Could Obamacare Repeal Split the Union Apart?

Then the Supreme Court decided Dred Scott, I doubt that they intended to split the Union apart, probably the opposite.

When Chief Justice Roberts engineered the decision that allowed states to opt out of the Medicare expansion, I suspect that he too had no such intent.

But that may be the consequence.

As the data on state budget implications of the Repeal making its way to the Senate becomes frighteningly clear, it is starting to seem as if the result will be to put opt-in (generally blue) and opt-out (generally red) states on fundamentally economic and political paths.

In Blue states, the economics and politics will do deep damage to the Republicans, with likely single party domination in many more blue states.  The reverse will be true in red states, at least until the voter rolls expand — and every effort will be made to prevent that.

At what point, with the states divided into single party red, and single party blue, how long till various forms of secession start to be appealing to both sides?  Remember that the right’s obsession with state’s rights tends to blind them to the advantages of the Federal role.

A frightening prospect.  But when one party stops representing a huge swathe of the country, that is what happens.

 

 

 

 

 

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If Trump Is Planning a Pardon for the Arizona Sheriff, He Might Want to Think again.

It does appear to be good law that even Federal Court criminal contempts are pardonable by presidents.  (I had  thought there might be a separation of power claim.)

However, the Supreme Curt has hinted, back in 1925, that a pattern of abuse could lead to impeachment.  The language might also provide some tools to persuade the Court to look differently at the Sheriff’s behavior, and any Trump pardon.

Here is what the court said in In the Matter of Philip Grossman, 267 U.S. 87 (1925)

A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor’s right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning confirmed by its common law origin and long years of practice and acquiescence.

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.
(Bold added.)

There just are not so many Supreme Court cases about impeachment, so every hint is meaningful.  This might stand for:

The proposition that use of pardons, in a pattern, could result in impeachment,

That acts that go to undermining the constitutional balance are appropriate for impeachment,

The idea hat the impeachment clause phrase “high crimes and misdemeanors,” is not necessarily limited to violations of the criminal code.

I would welcome additional suggestions.  Read and enjoy the full case.

More particularly, with respect to Arizona, the use of a pardon to undermine Federal authority is said to be particularly disturbing, for example in a “neighborhood.”   While the Sheriff is now out of power, such a pardon is far more threatening to Federal authority, than an individual violation of the law in the case the Supreme Court decided.

Indeed, a pardon for conviction for systematic abuses of governmental power in breach of the constitution would seem a classic exception requiring rethinking.

A sheriff’s county-wide pattern and practice of contempt for the constitution and the Federal Courts is far more damaging that an ongoing pattern of pardons for minor violations by individuals in a “neighborhood.”  Indeed, given that the case arose under the Prohibition Act, it is understandable that the Court felt the need to recognize that pardons might represent a threat to the enforcement of the law, and therefore hinted at remedies.

Time for second thoughts, Mr President.

Note:  This is a version of a very recent post on my access to justice blog.

 

 

Great Article on Why the Left Gave Up Violence

The Washington Post has a great article on why the left gave up violence.  The two first are basicially that it is counter-productive, and that there are better ways to get change.  Te other however, is much more interesting, and worthy of much thought:

The third and most important reason for giving up violence can be found in the new makeup of the American left. Emerging out of the rubble of the 1960s, the modern left, which coalesced around George McGovern’s quixotic 1972 presidential run, effectively represented a gathering of fugitives. African Americans, Hispanics, women, gay men and lesbians, Native Americans, and workers: These long-ostracized groups, which came to replace the New Deal coalition anchored by the white working class, were the very peoples against whom violence had been done for so long. Their painful histories made them instinctively averse to, and intolerant of, political violence. Those who had survived lynchings, beatings, bombings, sexual violence, forced removals and economic exploitation were least disposed to employ them in return. In 1972, those groups were often on the far left, but they eventually became the spine of Barack Obama’s electoral coalition.

Even while the fringes of the left were drawn to violence by overwhelming frustration (not to mention FBI provocateurs), most were profoundly ambivalent, probably in major part for these reasons.

It occurs to me that the only way the right seems to have to respond to those whose claims and philosophy has been shaped in part by a family history of being at the very least at risk of being victims, is to embrace their own victim-hood — and the facts just do not support those beliefs.

This also suggests that the left might be better than we fear at reaching out to the right self-perceived victims on the basis of common “victimhood.”  At a minimum, in individual conversations, those on the left can tell stories that might create some sense of sympathy.  Of course, the sociopaths (like the Donald) will never feel any such empathy, but I simply refuse to believe that 30% are sociopaths.

And, a society built on an understanding of the risk of victimiztion would surely be a better one.

 

 

VP Pence Rushing Home Thursday. Can We Look at the 25th Amendment and Wonder Why?

As The Hill puts it:

Pence’s office said the vice president was returning to Washington on Thursday night instead of Friday morning to attend the president’s meeting at Camp David. Those meetings are expected to focus on North Korea.  

