Tuesday, February 19, 2019

SAD!

Seriously. Even I got over being so nakedly needy by the time puberty was finished.
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Between the Idea and the Reality


Falls the Shadow:

“I’m going to take a look at the case the president makes,” Sen. Ron Johnson, chairman of the Homeland Security Committee, told NBC host Chuck Todd Sunday on “Meet the Press.”

The Wisconsin Republican said he was concerned about the timeline of when the administration actually intends to put the funds into use. “If he’s not going to be spending it this fiscal year or very early in the next fiscal year, I would have my doubts.” 
Ron Johnson's concerns here are irrelevant.  The problem is the way government works, and by "problem" I mean the problem for Trump.  Having announced his "national emergency" and then spent the weekend playing golf and getting up early this morning for his favorite TV shows:
(I always imagine him in pajamas on the floor, a bowl of cereal in his lap, the way I watched Saturday morning cartoons as a kid.)

It doesn't seem clear Trump is going to do any follow up (does he ever?).  Yes, the burden now shifts to people like the Acting Secretary of Defense, who actually takes this matter of governance seriously:

 ”I think I have a lot of discretion,” Shanahan told reporters while traveling abroad on Saturday. “You can trust the numbers in terms of the potential. Then you gotta marry it up with where the money would be spent.”

.....

”But I just want to make a point of this: we are following the law, using the rules, and we’re not bending the rules,” Shanahan said.
Trump, of course, wants to run over the rules with his golf cart.  But the laws don't favor him, and one of those laws requires Shanahan to declare the wall is "a military construction project...that [is] necessary to support such use of the armed forces."  That's going to be easy for Sen. Johnson to justify; but when will the money actually get spent?  The more people jump in the pool to sue over this (and that group just increases when you consider government contractors who will lose contracts as money is moved to the wall construction), the longer it take simply to condemn private property for the wall, the less likely much of this money (which must be used for construction, not for eminent domain purchases.  Under what statute is that money allocated?  Military construction on an emergency basis must be on property already owned by the military.) will ever move from column A to column B to payments to somebody for something done.

That's really what Sen. Johnson is talking about.  As a practical matter we're no closer to the wall than we've ever been, or probably ever will be.
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Monday, February 18, 2019

More Fun With Twitter







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This Actually Gives Me Some (Political) Hope

Not because Obama is a sooper-genius whose every word on things political is chiseled in stone on Sinai, but because I think the Clinton campaign failed for much the reason the Gore campaign failed:  too much distancing from the successful president preceding, too little willingness to take advice from someone who had learned the hard way how to win.

Competing aggressively in Trump country, for example, is exactly what Hillary didn't do.  I think she might have done as well, if not better, than Beto in Texas, had she tried.  Which would have shaken the political narrative two years early, if nothing else, and maybe led to even more victories last November.

I can dream, can't I?
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The Dog That Won't Bark

So, did you, or did you not, say you believed Putin over all U.S. intelligence agencies about North Korea's missile capacity?

You're very upset by the provisions of the Constitution; not so much about the revelations about your relationship with Putin.

Silences speak volumes.
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Sunday, February 17, 2019

All Hail the Knowledge Revolution!

Without which we would all be ignorant!  The argument Tribe is referencing is not the argument at Slate, but it might as well be.  The basic argument there is that Trump didn't say "Mother, May I?" and Pelosi didn't say "No, you certainly may not!"

By voting on Thursday to approve a budget deal without any explicit language barring the president’s end-run maneuver, House Speaker Nancy Pelosi and members of her caucus decided not to exercise their check. Now, they can’t count on the courts to do it for them.

Yeah; that's not how it works.  Then again, this is not an argument strong on legal reasoning.  For example:

The first is the doctrine of standing. The Supreme Court held in a 2015 case that “legislators whose votes would have been sufficient to defeat … a specific legislative Act have standing to sue if that legislative action goes into effect … on the ground that their votes have been completely nullified.” The Democratic-led House would argue that the president’s decision to fund the border wall is essentially a “legislative act” beyond his authority, and thereby “completely nullified” House members’ votes. But not all of the justices are on board with this “legislative standing” doctrine. In one of his last opinions, Justice Antonin Scalia said that “[d]isputes between governmental branches … regarding the allocation of political power” are not “cases” or “controversies” that the courts can resolve. Justice Clarence Thomas agreed. Justices Neil Gorsuch and Brett Kavanaugh, who joined the court after 2015, might well adopt the same view. If so, then the House Democrats would start out with three votes at the high court against them.

