it sounds—the specification of the "executive power" in the oath doesn't really mention powers so much as duties (to "faithfully execute the Office, and "preserve, protect, and defend" the Constitution), and the only explicit powers are those of making treaties, naming officers, and issuing pardons, all but the last with the advice and consent of the Senate. There's not even anything in Article II on the veto—that's in Article I, as a check on the Congress, as Article II has a congressional check on the presidency, in the procedure allowing them to be impeached and tried for "high crimes and misdemeanors". The way it really works in the system of checks and balances has traditionally been that each Branch can do whatever another Branch can't stop them from doing—Congress can stop the president through the impeachment process, the Supreme Court can stop him (if somebody sues) by examining the legality of his behavior, including whether it's constitutionally permitted or not. It's infuriating that we should even have to be talking about this, as if there were some possible universe in which Trump's assertion could be correct. But here we are.

I happen to have Alexander Hamilton right here with me...

Drawing by David Levine, New York Review of Books, 1964.

 

It's a little amusing that Roberts is citing Breyer there, in Clinton v. Jones, that's the Paula Jones case, where Breyer is arguing, in a unanimous decision (Democrat Stevens wrote the opinion), that Clinton was not immune (from civil lawsuits based on private conduct), in spite of the fact that Clinton was indeed the president at the time and the case was certainly "distracting his time and energy", the thing the Framers are said to have been so particularly tender about, and in spite of the fact that this was only the third time in American history that such a suit had been filed against a sitting president. Clinton had failed to prove, Breyer thought, that the US government needed for Clinton to have the immunity:

As Madison pointed out in The Federalist No. 51, "[t]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Id., at 321-322 (emphasis added). I agree with the majority's determination that a constitutional defense must await a more specific showing of need; I do not agree with what I believe to be an understatement of the "danger." 

It seems to me that with Trump v. United States the Court has turned this upside down, shifting the burden of proof from the offender to the offended. Henceforth (I once knew a cat called Henceforth, and a pretty good cat too), it will just be assumed that the president shouldn't be asked to answer any questions, even after they've left office, nor should his White House employees, even when they're glorified nursemaids for the cranky old psychopath, like poor Hope Hicks helping him ride his way through the scandal of the Access Hollywood video. She was part of the apparatus enabling Trump's "energetic, vigorous, decisive and speedy execution of the laws" when he was paying his hush money debt to Michael Cohen with $420,000 in checks disguised as legal fees so nobody would know about it, so it looks like her testimony in the New York case should not have been given, and his conviction now seems likely to turn into a mistrial, even though you'd be hard put to name any occasions when he executed any laws at all beyond his photo op bill-signing moments with the presidential Sharpie.

It would be fun to put that on trial, wouldn't it?  "Do you recall faithfully executing any laws in 2017, Mr. Trump? Can you list some of those for the jury?" But of course it's unimaginable.

It's also difficult to imagine a Supreme Court majority now citing Federalist 51, with its focus on checks and balances among the three branches, and Madison wistfully letting on how much he wished he could have had the president and Supreme Court justices directly elected:

Juneteenth

Recycled from a couple of old posts at the Substack:

 

Rubicon

 LOL.

As Tom Scocca was not the only one to point out, there was an actual Rubicon-crossing episode when Trump sent his irregular army of Proud Boys and Oath Keepers to the Capitol on January 6, 2021.

When Julius Caesar took a single legion, the 13th, across the river Rubicon, crossing the border just north of Rimini between Cisalpine Gaul and Italy proper, in 49 B.C.E. (a capital offense in Roman law, by the way—nobody but an elected official, consul or praetor, was allowed to command troops, i.e. to serve as an imperator, in Roman territory, and Caesar was neither; among the first things he did when he got to Rome was to have himself named dictator for the next six months by the Senate, and set himself up to be elected consul by the People as well), he launched the five-year civil war that ended with his unprecedented naming as dictator for life, and his assassination a few weeks later. It also ended, of course, with the end of the Roman Republic, which was to be transformed into an Imperium, a military autocracy, by his nephew Octavian over the coming years.

For the Record: What Was That Civil War About, Anyway?

 

Blacks in the Civil War. Until very recently, the list of Civil War casualties stopped about about 620,000 dead. but this was missing something like 130,000 Black combatants killed by Confederate and in some cases Union troops, and mostly by the same enemies that killed most of the white troops: pneumonia, yellow fever, and smallpox.