Pence deputy chief of staff Jarrod Agen also said the vice president’s other weekend plans had been canceled in case the president needed any follow up.

Pence’s office said the vice president was returning to Washington on Thursday night instead of Friday morning to attend the president’s meeting at Camp David. Those meetings are expected to focus on North Korea.  

Pence deputy chief of staff Jarrod Agen also said the vice president’s other weekend plans had been canceled in case the president needed any follow up.

With an administration this transparent, this should explain it all, but, as the 25th Amendment says in part:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. (Bold added; remainder of section text describes resolution process.)

So, you have to wonder about those plans, particularly since N. Korea is supposed to be cooled down.

You also have to wonder if the lack of cabinet resignations displays a support of Trump, or an awareness that the action moment is approaching, and that for cabinet members staying now makes more sense both personally and for the country.

More info and analysis on the 25th here.

 

 

 

 

Did Trump Spontaneously Add the Problem Words to His Charlottesville Statement?

Most of the problems in Trump Charlottesville statement come from the phrase “amny sides.”  In fact, if you watch it, here, you see you will see that the phrase, actually repeated, at the 16 second mark, is delivered very differently from the rest of the statement.

The phrase is emphasized, by tone and repetition and it is underlined by an arm wave (an old rhetorical trick).

manysides

To me, the whole thing only makes verbal and non-verbal sense as a spontaneous addition by Trump.  In other words he wanted and needed to weaken and qualify an originally more powerful statement.

Note that at the beginning, he is clearly reading something, but at this critical point he looks up, not needing to be guided by the previously drafted statement and his body argue changes.

Moreover he similarly does not look at the written statement when referencing his name and that of Obama, and when he talks of how long the hated has been going on.  It might well be that this additional dilution by time is also added personally by him.

I would urge news organizations to do all they can to get the original draft, although when you look at this in this light, it all makes sense, even without knowing the written text.

If I am right, this is an additional insight into his soul, if any were needed.

Update, August 15.  Now confirmed.

 

 

Lets Face It — a Constitutional Crisis Is Certain

Calm, measured, careful David Brooks, on the News Hour Friday night, said something like this (reconstructed, not quoted):

Look Trump is transparent.  He has said — if you want to find my corruption go to the tex returns.  And he has said to Mueller, if you got the tax returns, I will fire you. So, we know exactly what will happen.  Mueller will go to the tax returns, Trmp will fire him, and we will have a constitutional crisis of some king.

I conclude that at this point we all actually know that a constitutional crisis is coming.  All that remains to find out is exactly what will trigger it, how the parties align at that point and perhaps how it will end.  Although I am pretty confident of the ultimate outcome.

This reminds me of my mother, who as 15 at the time of the events, saying that after Munich in 1938, everyone knew that war was coming, and that it was almost a relief when it finally did so.  Then people knew what they had to do.  I think it is the same now.

Now, the crisis could come from an attempted firing, it could be triggered by a refusal to comply with court or congressional orders, or less likely, it could be set off by extra-judicial illegal executive actions.  Nor do we know what the triggering event will be about.  It could be the now essentially admitted as to intent, Russia Collusion, the obstruction of justice claim, financial irregularities, or even the emoluments clause, to name just a few of the options.

But the outcome will depend on the willingness of the Courts and Republican politicians to enforce our constitutional norms. While it is clear that almost none of our Republican leaders have read or internalized Profiles in Courage, at some point the pain barrier will be reached.

Finally, I sometimes wonder what the definition of a constitutional crisis is?  Is it when one when of the corrective measures in the constittuion cuts in and works, as it did in 1974, or is it when that mechanisms are not triggered, or fail, causing a braoder legitimacy problem.  I hope we do not find out.

How About “Frighteningly Unpatriotic” as a Label for the Trump Operation’s Newly Revealed Behavior

Obviously, the astonishing developments of the last few days remove from the Trumps any intent or mens rea defenses.  All that is left is that “nothing happened,” which in politics, or in adultery, does not really get you very far.

The developments have also caused the first upswing in  the use of the word “treason.”  There may well be a legal case, perhaps ultimately a compelling one, but for the target population of traditional low information Republicans, it may be a wall too far right now.

So let me suggest that the concept we should be pushing is “patriotism,” or rather the astonishing lack of it.  How can anyone truly patriotic, if and when approached by a foreign and hostile power offering partnership in interfering with our sacred democratic election process, do anything other than say “no,” and then call the FBI.  Nor, would we expect any patriot of another country to do anything other than that country’s equivalent.

Obviously, such an idea never occurred to anyone in the Trump operation.  But, I am sure that the vast majority of Trump voters, while happy to get hear of dirt on Hilary, would not want to be in partnership with Russia to get that dirt.  They are better and more patriotic people than that.

So I would experiment with phrases like “frighteningly unpatriotic to even consider participating with Russia to undermine our election system,” or “at best shockingly unpatriotic and maybe at worst treasonous behavior.”

The point is to use words that resonate with the Republican base.