Sunday, February 24, 2019

Trees Falling in Forests



Interesting to consider that most of America will have no idea this went on today. And if they did...?

(I especially like the conceit that the last Stalinist government on earth, whose only proclaimed goal is to subdue the entire Korean peninsula, has just been waiting for a summit with Trump to instead challenge China for economic hegemony.)

Saturday, February 23, 2019

Animal House


"Double secret probation." Remember that? Everybody does. What you don't remember is that Dean Wormer invokes it based on "a little known codicil" in the constitution of Faber College, a codicil allowing the Dean to restore order in times of emergency.

Too bad he didn't think to just build a wall around Delta house, huh?

(By the way, teaching is a way of paying the rent until I finish my novel.  Too.)

Mostly For My Russian Visitors


I've no idea if this is truly Russian, but my stats tell me I get a lot of visits from Mother Russia. (Followed closely by France, but I've got nothing for them.) (I'll have to depend on NTodd to translate the Russian; if it isn't gibberish.)

I might as well add this, as Trump is clearly their man on our side.
Is this a great country or what?

Friday, February 22, 2019

I Guess Those Pleas of Innocence

don't mean that much now?

I don't think this excuses what he did (if he did it; we're still in the land of allegations, though this sounds like the prelude to a confession), but I never condemned him. Mostly, I felt sorry for him. Throwing the first stone, and all that. But I'm not keen on prisons or punishment. Neither seems all that much aligned with justice. IMHO, anyway.

And Speaking of the Rule of Law

Sometimes the system saves us from ourselves because the people trying to screw it over are THAT incompetent.

Small comfort; but you take it where you can get it.

Sympathy For The Devil?








This story has kind of slipped beneath the headlines, and yet I find it profoundly disturbing, especially coming under an Administration headed by a man who spent years challenging the birthright citizenship of the 44th President of the United States.  Apparently the State Department was convinced that Hoda Muthana was a U.S. citizen at least twice; but now they have decided she is not worthy to re-enter the U.S., despite being a citizen.

It has probably slipped away because "Muslim" and "ISIS" and even "radical Islam."  I have no sympathy for Muthana, and if she faces criminal charges she should be returned to the U.S. to face them (what, she's more dangerous than "El Chapo"?  He's the former head of one of the largest, most violent drug rings in the world.  She married a mensch in ISIS.).  Is her punishment to be denied her birthright?  That's a very slippery slope, especially coming from a President who wonders aloud why he can't prosecute a comedy show and declares the press the "enemy of the people."  Is the problem for the rest of us simply that Muthana is unsympathetic?

I know this will play out in the courts, but I'm growing tired of expecting the courts to save us from men who have no respect for the rule of law.

Wednesday, February 20, 2019

Everything New is Old Again



Officials have touted the new wall as harder to get over, under and through. When finished, it will cover 20 miles, replacing old post and rail barriers that were meant to stop vehicles but have been useless against people trying to cross on foot.

Everything old is new again. Now, about that "fake news" and "false reporting"......

Yay us....


I understand Slate is not Lawfare or Scotusblog, but:  really?

What Trump did not predict—and probably could not, given his tenuous grasp on the legal limitations of executive authority—is that Monday’s lawsuit is, at bottom, extremely conservative. The suit does not appeal to the justices’ empathy for vulnerable immigrants or question whether Trump’s racist motives might undermine the declaration’s legality. Instead, it relies upon ancient principles of separation of powers to make a very strong case that Trump has short-circuited the Constitution. It is not a lawsuit about equality, or dignity, but about the nuts and bolts that undergird the constitutional lawmaking process. It is wonky, and formal, terse, and unromantic. And if the Supreme Court’s conservatives have any consistency, Monday’s lawsuit should persuade them to block Trump’s wall.

Legal pleadings are not internet postings.  There are rules of procedure they must follow, and a concept called "cause of action" which they must fit their facts into.  You can't sue the government because Trump said something outrageous or stupid, any more than you can "Lock her up!" because a candidate inspired that chant at a rally.  If Trump's declaration of a national emergency can be overturned in a court of law, it won't be because 5 our of 9 Justices on the Supreme Court share the outrage of 9 out of 10 political commentators on the subject.  The law simply doesn't work that way.

So what clever thing did the 16 states do?  They actually relied on the Constitution, rather than Twitter.  Huh.

The 16 plaintiff states center their 57-page complaint around a basic argument: that the president has violated the cardinal principle of separation of powers by trammeling Congress’ will to achieve his policy preferences. Trump, the lawsuit alleges, “has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction, and law enforcement initiatives toward building a wall on the United States-Mexico border.” There is “no objective basis” for this declaration, as Trump himself has essentially admitted. Further, “[t]he federal government’s own data prove there is no national emergency at the southern border that warrants construction of a wall,” and unauthorized entries are “near 45-year lows.”