Some Lost Cause buffoon defending the original (1865) Ku Klux Klan in the course of yet another version of the beloved claim that the Civil War had nothing to do with slavery: 

"the southern people" meaning the white citizens, of course; the formerly enslaved being not people, or not southern, or both?

— Per Yaspera ad Astra (@Yastreblyansky) March 20, 2023

For the Record: Lankford on Pronouns

 UPDATE AT BOTTOM

Oklahoma senator James Lankford's speech at the Family Research Council's Pray Vote Stand Summit in Atlanta offered what sounded like rhetorical gruel, warm but a little watery, almost David Brooks:

“Our Constitution, put together by our founders – I believe God led in that -- put together a structure and a system that has made us the most prosperous, most moral nation in the history of the world – when we follow it,” said the senator.

On top of reminding the audience about how many lawmakers do not follow the Constitution, he also stated, “One thing that we have lost. What is the first word in the Constitution? ‘We’ – hang on – actually, I work for ‘we’ [the people]. Because this selfish attitude has become more and more prevalent that the whole world is about me. And the power of our Constitution began with this very simple principle of ‘we.’”

Promotion of the speech on Twitter got me a little exercised, and some analysis made it look, in fact, kind of sinister:

Joe Did What? Annals of Rhetoric

Charleston Mercury, February 16, 1861. Mr. Bret Stephens was not available to complain about how unkind and divisive Lincoln had been, so they had to do it themselves. Reminds me of Biden how they complain that Lincoln doesn't feed the press often enough and that he's an 'indecent old man".

The other day, I was comparing Biden's September 1 speech to President Franklin D. Roosevelt's 1941 State of the Union, and the Four Freedoms peroration. Today, Mr. Bret Stephens, stealing a David Brooks lede ("With Malice Toward Quite a Few"), decides to up the ante:

Abraham Lincoln’s first Inaugural Address was a 3,600-word olive branch to a South on the eve of the Civil War. His second promised malice toward none after the war left 620,000 dead. Americans have long revered both speeches because they offered a measure of redemption, and a means of reconciliation, to those who deserved it least.

Joe Biden’s speech in Philadelphia last week bears no resemblance to either address, except that, in his own inaugural, he staked his presidency on ending “this uncivil war that pits red against blue.” So much for that. Like the predecessor he denounces, Biden has decided the best way to seek partisan advantage is to treat tens of millions of Americans as the enemy within.

(First sentence in the second paragraph is screaming for an editor: an expression in Biden's inaugural address is not a feature of last week's speech—at some point in composing the sentence he decided it was about all of Biden's speeches, but was too lazy to reread the first seven words.)

Noteworthy, as Erik Loomis says, that Stephens is now agreeing that the Republican Party is the Confederacy. I mean, why else would he be urging Biden to treat the former the way Lincoln treated the latter? 

State of Society

The other day in comments I was denouncing George Mason and the Virginia Constitutional Convention in 1776 for the casuistry with which they declared that all men are equally free and endowed with rights except for those who happened to be enslaved: 

George Mason's Declaration of Rights of the State of Virginia, drafted May 1776, where the original smushing took place a few weeks before Jefferson adopted it, began by declaring "That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." 

That "enter into a state of society" clause was designed as an exemption for Virginians of African descent, who were deemed not "in a state of society". That was a diabolical piece of trickery (inherent for me but not for you, for reasons that are not intrinsic but historical), far worse than but very similar to the right to bear arms in the 1689 Bill, which was only for Protestants and not the Catholic allies of the ex-king.

Valued commenter Jeff Ryan took issue with that; surely I was overinterpreting what they meant by "state of society", and when I explained I'd gotten the interpretation from Wikipedia he wasn't too impressed with that either.

But the record of the deliberations makes it absolutely clear, as we learn from Self-evident Truths: Contesting Equal Rights from the Revolution to the Civil War, by Richard D. Brown, 2017. Some delegates to the convention, led by Robert Nicholas, complained that the original language of Mason's proposed document, claiming natural freedom for all men without exception, was too radical for a society based on slavery: it could prompt the slaves to revolt, and delegate Edmund Pendleton came up with the hedge: 

For the Record: One More Time for the Second Amendment

This is a theme I keep recycling a little, but I felt this version came out extra-pithy, and also it's got a Boebert malapropism in it.

No, they were being pressured by slaveholders who threatened to tank the whole project of the Constitution if Madison didn't give in on this one stupid gun thing. Madison thought the need for a strong central government was so great he gave in to the blackmail.