The Scalia quote is from Morrison v. Olson, a case about the independent counsel statute under the Bush 1 Administration.  It has bugger all to do with the issue of standing.  On that issue, Professor Tribe is more pertinent:


 Don't worry, I won't bore you with the distinguishing details between Morrison v Olson and USHR v. Burwell.  Justice Scalia can do that:

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish -- so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

I

The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United States v. House of Representatives of United States, 556 F.Supp. 150, 152 (DC 1983), which -- as is often the case with such interbranch conflicts -- became quite acrimonious. 

That's Scalia's dissent, which has no precedential value*; and obviously the facts of the case have nothing to do with usurping the Art. 1 authority of Congress to allocate governmental funds from the Treasury.  It has, as I say, nothing whatsoever to do with the question of standing.  That Slate's article doesn't understand that, just points out what poor legal reasoning the argument of that article is built on.  The suit that will make its way to the Supreme Court (several are expected to be filed, which wins the race nobody knows) will be precisely about "the allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish."  Many parties are bringing many lawsuits, and the likelihood is all of them will have standing.  As for what Scalia says in that quote from the opening of his dissent, it doesn't seem like much a leap to me to start there, and find against the President's claims of his "emergency powers."

So, should Pelosi have inserted language into the bill funding the rest of government operations saying "NO YOU MAY NOT SPEND MONEY ON A WALL!," preferably in all caps so the President couldn't miss it?  Professor Tribe has the correct legal answer to that, in the tweet at the top of this post.  Will the Court ignore precedent and standards of statutory construction and Constitutional law on the separation of powers and the plain language of Art. 1?  Maybe; but not likely.  John Roberts simply doesn't want to preside over that court, and he would likely be the 5th vote against Trump.  Or, referring again to Professor Tribe:
No, it doesn't make me feel any better that we're forced to rely on the Courts to pull our fat out of the fire.  But what I wouldn't give for a world in which opinions on the law were given only by people with knowledge of the law, and not even Tom, Dick and Harry with internet access.

*Yes, it is beloved among dissenting opinions, but mostly because it skewers a statute that died in 1999 and, following the Clinton Administration and the country's experience with it, that no one wants to resurrect.
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Meanwhile, in South Carolina


Lindsay Graham is Senator for what state, again?  Not Kentucky, is it?
So he doesn't really have to care about their schoolchildren (and is Kentucky a border state?  Because school children in Texas aren't being threatened by immigrants crossing the Rio Grande, at least not last I heard).  Does he care about jobs at the BMW factory, though?  Or are the only jobs at risk those Amazon won't bring to NYC because it threw a hissy fit that nobody loved the idea of a state-provided helipad for Jeff Bezos?  (Which, for some reason, isn't socialism.  Giving Amazon a sad, however, is.  Just ask Rick Santorum.)
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Yes, the Courts Must Save Us Now

Even Fox News gets it:

The White House has no leg to stand on, and it knows it.  But if the courts refuse to play parent to Congress and the President?

Helluva way to run a railroad.
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Enough about you, let's talk about me for a minute


That was tweeted from Florida.  The next tweet was video from his appearance in the Rose Garden (in February, as SNL noted.  What global warming, right?).  Then he tweeted this:
Then some tweets about ISIS, and he pulled this from his twitter feed:
Then, after bragging about his approval rating in the latest Rasmussen poll (the only one that counts, apparently), he posts this:
And goes full Stalin:
Bodies are still being counted in Illinois, not even buried yet, and yet the news from the POTUS is all about:  the POTUS.  And we're so used to it nobody notices anymore.

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History Lessons from Recorded History



Interesting how simple musical recordings capture the history we so easily let go of.  Civility in our politics, for example.  Or the immorality of walls:



Or the fact that coal mines have been shutting down for over 50 years now.  I knew a man in southern Illinois laid off when a coal mine closed; fortunately, he found other work, and he taught me not to be so narrow-minded in my dislike for Wal-Mart, which gave his wife a good job and saved their family when they needed money.  You have to appreciate things from the level of individuals, sometimes.