...

 But the states aren’t simply upset because they would have preferred that the money be used for military construction and law enforcement. They are upset because, they allege, the money has been taken from these projects and from their citizens to be used illegally. (emphasis in original)
The point is, you see, that litigants (!) have gotten smart after two years of Trump:

 Litigants have learned well, after two long years of arguing over the travel ban, that the five conservatives have little to no interest in probing what lies in the president’s heart. They simply don’t care about what might or might not be a pretext, or whether tweets should count. They want clinical analysis of formal constitutional authority and presidential power. 

I know Dahlia Lithwick is a lawyer; I assume Mark Joseph Stern is, too.  But lordy, this is a sad excuse for analysis even by non-lawyers.  Litigants (not lawyers?  are litigants writing their own pleadings now?) have learned to argue the law, not make political arguments?  Who knew that would work in a court of law?  Yes, I know judges used Trump's tweets as the factual basis of their legal reasoning in ruling against this Administration, and the Supreme Court pointedly refused to do that in upholding the final version of the Muslim travel ban.  But the Supreme Court is ALWAYS going to prefer law over incident; that's what they do!  How they do it may be a subject of controversy (I still despise the reasoning and the outcome of the Hobby Lobby decision; I know how critics of Roe v. Wade feel on that subject.), but that, as the GEICO ads say, is what they do.  I'm glad Lithwick and Stern are optimistic about this suit; but do they have to dumb down the legal arguments to the point they are barely arguments anymore?

Besides, I think this is a much better analysis of the legal issues:

Here is a broader lesson. It is important to distinguish between two questions. The first is whether a president has undertaken an action that is, in some technical sense, unlawful. The second is whether a president has undertaken an action that is, in some fundamental sense, illegitimate in a democratic society.

The answer to the first question is probably yes -- but it’s a mistake to be sure about that. The answer to the second question is certainly yes -- and it’s a mistake to be unsure about that. 

Now:  is that illegitimacy something the courts will decide voids the President's declaration of an emergency, and all actions taken pursuant to that declaration?  Quite honestly:  it would be a mistake to be sure about that.  Of course, the decision that an action is unlawful is always a technical issue; but my fundamental issue is always your technical issue; so that argument, even that use of the term, doesn't advance our understanding very much.  Better to just say we live in hope that the courts will save us from ourselves; because as a government, that's pretty much the only hope we have left.

Yay, us.

Oh, Dear, What Can the Matter Be?


“The Trump administration continues its attempts to wrongfully strip citizens of their citizenship,” Shibly told AL.com. “Hoda Muthana had a valid US passport and is a citizen. She was born in Hackensack, NJ in October 1994, months after her father stopped being a diplomat.”
Most people born in the United States are accorded so-called birthright citizenship but there are exceptions:

Under the Immigration and Nationality Act, a person born in the U.S. to a foreign diplomatic officer is not subject to U.S. law and is not automatically considered a U.S. citizen at birth.

It gets more complicated because:

Britain, however, pointedly refused to follow Trump's tweet (and when did those become official government directives?  Or even official government statements?), and denied another ISIS follower re-entry to Britain; except they have a law allowing them to revoke or deny citizenship.  So don't do as we do, but please do as we want.  

It's supposed to be hard, if not impossible, to revoke American citizenship; and this denial ties in all too conveniently with Trump's harangues against birthright citizenship.  Whether or not Muthana should be allowed into the U.S. is one question; the basis for denying her permission is another.

Hard cases make bad law, but this is a bad decision based on what might well be simply the whims of a racist xenophobic President.  It's the 21st century, we're supposed to be better than this.

"42", or, Am I Taking This Seriously Enough?


I know it's a metaphor, but if you listen carefully, you hear Wittgenstein being invoked:

It happens again and again that, when there are many possible descriptions of a physical situation—all making equivalent predictions, yet all wildly different in premise—one will turn out to be preferable, because it extends to an underlying reality, seeming to account for more of the universe at once. And yet this new description might, in turn, have multiple formulations—and one of those alternatives may apply even more broadly. It’s as though physicists are playing a modified telephone game in which, with each whisper, the message is translated into a different language. The languages describe different scales or domains of the same reality but aren’t always related etymologically. In this modified game, the objective isn’t—or isn’t only—to seek a bedrock equation governing reality’s smallest bits. The existence of this branching, interconnected web of mathematical languages, each with its own associated picture of the world, is what needs to be understood.