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 15, 2022

Not that the founders, speaking firmly, weren't some of them slaveholders too, as they certainly were, but it's still important that Virginians Washington, Jefferson, and Madison all agreed that slavery was a horrible crime. They were kind of like mythical Franklin Roosevelt saying, "Now make me do it," but unfortunately nobody did. Whereas those other Virginians Patrick Henry and George Mason were really explicitly freaked out by the possibility that Massachusetts and Pennsylvania, among others, might just up and ban slavery outright (as indeed they did, not that long afterwards) and before you knew it start helping their African property to escape from servitude

They were determined to make sure the new government would be strong enough to be able to prevent rebellions like that from getting anywhere.

Exactly the opposite of what loonies like Boebert claim the 2nd Amendement is supposed to do.

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 15, 2022

"Expedition" must have been the word she was hunting for.

Imaginary Madison: "Let's make sure state militias are well armed so they have a fair chance to overthrow me when I'm president."

Real Madison: "OK you can have your slave patrols but only if we get to use them to put down a whiskey tax revolt."

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 15, 2022

For the Record: Gaetz's Rebellion

 

Scuffle outside the Springfield, Massachusetts courthouse, 1786; 19th-century wood engraving, Granger Academic.

From here https://t.co/dccKX08vue

— Freewheeling Passion (@Yastreblyansky) May 28, 2021

https://t.co/qc2kxI5gC2 pic.twitter.com/s7qO4tfQRr

— Freewheeling Passion (@Yastreblyansky) May 28, 2021

System of Imbecility

Alexander Hamilton on the filibuster: “[I]ts real operation is to destroy the energy of the government and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”

— Laurence Tribe (@tribelaw) March 21, 2021

That's perfect, I thought, but of course the filibuster hadn't been invented yet—what was Hamilton actually talking about? So I asked Dr. Google, and what I got was the single most useful comment on the Federalist Papers I've ever read, from The New Yorker's Hendrik Hertzberg, July 2013:

The Federalist Papers—so often quoted to rationalize governmental stasis and congressional gridlock—are almost always treated as secular scripture. They’re not. They’re newspaper op-ed pieces, written in haste to sell a particular set of compromises, some of which their authors had adamantly opposed and accepted only with the greatest reluctance.

Hi, It's Stupid: Weekend Sedition

Hi, it's Stupid to say you should stop calling it "sedition".

Because what other word would you use to describe what does appear to be an attempt, on the part of a lot of Republicans, to subvert the Constitutional order, overturn our two-and-a-third-century tradition of building electoral democracy, and install some kind of emergency dictatorship, half-assed and certain to fail, but ominous in the lesson it seems to be drawing for that very big minority of discontented white people who are unhappy about the way the presidential vote turned out in November, the ones who "feel disenfranchised", that they don't have to put up with electoral democracy—that they can demand minority rule if they feel like it and, if they get enough shady lawyers and thugbois on the case, maybe one day succeed? How is that not sedition?

Dr. Google's first suggestion, credited to Oxford Language.

Well, in the first place because it's not, in those simple terms. It's not "against the authority of a state or monarch". It's on behalf of it, in favor of the desires of the pseudo-monarch who is in power and his party, currently in control of half the legislature, against a regime or administration that doesn't exist yet, to stop it from being born, and only secondarily against the constitutional authority that guarantees this regular succession.

Domestic Emoluments

GORGEOUS 3 BD 2 FULL BTH 2 HALF BTH COUNTRY FARM HOUSE W/HEATED AND COOLED 700 SQ FT OFFICE/STUDIO OVER 3 CAR GARAGE, IN-GRD HEATED POOL, 5 STALL BARN ON OVER 7 ACRES IN THE HEART OF BEDMINSTER. $6.,000.month as opposed to almost three times that if Secret Service is writing the check. Via Zillow. 

Something I'm not hearing, as in this otherwise perfectly good NBC story—

On Wednesday night, when President Donald Trump addressed supporters from behind a Trump Hotels lectern in a room at his Trump International Hotel Washington, D.C., one of his company's most faithful customers accompanied him.

The U.S. Secret Service.

The government agency charged with protecting the president has paid his businesses at least $471,000 to fulfill its congressional mandate, according to documents The Washington Post recently obtained via the Freedom of Information Act. That's money from U.S. taxpayers flowing to the Trump Organization, with a venerable 155-year-old law enforcement organization being used like one of Michael Cohen's Delaware shell companies and serving as a conduit for presidential profit. And that $471,000 figure? It's only through April 2018.