Funny how art can teach us things, if we pay attention.
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In which Lawrence Tribe says I was right

Yeah, I'm that insecure.

And I still think, even if the Supremes don't agree with Professor Tribe, Trump will be out of office before all the suits against this "emergency" are tried and appealed. And he doesn't really care, anyway.

“We always anticipated that this would create a lot of attention and since moneys potentially could be redirected, you can imagine the concern this generates,” [U.S. Defense Secretary Patrick] Shanahan told reporters traveling back with him from his trip to Afghanistan, the Middle East and Europe.

“Very deliberately we have not made any decisions, we have identified the steps we would take to make those decisions,” Shanahan said. He added that he would start reviewing the initial military planning on Sunday.

No hurry. It's not like there's an emergency or anything.

(And all the armchair lawyer arguments about how the Supremes will 'show deference' to the White House; yeah, that's not the issue here.  Simple statutory interpretation is.  Tribe has other tweets looking at statutory language Trump has to rely on, and it doesn't support his claims, either.  As Youngstown held, the President doesn't have unlimited authority to do whatever pleases him at the moment.)

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Saturday, February 16, 2019

Not to be elitist....

What this guy said:
If it weren't for the overturned ketchup bottles (and what are they doing at an "omelette bar"?), I'd swear this was a picture from the small town country club my father played (and occasionally ate at), circa 1970.

And I thought the places cheesy even then.

Meanwhile, in Munich, Ivanka is hard at work, listening:


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Friday, February 15, 2019

Honestly, there's entertainment value here


And the day's not even over yet.....
 
Well, no entertainment value there, except to underline the point:  Trump doesn't care.  Headlines matter; governing doesn't.
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More popcorn, please!


I heard an announcement of a program to be broadcast on local NPR tonight, with the guest noting that, instead of headlines "Trump Caves" and "Trump Loses Fight," the President now gets headlines "Trump Declares National Emergency."  So much better, for Trump:

Legal observers expect the courts to impose an injunction on this national-emergency declaration as soon as it is made. Indeed, the president made the judiciary’s work easier on Friday when he admitted that he “didn’t need to do this,” a confession that there is, in fact, no ongoing national emergency. A judicial quagmire is the GOP’s fondest hope. That way, Trump can say he’s fighting for his wall in every possible way, and Republicans in Congress can cede their authority to check the executive branch by insisting that the whole matter is out of their hands. And all without ever having to expropriate private property along the border or prove the dubious efficacy of a physical wall. Everybody wins!

And how bad is it?

Let’s not mince words: Backing Trump in this moment is not the prerogative of an institutionalist, which the majority leader claims to be. It is the prerogative of a partisan operator motivated, above all, by deference to a fleeting political imperative: avoiding another government shutdown.

This is a moment of extreme national cowardice. America’s governing institutions are abdicating their authority in pursuit of expedience and amid a craven scramble to save face. A precedent has been established that all Americans, but conservative Americans in particular, will long regret.

I wish that were true, but I doubt it. (I mean honestly, why do we have government shutdowns in the first place?  What "institutionalist" justifies that idiocy?)   No sane politicians is going to declare a "national emergency" and impose universal healthcare or strict gun controls or sweeping mandates to correct climate change (what, ground all airplanes?  Stop the sale of gasoline?  End all ranching and livestock production?).  Not only would it not work, it would be a political disaster.  Trump isn't really doing anything by declaring a national emergency; he's getting himself out of a box he put himself in.  Prime evidence of that?

McConnell knows that's bullshit, but he doesn't care!  Abdicating authority in pursuit of expedience has been the function of politicians in Washington since Congress began.  Forget all that high minded rhetoric about "Profiles in Courage" who stepped up to save the Republic from enemies within and without, it's horse shit.  This is the way the Republic works:  lurching from crisis to crisis, near-chaos to near-chaos, with the press occasionally announcing a "constitutional crisis" on the horizon (on that issue today?  Crickets; although this is as close to the real thing as we've been since it was revealed Nixon had an "enemies list.").  I expect that end the GOP anticipates (courts tie it up, nothing happens, everybody wins a perception award) is true.  I also expect it will do the GOP no good at all (I heard a political commentator this morning say this is bad for Democrats, who will have to fight 2020 on immigration, which they don't want to do.  I wondered where he was last November.  Commentary is commentary, but it is not all created equally.).

Me, I can't stop it, so I'm just gonna enjoy the shitshow.
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Taking a small step backwards



No, it doesn't:

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.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Section 4, 25th Amendment, U.S. Constitution

As I said, there is no case law on this language;  the limitations Dershowitz insists on don't exist, as a matter of law.

Harvard Law really needs to seek in injunction to prevent him from claiming any association to them at all.  This is just embarassing.
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Is that 25th Amendment still available?



Asking for a friend, because:



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Stop Making Sense



So, is what Trump said in announcing his "national emergency" going to be used as the factual support for his claim of such extraordinary powers?
That, of course, is his defense against impeachment.
That doesn't really qualify as evidence in a court of law.
Nor does that.
Nor that; nor that.  For the sake of sound governance, tell me they've got more than that.
No, apparently not.  Meanwhile, the POTUS doesn't get any closer to making sense:
See?
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Thursday, February 14, 2019

Take a Ride on the Reading

This is not a popular opinion, to say the least.  But McConnell has a weak hand: the 35 day shutdown followed a 100-0 vote in the Senate to fund government right before Christmas.  Yet there weren't enough votes to override Trumps' veto, in the Senate.  And now?  Apparently McConnell knows where the votes are to override another veto, so he told Trump he would support a declaration of an emergency, then went to the Senate floor to interrupt Sen. Grassley and be sure he got that support on the public record (i.e, cable news).

Shortly after that, as NPR noted this afternoon, the White House announced Trump would, indeed, announce such an emergency, and the President is now slated to speak in the Rose Garden mid-morning tomorrow.  McConnell made sure Trump couldn't change his mind again (the first shutdown was unanticipated; if memory serves, many Senators had already gone home after the 100-0 vote).  It wasn't much, but it kept the government open.  Helluva way to run a railroad....

McConnell did this because McConnell has no cards to play.  Yes, an emergency declaration won't go down well with all GOP Senators; but will there be enough to override a veto of the resolution sure to come from the House?  The courts will save the country (because the courts will have no choice.  They can't let the President rewrite Art. 1 of the Constitution at will, or run roughshod over the 5th Amendment.), but mostly the courts will take the issue out of everybody's hands until, as some have noted, Trump's term expires and the next POTUS decides there is no emergency.  It will take that long to get to the Supremes, one supposes.  I don't think they'll be anxious to reach down and grab it, anyway; but who knows?

Either way, this is the hill the GOP dies on.  The hard-core GOP base is turning on Trump for signing this spending bill (if he does; stay tuned!).   Even Limbaugh and Coulter and Hannity will ultimately go where their supporters go, racing in front of the parade to pretend they are leading it.  Trump already sees abortion as the new shiny object to dangle in front of his base.  Declaring a national emergency means nothing to him except a "Get Out of Jail Free" card.  He's always conducted business as if he were spending Monopoly money; now he's treating government like it was merely a board game.

What he's going to do sets a very bad precedent if the courts don't slap it down hard.  So once again we must look to lawyers to save us from ourselves.

And if they don't:
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When Konstitooshinal Skollars Meet


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.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Section 4, 25th Amendment, U.S. Constitution

McCabe also said in interview clips aired on Thursday that Justice Department officials discussed which Cabinet officials might be sympathetic to removing the president, using the authority of the 25th Amendment to the Constitution. (That amendment, ratified in 1967, deals with presidential succession and the prospect of presidential incapacity, creating a means for the vice president and others to step in if the president were deemed unfit to serve.)
There is no case law on sec. 4 of the 25th Amendment because it's never been implemented against a sitting President.  There is no case, in other words, interpreting the plain language of the amendment to mean other than what it appears to mean.  Dershowitz is literally arguing the Constitution is unconstitutional.  There's no other way to understand it.
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When News Breaks, It Breaks On Twitter






Or maybe Trump just wants to knock McCabe's book out of the news:
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