Now, is that because Wittgenstein helps us understand reality as it is?  Or is that because we understand reality as it is through the ideas, now, of Wittgenstein?  Did he, in other words, discover something true about reality?  Or do we interpret reality because of the influence of his ideas on our discourse?  And even if one answer "extends to a deeper or more general description of reality," does that mean that answer is right?  When I studied the New Testament under a member of the Jesus Seminar (ask your grandpa, punk!), he taught us the probabilities (not mathematical!) of statements in the Gospels being the authentic words of Jesus of Nazareth, and how the Seminar decided which words were invented, which were distorted, and which were closest to the original speaker.  And it was all, of course, a matter of interpretation and argument.  Where is the hard reality?  Somewhere in between, just as the nature of God and God's revelation is known, not in the words of Scripture, but in the interpretations of Scripture, and the interpretations of those interpretations, and the interpretations of the interpretations of the interpretations.  It's turtles all the way down!, although in this case the description applies to the Midrash of the Hebrew Scriptures, not to the failure of "religion" to be a "hard science."

 It’s for this reason that Paul Dirac, a British pioneer of quantum theory, stressed the importance of reformulating existing theories: it’s by finding new ways of describing known phenomena that you can escape the trap of provisional or limited belief. This was the trick that led Dirac to predict antimatter, in 1928. “It is not always so that theories which are equivalent are equally good,” he said, five decades later, “because one of them may be more suitable than the other for future developments.”

Or, as the E&R church put it long ago:

Grant that thy Church may be delivered from traditions which have lost their life, from usage which has lost its spirit, from institutions which no longer give life and power to their generation; that the Church may ever shine as a light in the world and be as a city set on a hill.

HEAR OUR PRAYER, O LORD.

Which sentiment is the illegitimate rewriting of rules to suit changed circumstances, and which is the legitimate alteration of understanding to fit new insights and discoveries?  This, for example, is something I've always understood about philosophy and theology; that is, that you can't discard the ideas you don't like and simply replace them with those that you do, or ignore new ideas because they challenge your preferred notions:

Take general relativity. Physicists know that Einstein’s theory is incomplete. Yet it is a spectacular artifice, with a spare, taut mathematical structure. Fiddle with the equations even a little and you lose all of its beauty and simplicity. It turns out that, if you want to discover a deeper way of explaining the universe, you can’t take the equations of the existing description and subtly deform them. Instead, you must make a jump to a totally different, equally perfect mathematical structure. What’s the point, theorists wonder, of the perfection found at every level, if it’s bound to be superseded?
That last, of course, is the question of philosophers and theologians for millennia.  In theology it's the source of humility (one; theology itself should be founded on the humility of the servant, but that's a theological issue, too).  And this is where it really seems religious (although this thinking may simply be founded in Aristotle's conviction that all things have a telos; but then were does that telos come from?):

It seems inconceivable that this intricate web of perfect mathematical descriptions is random or happenstance. This mystery must have an explanation. But what might such an explanation look like? One common conception of physics is that its laws are like a machine that humans are building in order to predict what will happen in the future. The “theory of everything” is like the ultimate prediction machine—a single equation from which everything follows. But this outlook ignores the existence of the many different machines, built in all manner of ingenious ways, that give us equivalent predictions.
Oddly, this language sounds extremely religious to me, too; but maybe that's because I know the work of the Christian mystics, and am inclined to hear echoes of the Cloud of Unknowing (which I understand not as beyond knowledge, but as actually shedding knowledge in order to...well, know):

Arkani-Hamed now sees the ultimate goal of physics as figuring out the mathematical question from which all the answers flow. “The ascension to the tenth level of intellectual heaven,” he told me, “would be if we find the question to which the universe is the answer, and the nature of that question in and of itself explains why it was possible to describe it in so many different ways.” It’s as though physics has been turned inside out. It now appears that the answers already surround us. It’s the question we don’t know.
So is the question "God"?  Or "42"?  The question to which the universe is the answer is not really a religious question, since religion is not really concerned with "why" on that scale, or more accurately, in that language game.  And which language game is physics going to play now?  Because this is all getting very Godelian, too.....

More Fun With Twitter



Or maybe it's a strategy, since no one even gets to the issue of his complete ignorance of how international trade is not a simple zero sum game.

Am I....?