—is that it's another violation of the Constitution, just as serious as taking money from the Saudi Arabian government, when he gets money from our own government; a violation of Article II, section 1, clause 7, the Domestic Emoluments Clause,

Big Structural Change in Small Packags

Via.

Ezra Klein ("Joe Biden, Bernie Sanders, and America's politics of epiphany") usefully points out something that may come as a bit of a downer: no Democratic presidential candidate is going to be able to carry through much of their program, and it's perfectly possible they won't be able to carry through any at all. Biden expecting "an epiphany among many of my Republican friends" is every bit as delusional as Sanders with his project of recruiting the masses to do it, the way Woodrow Wilson forced Republican senators to ratify the Versailles Treaty and join the League of Nations:

“You go to Mitch McConnell’s state of Kentucky, which is a state where a lot of people are struggling, and you say to those people, ‘Okay, this is my proposal,’” Sanders replied. “We’re going to lower the age of Medicare from 65 to 55, and we’re expanding it to cover, as I mentioned, dental care and home health care and eyeglasses and hearing aids.

“What percentage of the people do you think in Kentucky would support that proposal? My guess is 70 percent, 80 percent of the people. And my job then as president is to rally those people and tell their senators to support it. I think we can do that.”

Emperor of Ice Cream Meets Baron of Beef

Engraving by Wenceslaus Hollar, 17th century, via Wikipedia.

Trump Doubles Down on Constitutional Powers, Names Son to Barony

Responding angrily to criticism by Democrats of his expansive view of presidential power, President Trump this morning announced via Twitter that he would endow his son Barron with a title of nobility, naming him The Right Honorable The Lord Trump of Trump Tower, and assigning his Upper East Side estates to the new Baron Trump (as he will be styled, as opposed to the less correct “Baron Barron Trump”), in view of his own turn to South Florida as his principal residence.

The trigger for the move was apparently remarks by legal scholar Pamela Karlan in yesterday’s hearing of the House Judiciary Committee: “Contrary to what President Trump says, Article Two does not give him the power to do anything he wants. The Constitution says there can be no titles of nobility, so while the president can name his son Barron, he cannot make him a baron.”

Mr. Trump bristled at the suggestion, according to two persons informed about the matter, even after Professor Karlan apologized for publicly mentioning the name of a minor. After consultation with his

Baron of beef, via Cookipedia.

Monsignor Worries About Answered Prayers

Sad Republican senators at the White House, 7 August 1974, via Medium.

Shorter Monsignor Ross Douthat, apostolic nuncio to 42nd Street ("How Trump Survives"):

Looking through the lenses of their own partisanship at the total history (all two cases) of 20th-century presidential impeachment for clues as to what is to come, liberals tend to think that Nixon ended up out of office because, unlike Clinton, he was guilty of high crimes and misdemeanors, while conservatives believe it is because the senators of the Republican minority in 1974 were more high-minded than the senators of the Democratic minority in 1998. But my hot empirical take, drawing on Twitter commentary by the political scientist Jacob Levy is that it was the oil shocks and stagflation that brought Nixon down. Meaning not "the economy, stupid," but a cascade toward economic debacle, foreign-policy catastrophe or late-1960s civil strife, as the case may be, which convinced Senator Goldwater and the others that Nixon was going to have to go.

The moral being that you won't get rid of Trump just because he's a criminal, but only if you're cascading toward economic debacle, foreign-policy catastrophe, or late-1960s civil strife, and if you want that to happen you're a bad person. I'm not saying you shouldn't impeach him, because he's an extremely bad person, but you should hope that you fail.

You think I'm kidding?

Literary Corner: I Have Seen Numbers

Man Ray, Endgame, 1946, via Washington Post.

So the Emperor had a cabinet meeting yesterday morning, opened with a grace, though it wasn't a meal, from Secretary Carson, and a remarkable rant—somebody clocked it at 13,000 words, including the grace and the press questions—from his imperial loquacity, duly published online by the faithful whitehouse.gov. What you've mainly heard is how he revealed that he doesn't know what an "emoluments clause" is (it's one of article I, section 9, paragraph 8, or article II, section I, clause 7, of the United States Constitution) but suspects it's "phony", but the whole thing was really in top form from the bard-in-chief.