I think the very nature of belief in God that is common to the monotheistic religions lends itself to that kind of serious consideration in a way that atheism doesn't naturally hold.  But first there is the choice to believe that reality is real and consequential. 
This identifies quite nicely a critical turn in my own thinking.  For anything to be of any consequence, one must first believe that reality is real and consequential.  If human life is a mere ephemera, a flash of light in the eternal darkness, a speck of dust in the endless void of space, a tick of the watch in measureless eternity, then reality itself is neither real nor consequential, but merely    and false perception.  If, however, reality is real and consequential, then the question holds true for all of us: "How should we then live?"

That can be a philosophical question, or it can be a religious one; it can be an ethical inquiry, or a moral one.  The point is it can be asked, and even if the answer is a Buddhist claim of illusion (I won't distort Buddhism or demean it by assuming to know its tenets when I don't), even that claim assumes reality is real and consequential.  We start there, or we cannot move on.

So we set aside Descartes cogito.  No real effort; but no small feat, either.  That cogito is considered the foundation of modern philosophy, which is to say "modern" (v. ancient) thinking, but it is a principle that extends back to Plato.  Descartes really only sheared away (or allowed the shearing away) of the religious trappings Plato had acquired since the 4th century; he didn't really plant a flag on a fundamentally new firmament.  To abandon the cogito is not to move against, or even away from, Plato fundamentally; but it is to move away from that subjective insistence that human thought is all we know, and all we can know.

Or at least we now have grounds for doing so.  Hans Kung is not exploring a new continent, either.  He is largely bringing Catholic teachings into the 21st (late 20th, actually) century.  But everything old is new again, and to understand reality is real and consequential is to understand that the answer to the question "How should we then live?" can have real importance.

Do we pursue fame?  Money?  Absolute authority on the internet? ("SOMEBODY ON THE INTERNET IS WRONG!")  The obliteration of all that outrages us about sharing this planet with other people (the apparent raison d'etre of most internet discussions)?  Do we chase God and pursue salvation and live our lives as strictly within bounds of "morality" as we possibly can, hoping to find favor in the hereafter?

Or are we our brother's keeper?  Should we be first of all?  Or last and least of all?  How should we then live?

To quote myself from another time and place:

 Our hope is not in the victory, but in the defeat; our hope is not in the one so powerful he will save us all, but in the one so powerless he is willing to die for us all. Our hope is not in overcoming, our hope is in being found worthy because of our willingness to place service above everything else we know, to make service the reason for everything we do. Our hope is in the reversal of what we expect. If our hope was only in our gain, we would reach a point where all we could expect was to hold tenaciously to what we had, to keep it "ours" for as long as we could, to protect it against all other claimants and cry "no fair!" to the driver when someone else claimed to right to ride shotgun. We have to restore our claim to priority over and over and over again, and it takes all our energy, and we can never be certain we’ll prevail again. That condition is permanent.

But also permanent is the condition of others; also permanent is that we can always be of service to others. And there is no competition there, no risk of loss, no concern that we will lose our place of privilege. There is no privilege in service, except that we get to model Christ, and we get to serve the Christ, and by service we become more like Christ. We, too, will drink the cup and undergo the baptism of our Lord and Savior. But that is because we will not be in charge of others, but in service to others. There is no privilege in service, except that in service, we do as God did. In service, we model the Creator of the Universe. And our energy is used in help, not holding on; in giving, not gain. It is the paradox of the powerless, that, letting go of power, we have all the power we will ever need.

This is the word of God the letter to the Hebrews is talking about; the word of God that is alive and active, that cuts more keenly than any two-edged sword, that separates soul and spirit, joint and marrow, that discriminates among the purposes and the thoughts of the heart. It is the bottom line, we say, that matters; it is the outcome, not the intent, sometimes not even the action. Because at the bottom, is where everything happens to everybody. At the bottom, among the servants, is where we find God. Because at the bottom, God serves everyone, and at the bottom, is where we serve and honor God. It is the reverse of what the world teaches, of those who supposedly rule over foreigners.

Our hope is in reversal. Our hope is in the fact that everything we know is wrong. Our hope is in the power of powerlessness. Our hope is not in power. God is all powerful because God is powerless. No, not powerless, but acts without power. God reverses everything we know. God tells us to race, not for the top, but for the bottom. The top is ephemeral, it is false; it is a place only in legend and song. The bottom is where we all are, and where we never rise from. When you are #1, the only way to go is down. Go down, then, because #1 is not the first, but the last; not the ruler, but the servant. Amen.

Tuesday, February 19, 2019

SAD!

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

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.

Monday, February 18, 2019

More Fun With Twitter







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?

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.

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.

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.)

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.

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.

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.

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.)

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:


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.

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.

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.

Is that 25th Amendment still available?



Asking for a friend, because:



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?

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:

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.