This bit, with its florid repetitions, almost like an abstract arabesque pattern, and its fantastical segue from the poet's TV contemplation of pundits talking about the Middle East to a rhapsodic view of the median household income dissolving into a kind of arithmetical plasma, is extraordinary:

Nobody Has Ever Seen Numbers

by Donald J. Trump

But I sort of have to smile to myself. I was telling
a couple of people — I’m watching these people
that I’ve been watching for 20 years. I’ve been
watching the same faces; they’re just a little bit
older and a little bit grayer. I’ve been watching them
for 20 years, saying about the Middle East. And they’ve
been wrong on everything they’ve ever said. 

For the Record: Where's My Article 2, Dude?

Via SamuraiDVD.

Trump has this thing he likes to say about Article 2 (to you and me, the section of the US Constitution that describes the qualifications for and duties of the presidency) that gets weirder and weirder, most recently:

TRUMP: "Then I have an Article 2, where I have the right to do whatever I want as president."

(Article 2 does not in fact empower the president to do whatever they want.) pic.twitter.com/qIFP1AbHw6

— Aaron Rupar (@atrupar) July 23, 2019

Last week, I think I found the source of this

He has no clue what Article 2 is. Not even what document it belongs to. It's a confused memory of something he saw on Fox.

— O'er the Airports We Watched (@Yastreblyansky) July 12, 2019

in an article of April 2018 by the unspeakable Hans von Spakowsky arguing that Trump had a constitutional right to fire Mueller if he wanted, and the very Fox segment he could have gotten it from

Fox ran a story on it https://t.co/dyJeaugOaZ

— O'er the Airports We Watched (@Yastreblyansky) July 13, 2019

It seems clear that my initial speculation, that he doesn't in fact know what an Article 2 might be or where you'd look for one if you wanted it, that he sees it as something like the secret book everybody's looking for in a kungfu romance and he's trying to bluff everybody into thinking he's acquired it and could annihilate all his enemies any time he chooses, looks more and more likely to be right.

Cross-posted at No More Mister Nice Blog.

Literary Corner: Powers That You Wouldn't Believe

Kurt Schwitters, Merzbild Kijkduin, 1923, from Museo Nacional Thyssen-Bornemisza, Madrid.

(Text via Aaron Rupar from this morning's White House lawn apparition.)

A Thing Called Article 2

by Donald J. Trump

Some day you ought to read
a thing called Article 2. 

Read Article 2.
Which gives
the president powers
that you wouldn't believe. 

But I
don't even have to rely
on Article 2.
There was no crime.

This is extraordinarily precious as a document of how he works; he's heard somebody mentioning the Article 2 powers of the presidency, maybe some legal hack telling him (wrongly) that he doesn't have to turn over his tax returns, and he has no idea what it is, of course—"Article 2?"—but he doesn't want to let on, by asking some dumb-sounding question. At the same time it sounds magical—"My Article 2 powers!"—and thrilling, and he's pretty sure most ordinary people, including all those damned journalists on the lawn, don't know any more about it than he does, so he can't resist bringing it up.

And then pulls back, as much as to say, "Don't worry, I would only use my omnipotence if I was in real danger." As long as we don't start talking about how guilty he is, he'll spare us.

Designed to Lose

Ten-minute drawing by Bonnie-Hop/DrawCeption, November 2016.

Piggybacking on Steve's post yesterday on the new Trump Justice Department policy on the Affordable Care Act—and the ongoing appeal process over the December ruling by federal judge Reed O'Connor of Fort Worth in a suit brought by 18 Republican state attorneys general announcing that the whole law, including mandatory coverage for pre-existing conditions, coverage of children up to age 26 on their parents' policies, regulations requiring insurers to give some kind of value for money, and health insurance for some 17 million people through the Marketplace and expanded Medicaid programs, is invalid—

That was OK with President Chucklehead, of course, who thinks consequences are for little people—

President Donald Trump was quick to take a victory lap, and pressed Senate Majority Leader Mitch McConnell, R-Ky., and the presumed incoming House Speaker Nancy Pelosi, D-Calif., to fix the problem. The president tweeted Friday night: "As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!"

—but the DOJ announced it would be defending part of the law, though not the pre-existing conditions part, presumably under the advice of lobbyists for insurers anxious to get around the Obama regulations against junk insurance that doesn't cover much of anything.

Now they've changed their minds and decided not to defend any of it at all, which seems like a pretty weird move from the political standpoint; healthcare is the most important issue on voters' minds, and they like what the ACA provides, though most of us really wish there was more of it. They showed it pretty clearly in the November elections, too, as seemed instantly clear the day after the elections: