Balkinization: Will the United States Survive this election (continued) America on the brink of civil war?

Comments:

Trump supporters would seem to have little ground on which to object to your proposal unless they're equally adamant about the shenanigans McCrory is trying to pull in NC. Your suggestion, at least, is entirely within the law.

That said, why bother with the House? Why not just ask the Dem electors to vote for some qualified R along with 38 R electors?

But the truly fair result would be for electors to uphold the will of the nation and cast their votes for Hillary.

# posted by

Mark Field : 9:19 PM

I just read reports on the "off the record" meeting of major media organizations, personnel "convened" by Trump reported in the New York Post. Trump accused them of being liars. I expect some of those present will speak openly, on the record, as this is a blatant attempt by Trump to stifle the 1st A speech and press clauses. Those present need not abide by the "off the record" arrangement that attempts to stifle the speech and press clauses, as America's national security is involved. For that matter the media should no longrer agree to "off the record" while Trump is President.

# posted by

Shag from Brookline : 9:38 PM

There are many honorable Republicans.

If you say so, I will suspend my skepticism until I see some of them act.

# posted by

byomtov : 10:23 PM

It is important to point out with respect to Sandy's parenthetical in his closing paragraph:

" ... (which may represent only a relatively small subset of the larger number of people who voted for him in their understandable desire to say "fuck you" to elites of both parties that had almost willfully ignored their plight in the rush toward globalization)."

that these elites in what they did, didn't do, was not specifically aimed at and affected only the white working class but ALL of the working class. And globalization should not have been ignored as many Americans benefitted therefrom. Rather, elected officials, both parties, failed to address those who lost, whether due to globalization or technology, or both. Income inequality started in significant measure beginning with the Reagan Administration and continued through Republican and Democrat Administrations for 40 years. A role of government is to provide safety nets for all working class members.

# posted by

Shag from Brookline : 10:24 PM

This appeal to "Our Founders," especially given the source, seems like cheating. The way I apply the Constitution is to use modern understanding of the text. For a long time, the understanding is that electors are bound by the voters' choice in each state. States have multiple laws in place securing that understanding, including fines and oaths to follow the will of the voters. This is the understanding behind the selection of the electors and their acceptance of their positions. Yes, this leaves open your proposal, but it's a stretch. Democracy will be a games of odds. Sometimes, the voters will fail us severely.

It might be "fair" for the person with the most votes to be President, but that isn't the rule. In fact, Clinton only obtained a plurality of the votes. If "Our Founders" are our concern, they thought that in such a case it would go to the House of Representatives, voting by state. Trump has a clear advantage there and members of the House of Representatives there have made their wishes known. It also would be quite anti-democratic for electors or member of the House of Representatives to reject the wishes of the voters and choose a third person. In other contexts, not trusting the voters would be strongly rejected. Election has consequences.

Finally, an anti-democratic mistrust of the voters (which is at least partially anachronistic with a better communication system, a more mobile national population & various advances in respect of democracy) by giving electors a power to override them is not the only reason behind the Electoral College. It was also set up to protect small and slave states. Bound electors don't erase that interest being fulfilled in this election.

The "escape hatch" is technically possible -- if improbable given the number of partisan electors that would have to switch -- but to me unsavory. As to relying on honorable Republicans, a thin reed, we are really left with others options such as a Rand Paul and a few others rejecting a John Bolton. The elector route is even more unlikely, especially given the limited scope of their appointment.

# posted by

Joe : 10:28 PM

I agree with Joe's first (except for the last sentence) and fourth paragraphs, but I'm puzzled by the second one. AFAIK, the Framers didn't expect the House to vote in cases where a candidate won a plurality of the popular vote. They didn't expect the popular vote to count for much at all. I also can't see how it would be "undemocratic" for the House to vote for the winner of that plurality. If anything is "undemocratic", it's the EC.

As for abiding the result of the EC because that's traditional, that's a fair argument to make. I'd feel more inclined to abide the result if Republicans hadn't themselves been violating so many norms recently. Either both sides have to abide by norms or neither side will in the long run. That long run won't happen this time because Prof. Levinson's proposal has no chance at all of succeeding. But eventually it will happen.

# posted by

Mark Field : 10:53 PM

It was also set up to protect small and slave states. Bound electors don't erase that interest being fulfilled in this election.

I styhat a legitimate interest?I don't think so. I think any time you astart talking about the "interests of the states" as distinct from the interests of the inhabitants of the states you are starting to blow smoke. States ahve no interests per se, any more than city blocks do. Their residents have interests, which are entitled to the same weight, on a per capita basis, as the interests of the residents of other states, or blocks.

The sanctity afforded arbitrary lines in the ground in the interests of "states" strikes me as completely irrational.

# posted by

byomtov : 10:57 PM

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# posted by

Bart DePalma : 11:13 PM

Sandy: There can be no doubt that Trump and Bannon have liberated the worst instincts of a lot of truly deplorable people.

:::sigh:::

Haters projecting their pathologies onto some political figure does not mean that political figure created the hater or gave them some sort of a license to hate. Specifically concerning the anti-semite who emailed you, I know of no time Trump incited anyone to anti-semitism.

On the other hand, the Democrats have been caught inciting violence at Trump events and the Democrats' (including your) deplorable habit of calling Trump supporters "deplorables" and thus dehumanizing them can plausibly be blamed for inciting the paid thugs at anti-Trump demonstrations to commit the dozens of documented assaults on Trump supporters or those they suspect of being Trump supporters.

The violence equation during this awful election season is almost entirely once-sided, so you may want to stop throwing rocks around your glass mansion.

I joined my two University of Texas colleagues Jeff Tulis and Jeremy Suri in writing an op-ed, published in today's New York Daily News. As you can see (if you open it), it calls for a coalition of Democratic and at least 37 Republican electors to ally to vote for a Republican other than Donald Trump and thus throw the election into the House, which would presumably elect the alternative Republican and save us from the Trumpian menace...

I have no love for Donald Trump and was one of the first to call out his fascist campaign strategy of demonizing foreigners for failures of our own government. However, I see no evidence Trump "will bring the constitutional order to the brink of failure."

What Trump has advocated does not violate any provision of the Constitution of which I am aware. The current immigration law is perfectly constitutional and enforcing it equally constitutional. Foreigners have no constitutional right to immigrate into the United States. Furthermore, the Commerce Cause expressly grants Congress the power to erect protectionist trade barriers. These may be bad policies, but they are not unconstitutional. Indeed, Trump reversing Obama's foreign executive agreements entered without approval of the Senate and the myriad of executive orders and bureaucratic decrees refusing to enforce or violating the laws of Congress would help restore the constitutional order.

Almost none of what Trump is advocating is even novel in US history, apart from the wall idea he borrowed from Israel. Progressives like Hoover and FDR implemented far more draconian protectionist and anti-immigrant policies than anything Trump is suggesting. During the Great Depression, FDR mass deported aliens like your acquaintance from Texas to free up jobs for unemployed Americans.

Your call for faithless electors is, thus, nothing less than a call for an establishment coup d'tat to overturn our electoral system and to replace our president-elect with a member of the establishment for whom no voters cast a ballot. Nothing in Hamilton's Federalist 68, from which your op-ed cherry picks a snippet, suggests electors are free to disregard the will of the people and impose on them an unelected president. It is your suggestion and not Mr. Trump which threatens to "bring the constitutional order to the brink of failure."

This #nevertrump Republican would never join your coup, even if your faithless electors sought to make my preferred candidate Ted Cruz president. Rather, I would join the inevitable uprising to force your pretender to step down and return Mr. Trump to the office to which he was elected.

Sandy, it is almost incomprehensible to me that a professor of constitutional law and self-proclaimed champion of democracy would seriously and publicly offer such a unconstitutional assault on democracy

You need to do some serious soul searching.

# posted by

Bart DePalma : 11:15 PM

"offer such a unconstitutional assault on democracy"

What's unconstitutional about it? The entire purpose of electors is to moderate the voters* choice.

*The voters of certain states, to be sure.

# posted by

Mista Whiskas : 11:44 PM

"No doubt some readers of these remarks will say that they have no complaint if they're sent to concentration camps, since, after all, they are, at least technically speaking, in violation of the law."

Ok, first of all, there's nothing "technical" about it, He's here illegally. Period, end of story. He's not a citizen, he's not entitled to any of the rights of citizenship. Obama deciding to enforce a law Congress refused to enact does not change any of that.

Second, nobody in the administration is talking about putting anybody in your friend's position in a concentration camp. Your friend's horror and fear is not a response to what Trump is saying, it's a response to Democratic party fear mongering.

What's Trump actually said? That he would prioritize deportation of criminals, then figure out what to do with the rest. Is your friend in the habit of robbing banks?

Your friend is in the very lowest priority group for deportation, those brought here as minors, a long while ago, who had no choice in the matter. If he's really been here 20 years, he'll probably not be deported at all. Likely worst case is that he has to go through a vetting process like somebody who applies to come here legally, and ends up with a Green card.

And, anybody who's telling him otherwise is almost certainly a Democrat who wants him scared.

# posted by

Brett : 5:25 AM

Now to the conspiracy to elect somebody other than Trump via faithless electors.

Mista Wiskas is right, there wouldn't be anything "unconstitutional" about it.

There wouldn't be anything "unconstitutional" about secretly setting up speed cameras on federal highways, and passing a law making the legal penalty for speeding on a federal highway slavery. Go read your 13th amendment, it would be constitutional. Make it under a year of slavery per count, and you wouldn't even have to permit jury trials. You could soon have much of the population enslaved. Well, or DC burned to the ground, more likely.

There wouldn't be anything "unconstitutional" about setting the tax rate for everybody at 100%, and then just confiscating everything. Pass a law, poof, everything is the government's. Until the government fell.

I could craft other examples, so could you. The Constitution technically permits many things which would be just cause for revolution.

Overturning the outcome of an election just because you don't like how it turned out? Belongs on that list.

Seriously, Sandy, if you want a revolution, a real, shooting, people dying in the streets, politicians hung from lamp posts, revolution, this is the way to get it. And I doubt you'd like how it turned out, given that it's my side of the political divide that has most of the guns.

# posted by

Brett : 5:38 AM

This legalistic stuff is Ciceronian in the worst sense. Especially since despite 40 years of Reagan inspired inequality, Citizens United, etc., a direction that is about to get much worse, that is, a continued and grave dissociation of the citizen from their rightful share of meaningful labor power and value, the answer lies, in the potential of civil society to come together and defend the rule of law from below. Let's recall that Sanders ran the most successful democratic socialist campaign in the history of this republic. Without using what is left of this grotesque Presidential constitution to regain political power for working citizens, tweaking the electoral college is out of reach.

Gen. Mattis is known to carry Marcus Aurelius around in his kit bag, but popularized the 1st Marine Division's motto "no better friend, no worse enemy", a paraphrase of the famous self-made epitaph for the Roman dictator Sulla, in his open letter to all men within the division for their return to Iraq. That's an image of the future if the nexus of citizen power and meaningful work cannot be reestablished. In my view, initiatives like IRV in Maine are concrete steps in the necessary reinforcement of representation. Let's leave the constitutional hail mary ideas for Tim Tebow....

# posted by

Project on Civic Democracy : 6:19 AM

byomtov challenges the "legitimacy" of the interests.

First, my summary is a form of shorthand. The interests really are for the people (or some segment) of said states. Second, it was to me realistically appropriate to balance interests, even unsavory ones. Finally, I'm at least wary about the whole idea. But, the op-ed appeals to the Framers. They set it up the EC for various purposes & independent electors overriding the actual voters like this was but one.

===

Mark Field. The last sentence of the first paragraph is "Sometimes, the voters will fail us severely." Is "sometimes" the problem? Maybe, I'm too optimistic. As to the second, he points out to my use of "undemocratic." He would have a good case if SL wanted the electors (or the House?) to choose Hillary Clinton. He does not.

He talks about "choosing a highly qualified Republican." It's credible to say electors have that power. But, it is not "democratic" for them to do so. And, if it goes to the House the expectation was they would pick from the top three electoral vote winners. There are but two though we can pretend there is three by looking at the popular vote. That would at best toss one option, who received a few percentages of the vote. It was be rather undemocratic to choose him.

I'd note that it is not just "traditional" that I'm concerned about. It is the current understanding backed up by long tradition. Republicans have violated traditions but unsure about the calculus that justifies this for that reason. If the final vote was 270-268 (if Clinton won PA and MI), I'd be more open to that since the tiny margin could justify it taking everything into account. But, anyway, it helps that it is just a thought experiment.

Anyway, Brett fine-tuning what his preferred candidate "said" is charming on some level. If only he gave so much benefit of the doubt to 'the left.'

# posted by

Joe : 6:42 AM

I'm not fine tuning what he "said", I'm relating what he actually said.

"Donald Trump: What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably two million, it could be even three million, we are getting them out of our country or we are going to incarcerate. But we’re getting them out of our country, they’re here illegally. After the border is secured and after everything gets normalized, we’re going to make a determination on the people that you’re talking about who are terrific people, they’re terrific people but we are gonna make a determination at that-- But before we make that determination-- Lesley, it’s very important, we want to secure our border."

I don't particularly care if the left wants to wallow in the delusion that the country just elected Hitler President, and the death camps open up in 3 months. I'm under no obligation at all to join in that insanity.

# posted by

Brett : 7:19 AM

Overturning the outcome of an election just because you don't like how it turned out? Belongs on that list.

How about stopping the counting of the votes, for fear that your candidate will lose in the end?

And what do you think about Gov. McCrory's efforts to overturn the outcome (not call for a recount) in NC?

# posted by

byomtov : 8:09 AM

"How about stopping the counting of the votes, for fear that your candidate will lose in the end?"

That would be pretty nasty, unlike, say, stopping the umpteenth recount after the first few have demonstrated your candidate did win.

"And what do you think about Gov. McCrory's efforts to overturn the outcome (not call for a recount) in NC?"

I have not followed this closely, but my understanding is that he is alleging widespread fraud. If he can establish that enough fraudulent votes were cast to exceed the margin of the election, then ideally the election should be held over. There's not really any point in establishing that fraudulent votes were counted right, and there is, thanks to ballot secrecy, no feasible way to remove them from the count.

It does not appear to me that McCrory is behind any effort to have the legislature simply overturn the election outcome by fiat. Looks like media speculation, rather.

# posted by

Brett : 8:20 AM

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# posted by

Bart DePalma : 8:45 AM

BD: "offer such a unconstitutional assault on democracy"

Mr. W: What's unconstitutional about it? The entire purpose of electors is to moderate the voters* choice.

Art. II, sec. 1: Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors...

State laws award electors to the candidate who won the most popular votes statewide or by congressional district.

29 states mandate their electors voted for the winner. 21 states do not. The rest are unclear.

No state awards electors to a third party who did not run for election and received no votes.

Violating the state laws violates the Constitution.

# posted by

Bart DePalma : 8:54 AM

Project on Civic Democracy said...Let's recall that Sanders ran the most successful democratic socialist campaign in the history of this republic.

Obama ran the most successful democratic socialist campaign in our history. The Democrats are now openly an EU-style labor party and both of their presidential candidates were running as democratic socialists.

# posted by

Bart DePalma : 8:58 AM

Brett: Seriously, Sandy, if you want a revolution, a real, shooting, people dying in the streets, politicians hung from lamp posts, revolution, this is the way to get it. And I doubt you'd like how it turned out, given that it's my side of the political divide that has most of the guns.

Sandy is utterly clueless about how the citizenry would react to his suggested coup d'tat.

Within a month, several hundred thousand citizens would besiege Washington, many of them armed.

Such a coup d'tat feeds right into the paranoid world view of the militia movement and the Democrat rent-a-mobs, who will almost certainly take to the streets

God knows how the military, federal law enforcement and the affected state and local police departments would react.

# posted by

Bart DePalma : 9:09 AM

SPAM I AM! calls Obama a socialist elected by Democrats and Trump a fascist elected by Republicans. Apparently Ayn Rand hasn't convinced enough voters to be libertarians to prevent such from happening. But what seems obvious is that SPAM prefers the person he reviled during the Cruz Canadacy as a fascist. Must be that Mediterranean blood coursing through SPAM's veins while high in CO. Meantime, SPAM continues on the Trump enemies list.

# posted by

Shag from Brookline : 9:17 AM

Joe, I see what you mean about "undemocratic"; missed that on first read. I agree.

As for the voters failing us, I only demurred because this time, at least, it wasn't the voters who failed. They chose the right person.

# posted by

Mark Field : 9:38 AM

Bart, the entire point of having electors is the possibility they might not do what the voters want.

It's a stupid, undemocratic system, but it's the one we're saddled with. Sandy's proposal is well within the letter and spirit of the Constitution.

# posted by

Mista Whiskas : 10:32 AM

It should be noted that SPAM I AM!'s currently favored fascist President-Elect, the head of the Republican Party, has certain Russian connections, which brings to mind the Soviets' alliance with European fascists in the late 1930s, before the Soviets allied with the US and UK to defeat those fascists. What can we expect for NATO from SPAM'1 fascist?

# posted by

Shag from Brookline : 10:43 AM

# posted by

Brett : 10:59 AM

The Legal History Blog's Sunday Book Review Roundup (11/20/16) included:

"James Livingston’s humorous takedown of former Economist editor Marc Levinson’s An Extraordinary Time: The End of the Postwar Boom and the Return of the Ordinary Economy in the New Republic also offers a short history of Hayek’s legacy and mid-century economic thought."

It is an interesting review on globalization/technology from the view of economics. SPAM I AM! will probably object to the review's Hayek [cough, cough] economics comments. Free market economics is not an answer to the current situation.

# posted by

Shag from Brookline : 11:09 AM

Brett's:

"Sandy's plea to the electors to be unfaithful isn't based on new information about Trump or Clinton. It's just based on his not liking Trump."

ignores that Sandy's plea is based upon old information about Trump during the campaign AND new information with steps to date taken by the Trump transition. All of that information, as well as additional information that may come out, including how Trump may address potential/actual conflicts of his business empire with Trump's constitutional duty to "take care " of the federal government's business and not his private business empire, concern Sandy, and many others. It is all this information that is troubling. As to likability, even Brett in comments at this Blog over the past few months has indicated disliking things said and done by Trump during the campaign. What's to like about the 2005 Access Hollywood tape/video that revealed when Trump's son Barron was enceinte mere what Trump could do as a celebrity of a sexual nature with women? And there's so much more, including Trump's recent efforts to intimidate the media and perhaps to "change libel laws," not to mention his to Russia with love affair. Brett may be concerned with how the Trump Administration may treat children of mixed-race marriages based upon the "alt-wrong" approach.

# posted by

Shag from Brookline : 11:35 AM

"AND new information with steps to date taken by the Trump transition."

What new information? That he's keeping his campaign promises? Granted, that is a bit unusual, but actually represents a confirmation of what was already known, not a revelation.

There's nothing here that wasn't available to be taken into account by the voters. Sandy just doesn't like that the voters didn't agree with him.

New information would be something like Pizzagate proving to be real. Not that Trump is obnoxious, and apparently not a liberal Democrat.

# posted by

Brett : 11:51 AM

The point of having electors had nothing to do with the voters, they were expected to be appointed by state legislators.

Delegation to agents was a common thing at the time, given lousy communications and long travel times. That doesn't mean the agents were supposed to decide the people who'd chosen them were idiots, and replace their judgment with their own. Rather, they were supposed to be able to react to unanticipated information.

You contradicted yourself in the space of 4 sentences. The first sentence says, correctly, that the Framers expected the legislatures to appoint electors. In that case, then, the Framers could not have intended that the electors blindly follow the wishes of the voters. Indeed, there's lots of evidence that they intended the electors to exercise independent judgment.

This was a specific application of a more general rule. The Framers were Burkeans when it came to the role of representatives and their constituents: “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” We can see this from the fact that they rejected a clause permitting voters to "instruct" their representatives. The First Congress again rejected such a measure when Madison introduced the Bill of Rights. Madison's words in opposition to that proposal demonstrate Brett's error:

“[I]f we mean nothing more than this, that the people have a right to express and communicate their sentiments and wishes, we have provided for it already [right to petition]. … If gentlemen mean to go further and to say that the people have a right to instruct their representatives in such a sense as that the delegates were obliged to conform to those instructions, the declaration is not true. Suppose they instruct a representative by his vote to violate the Constitution, is he at liberty to obey such instructions? Suppose he is instructed to patronize certain measures, and from circumstances known to him but not to his constituents, he is convinced that they will endanger the public good, is he obliged to sacrifice his own judgment to them? Suppose he refuses, will his vote be the less valid. … What sort of a right is this in the Constitution to instruct a representative who has a right to disregard the order if he pleases?”

# posted by

Mark Field : 11:55 AM

I rarely agree with Brett, but I do. The Constitution by its text permits overturning election results, but actually doing it would effectively be a coup de etat and could lead to massive violence.

Trump is the President-elect of the United States. Don't be like the South in 1860. Grow up and accept the election results, and work to defeat him in 4 years.

# posted by

Dilan : 12:18 PM

Some people see the agency dilemma as a problem, and some people see it as an opportunity to screw over the principle. Not hard to see which camp you and Sandy fall into.

Sandy asks, will the United States survive this election? I answer: Easily. But it won't survive his scheme to overturn the result of the election, if it actually succeeds.

# posted by

Brett : 12:20 PM

It amazes me that Mark Field, a living constitution advocate if there ever was one, would reject the idea that the last 225 years of history inform the meaning of the electoral college.

# posted by

Dilan : 12:23 PM

The voters chose Trump. The popular vote is meaningless except as an indictment of the electoral college. If we had a popular vote system, the campaign and vote count would be different.

# posted by

Dilan : 12:27 PM

Dilan, it shouldn't. The whole point of living constitutionalism is that it takes you where you want to go, regardless of anything that might get in the way. Mark wants to get to the Electors being entitled to screw over Trump voters. Living constitutionalism takes him there. If he wanted them bound, it would get him there, too.

That's the problem with living constitutionalism. It doesn't constrain, at all, by design.

# posted by

Brett : 12:30 PM

It's worth noting that this whole discussion is a good example of why we shouldn't care what the framers thought. They were slaveholders and idiots. The modern processes are a huge improvement over the dumb system they conceived.

Yes, we should get rid of the electoral college. But electors who follow slavishly the voters of a state is a better system than electors as Platonic guardians. One of the smartest things this country could do is burn the Federalist Papers. We are much better off when we are not trying to figure out what they intended.

# posted by

Dilan : 12:31 PM

Brett, that's not how living constitutionalism is supposed to work.

The point is you take into account the evolution if the law, precedent, settled traditions, etc. Mark is doing exactly the opposite- just arbitrarily saying we can ignore all that in favor of some lost original meaning.

# posted by

Dilan : 12:35 PM

They were slave owners, but it would be a huge mistake to think they were idiots. The Constitution is a mix of the inspired and utter failures. But we only recognize the failures because they got tried, we should not be silly enough to think that if we were in the founders' place we'd have done better.

There is, in fact, much wisdom in the federalist papers. (Much more in the anti-federalist papers, of course; Subsequent events proved them quite prescient about how the Constitution would turn out.) Starting from scratch we could do worse than they did, and probably will soon, out of a foolish worship of democracy.

# posted by

Brett : 12:38 PM

I hope Dilan and Brett are enjoying their conversation about imaginary me.

Some people see the agency dilemma as a problem, and some people see it as an opportunity to screw over the principle. Not hard to see which camp you and Sandy fall into.

When it comes to Congress, I fall into the same camp as Burke, Madison, and most of the rest of the Framers. Not for originalist reasons, but because I think it's the right answer.

As for the EC, you're the one who's caught: you claim to be an "originalist", yet you reject what the Framers intended in this case. The only way you get to your conclusion is the one Joe (and Dilan) pointed out: reliance on custom and practice (IOW, "living constitutionalism"). That's because the whole point of "originalism" is that it takes you where you want to go regardless of what gets in the way. You want the electors to be bound, so they are. If you wanted them not bound, you'd scream about "originalism" and "text". So while you're chortling with Dilan, he completely undercut your philosophy.

# posted by

Mark Field : 12:41 PM

"Brett, that's not how living constitutionalism is supposed to work."

No, that IS how it's supposed to work. It's just not how it's justified. Pretext vs reality. That is the reality of living constitutionalism: That it's an excuse to replace meanings you don't like with something more congenial. It never, ever, forces you to accept that the law has evolved in a direction you don't like.

# posted by

Brett : 12:42 PM

Heh, Dilan realized Brett's contradiction too. I'll just correct one of his statements:

Mark is doing exactly the opposite- just arbitrarily saying we can ignore all that in favor of some lost original meaning.

I'm not doing that at all. I'm trolling Brett by pointing out that his own theory of constitutionalism undercuts the conclusion he wants to force here. Just as you're doing.

Brett loves to make pseudo-originalist arguments, but he's most often flat wrong on the history. I point out those errors, but that doesn't make me an originalist.

# posted by

Mark Field : 12:45 PM

"As for the EC, you're the one who's caught: you claim to be an "originalist", yet you reject what the Framers intended in this case."

Nah, I concede that as a legal matter, the electors are entitled to vote for whomever they please, the voters be damned. I merely go on to point out that we're then entitled to string them up, along side the people who suborned them, if they don't have an awfully good excuse. And Sandy Levinson didn't like how the election turned out isn't an awfully good excuse.

Never confuse what you're formally allowed to do, with what you can get away with. They're separate issues. The rules of law are like the rules of any game, they only bind so long as you're willing to play that game. Don't think you can push them as far as you like, and not end up with too many people deciding they don't like the game anymore.

# posted by

Brett : 12:48 PM

Mark:

If you are just trolling Brett, that's one thing. But if you seriously believe for even one millisecond that at this point in history we can have an electoral college overturn an election result in the current sense of the term (i.e., victory in the electoral college based on state vote totals), that would be absolutely out of the question and inconsistent with the meaning of the electoral college as we now understand it.

Brett:

I agree the Constitution is a mix of the inspired and the insipid. But the thing is, the Federalist papers were not written as an interpretative guide to their intentions-- they were an advertising pamphlet to promote the adoption of the Constitution. And, of course, the authors had no idea what the contemporary problems would look like or how the country would evolve.

In contract law, if you have a written contract that provides for one thing, but the parties do something else in performing the contract for 15 years, you aren't allowed to go back to the words of the contract and repudiate everything that the parties did. It's no different with a Constitution-- society has evolved, we have developed traditions, and a common law, and by the way, the framers understood that this would happen. So I am much more concerned with how this country has come to interpret the electoral college than what John Jay or James Madison may have written about it.

# posted by

Dilan : 1:07 PM

"And, of course, the authors had no idea what the contemporary problems would look like or how the country would evolve."

That's for sure. That whole faction thing, for instance. Like I said, I think the anti-federalists actually were the more prescient group. And Hamilton? Planting an acorn with the intention of obtaining an oak tree, I think. Quite insincere about limitations on federal power. (Though I think in his wildest dreams he never saw the Leviathan we have now.)

" but the parties do something else in performing the contract for 15 years,"

Hm, but doesn't this raise the issue of who the parties really are? Suppose the legislature, executive, and courts do "something else" for 15 years, but the public all the while is bitterly complaining? The public thinks it's one of the parties here, after all, maybe the chief one. Are there reliance interests where the action was contested the whole while?

Not really applicable in the case of the EC, of course. Thinking more of Roe v Wade, federal power grabs, that sort of thing. Where the government imposes a change, holds it for a while against opposition, and then claims the matter is well settled tradition.

But the EC voting according to the outcome of the election is not bitterly contested, it's genuine tradition, and with the law on it's side; Whether you regard the College members as agents of the voting public, or agents of the legislature, both are agreed that they're bound agents, performing a pro-forma role. Not actual decision makers.

Formally, they could do otherwise, but it's like my example of Congress enacting a 100% tax. A formal act that so violates expectations as to shatter the compact that gives them the power to do it.

# posted by

Brett : 1:36 PM

Brett:

I will leave aside stuff like Roe. That's definitely contested ground.

But my point is more about uncontested ground, and I think you agree with it. In other words, if there's a constitutional provision that we as a society are all getting wrong, but there's a consensus (with no significant faction dissenting as there is with Roe), everyone agrees on the (wrong) meaning, and the system is functioning with everyone relying on the interpretation, I don't think you can step in (other than by constitutional amendment) and try to reaffirm the original meaning.

And the electoral college is that. I think if an electoral college overturned any electoral result, favoring either party, it would be seen as illegitimate by large numbers of people. Because we have a societal consensus on what the electoral college means, and given that consensus is so widely held, with so little dissent and so much reliance (everyone on election day, from voters to campaigns to the media, assumes the electoral college will work in a certain way in accordance with the tradition), it really doesn't matter anymore that the framers actually intended something different.

# posted by

Dilan : 1:42 PM

Mr. W: Bart, the entire point of having electors is the possibility they might not do what the voters want.

Article II granted the state legislatures the power to determine what the electors would do and those legislatures generally bound the electors to the results of the election.

None of the Founders conceived of Article II permitting the coup d'tat Sandy is proposing to replace the president-elect with a non-candidate who never stood for election.

# posted by

Bart DePalma : 1:57 PM

Your project may have a better chance for success if you could convince people to stop sending death threats to republican electors. Apparently a lot of people want to kill electors who don't switch their vote. All republican electors have received death threats and they are all pissed off about it. Google 'electoral college death threats.'

# posted by

Jeff H. : 1:59 PM

"I don't think you can step in (other than by constitutional amendment) and try to reaffirm the original meaning."

Obergefell! You really do understand the outrage. Because that reasoning doesn't just apply to attempts to reaffirm original meanings. It applies to the imposition of new meanings.

Nobody really thought the 14th amendment was about sex, let alone 'gender', until the ERA failed. The only reason they decided it was about sex, and then gender, was that the ERA failed, changing it by amendment looked infeasible.

It wasn't the law evolving, democratically. Democratically the people did what was in their power to stop the courts from imposing this evolution.

You might become an originalist yet.

# posted by

Brett : 2:04 PM

No Brett, I won't.

I will concede that Obergefell and Roe are not on the same ground as the principle that the state votes determine the electoral count. There are significant dissenting factions with respect to Obergefell and Roe.

But the problems with originalism are (1) we really shouldn't care what the framers thought, both because they were morally questionable and not particularly brilliant, and also because society has changed so much in 225 years; (2) it doesn't do what you think it does-- originalist arguments are just as manipulable as other constitutional interpretation arguments; (3) originalism dumps the common law system, which is one of the greatest things about our legal system, because it allows the law to adapt to new situations and new problems and to fuse tradition and precedent with things we have learned since; and (4) originalism is based on a fundamental lie, which is that the framers actually intended that their original intent govern forever, when in fact they were great believers in the common law system and wrote it into the Constitution.

So no thanks to originalism.

The thing you don't realize is that you can be a living constitutionalist and still reject Roe or Obergefell. Just like it's possible to accept the position that contracts are interpreted by the parties during their performance and still contend that a particular interpretation is incorrect and legally untenable.

# posted by

Dilan : 2:17 PM

I view Prof. Levinson's suggestion as a thought experiment more than an actual proposal. As byomtov was the first to point out, there are no "honorable" elected R officials who would participate in any such plan, and as Joe noted it's pretty undemocratic as proposed. But let's treat it as a thought experiment and see what arguments can be made in its favor.

Let's start with text and original intent. Both of those permit the plan, and it's not really ambiguous. As Brett eventually agreed, the plan meets the letter of the law.

Against that we have the point that Joe and Dilan correctly raised, namely that custom and practice have modified the EC out of all recognition from its original intent and purpose. That custom and practice are important when it comes to perceived legitimacy in any system.

I'm not sure those are the only factors relevant to legitimacy, though. One pretty important legitimating factor in any democratic system is majority rule. That's a fundamental principle in any democracy (within some limits that I won't get into here), and it's also recognized as such by custom and practice.

At this point we have a situation in which one factor rests on custom and practice but on no other foundation (the EC was a kludge, as they knew at the time). On the other we have a very fundamental principle which the EC undermines, and which is also supported by custom and practice.

I think people could reach different judgments on the right approach based on the factual circumstances. For example, suppose an extreme case in which one candidate won the bare minimum of states with 270 EVs by a single popular vote each, and lost all the rest unanimously. That's absurd, but would anyone seriously want to defend the EC in that case? Would it matter who the 2 candidates were, that is would it be important if the winner were Hitler and the loser were Lincoln (or vice versa)? Either way, I suspect this example would challenge anyone who advocated some quasi-literalist interpretation of the text.

So I think one can disagree with Prof. Levinson, but that the disagreement is less about text than about making a judgment about the right way to go forward.

# posted by

Mark Field : 2:20 PM

Nobody really thought the 14th amendment was about sex, let alone 'gender', until the ERA failed.

Again, this is wrong, or at least overstated. One of the first cases brought under the 14th A was a case (Bradwell v Illinois) arguing that states couldn't discriminate against women lawyers on the basis of sex.

Now, the Court ruled against the plaintiff in that case, but plenty of people held that view at the time and the issue never really went away thereafter. I doubt you'd find much support for Bradwell anywhere today.

# posted by

Mark Field : 2:25 PM

It's fun to watch Bart and Brett here, on the one hand they feel duty bound to be originalists, on the other they don't want anything of what the original point of the EC and electors were for. If they just reported the vote tallies they would have chosen couriers, but the entire point of having electors make the actual decision is that the Founders wanted democracy mediated by a natural elite. That leaves the system open to the kind of undemocratic plans such as Sandy's. Brett conceded it wouldn't violate the Constitution, he just thought it would be outrageous. I'm not sure it's anymore offensive to democratic principles than going with the EC over the popular vote to begin with, which of course doesn't seem to bother them. But see, they liked the result there, so it's different (Brett's charge that it's Mark that's trying to reason to his preferences is especially rich, as I've said, the least self aware man in the universe).

# posted by

Mista Whiskas : 2:33 PM

"Article II granted the state legislatures the power to determine what the electors would do"

Where does Article II state that? My version states only that state legislators appoint, in such manner as the Legislature thereof may direct, a number of electors. This says nothing about having the power to determine what electors would do, it just says they have to appoint electors and they can decide how to do that. It says not a thing about determining their choice. It later says that they are to meet and vote for two persons, one of which can't be from the state the elector is from (12th) but that's all. No language about determining their vote.

# posted by

Mista Whiskas : 2:43 PM

Mr. W:

The Founders intended the electors to be agents of the state legislatures who would select a president the way the college of cardinals selects a pope. However, the state legislatures had a different idea and universally bound their agents by law to respect the popular vote for President by the 1820s.

# posted by

Bart DePalma : 3:15 PM

" One pretty important legitimating factor in any democratic system is majority rule. That's a fundamental principle in any democracy (within some limits that I won't get into here)"

I don't think this is fundamental at all. America has never had majority rule and yet we in the main have always thought our government was legitimate, except once after the 1860 election where the South threw a tantrum.

America never thought elections that had a limited franchise produced illegitimate results. it never thought the Senate was illegitimate. It never thought state legislatures pre-Reynolds v. Sims were illegitmate. And we accepted the legitimacy of every President who lost the popular vote and won the electoral college.

That suggests that while majority rule may be the best system (I think it is), it has NOTHING to do with democratic legitimacy. Plenty of non-majoritarian governments are completely democratically legitimate.

So there's no reason to declare Trump illegitimate because he lost a meaningless popular vote figure (remember, the popular vote totals will be different if the system gave the popular vote winner the presidency). That's just an argument Mark WANTS to make, because he hates Trump.

# posted by

Dilan : 3:34 PM

Every sensible person hates Trump. That doesn't distinguish me from anyone else.

But as for majority rule, of course it's a fundamental principle of a democratic system. The first definition in Merriam-Webster is "government by the people; especially : rule of the majority". This has been true since ancient Athens.

That said, when I say this (or when M-W says it) that doesn't mean that a system has to have pure, untrammeled majority rule in order to qualify as a democracy. Systems can place limits on majority rule and yet still consider it a fundamental principle.

# posted by

Mark Field : 3:56 PM

Legitimacy is based on winning by accepted rules. Not so much by what the rules are, so long as they ARE accepted.

Right now a fairly strong faction within the Democratic party is attempting to undo the results of the election, because they, like Sandy, don't accept that legitimacy is based on winning according to the rules. They think legitimacy requires being somebody they themselves find acceptable.

And that really boils down to being a Democrat... Partisan polarization has gotten that extreme.

The rent a riots are to create the impression of widespread public horror at Trump winning. Now they're trying to pressure, including death threats, the electors into not voting as pledged.

You know what the next step for an utterly illegitimate monster is, if that fails. The Secret Service are going to be earning their pay

# posted by

Brett : 4:11 PM

"Every sensible person hates Trump. That doesn't distinguish me from anyone else."

You say that ironically, I hope, in a nation where about 60 million people voted for Trump.

# posted by

Brett : 4:13 PM

Legitimacy is based on winning by accepted rules.

As we've already established, Prof. Levinson's proposal operates within the literal terms of the Constitution. Putting that aside, the party which violates "accepted rules" hither and yon (Merrick Garland? Bush v Gore?) is in no position to make this claim.

Right now a fairly strong faction within the Democratic party is attempting to undo the results of the election

Citation omitted.

in a nation where about 60 million people voted for Trump.

I'm sure you understand that, by definition, half of any population is below average.

The rent a riots

A right wing lie. And from the party of the Brooks Brothers Riot, no less.

# posted by

Mark Field : 4:25 PM

"That said, when I say this (or when M-W says it) that doesn't mean that a system has to have pure, untrammeled majority rule in order to qualify as a democracy. Systems can place limits on majority rule and yet still consider it a fundamental principle."

The fact that systems place limits on majority rule means it isn't a fundamental principle of democratic legitimacy.

The fact that it is part of the dictionary definition is irrelevant to that point.

Look, you understand this, honestly. You know, for instance, that unelected Supreme Court decisions protecting minority rights are not inconsistent with democratic legitimacy and indeed can sometimes make democratic outcomes MORE legitimate.

So why do you pretend that this principle that clearly ISN'T crucial and that we violate all the time is in fact the foundation of democracy? No reason other than you hate Trump. If Clinton had won the EC and Trump the popular vote you wouldn't make this argument.

# posted by

Dilan : 4:29 PM

Dilan, I've argued that majority rule is fundamental to democracy since around the time you were born and I was a political theory major in college. It has nothing to do with the Odious Donald. I doubt you could find a political theorist or a Founder (or a dictionary) to agree with your usage of the term "fundamental" in this context.

# posted by

Mark Field : 4:46 PM

"However, the state legislatures had a different idea and universally bound their agents by law to respect the popular vote for President by the 1820s."

That's not the Constitution though.

# posted by

Mista Whiskas : 4:54 PM

"Legitimacy is based on winning by accepted rules. "

But when we're talking about *democratic* legitimacy then, well, yeah undemocratic rules undercut that legitimacy. The question of whether such rules should be accepted gets begged.

It's a bit much to see Trump supporters complain about the other side not accepting the results of the election when Trump famously said he wasn't sure he'd accept the election results-unless he won. Those pointing out how undemocratic it is for the popular vote winner to not be elected are just saying the election was rigged, which sounds familiar.

# posted by

Mista Whiskas : 5:02 PM

Dilan, come on, of course majority rule is considered by most to be pretty central to the idea of democracy. If you told your friends 'let's vote on where we eat tonight' and then proceeded to engage in some process where the majority choice was ignored you'd get quite visceral reactions about how something wrong just happened. The fact that we've regularly violated the idea in our history doesn't refute that, you could say the story of the U.S. is having great principles and regularly falling short of them.

# posted by

Mista Whiskas : 5:09 PM

BD: However, the state legislatures had a different idea and universally bound their agents by law to respect the popular vote for President by the 1820s.

Mr. W: That's not the Constitution though.

The Constitution granted the state legislatures plenary power in this area.

Art. II, sec. 1: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

Thus, the States have every power to place conditions on the appointment and have frequently exercised that power. None have ever concluded the Constitution does not grant them this power.

# posted by

Bart DePalma : 6:07 PM

"Dilan, I've argued that majority rule is fundamental to democracy since around the time you were born and I was a political theory major in college. It has nothing to do with the Odious Donald. I doubt you could find a political theorist or a Founder (or a dictionary) to agree with your usage of the term "fundamental" in this context. "

Mark, your definition of "fundamental" seems to mean "expendable". Because you are obviously ignoring that nobody has ever required majority rule to confer democratic legitimacy.

So basically we are in Alice in Wonderland territory here. If you want to use "fundamental" to mean something it doesn't mean, fine, then in Mark-land it's fundamental. In the real world, a majority vote is not a prerequisite of any sort to democratic legitimacy.

The Electoral College, as selected by state voters, specifically, has democratic legitimacy. It has been accepted for a couple of centuries now.

"I, Mark Field, want to act like a petulant 2 year old and not accept the established rules of determining the result of an election because I didn't like the winner" is not the test of democratic legitimacy. He will be your President. You don't have to like him, you can exercise your First Amendment rights to oppose him, etc. But he will be your President and refusing to recognize his legitimacy will reflect badly on you.

And do me a favor and don't call for what is effectively a coup de etat to depose him through faithless electors. I kind of like living in a place that isn't in a state of civil war, and I'd appreciate it if my fellow citizens will respect the election results (just as they called on Trump to when they thought that Hillary was going to win). There's another election in 4 years, plus impeachment if there are grounds.

# posted by

Dilan : 6:29 PM

"Dilan, come on, of course majority rule is considered by most to be pretty central to the idea of democracy. If you told your friends 'let's vote on where we eat tonight' and then proceeded to engage in some process where the majority choice was ignored you'd get quite visceral reactions about how something wrong just happened. "

If we had used a non-majoritarian process for years, and nobody had ever complained, I wouldn't expect any such visceral reactions.

Or more to the point, I would take any visceral reaction to be dishonest.

# posted by

Dilan : 6:31 PM

Bart, that's a ridiculous interpretation. That's not about conditions it's about the process of choosing electors.

# posted by

Mista Whiskas : 6:58 PM

This comment has been removed by the author.

# posted by

Joe : 7:03 PM

Dilan

But people have complained all through our history. About segments of the population being denied the vote, about the undemocratic nature of the Senate, etc., etc., and we've long had people point out the undemocratic nature of the EC (in fact in my high school civics class it was taught as 'we don't really have direct election of the President because the Founders were wary of democracy'). It's not been too much fuss because usually the popular vote winner also wins the EC.

Throughout our history we've recognized aspects of our system as counter to true majority rule and seen that as undercutting our democratic rhetoric, that's why we've enacted so many reforms (like the 17th and 'faithless elector' laws). We haven't changed them all because that kind of change is very hard in our system, but that doesn't mean people in principle don't notice the difference between democratic ideal and our practice.

# posted by

Mista Whiskas : 7:05 PM

This comment has been removed by the author.

# posted by

Joe : 7:07 PM

A few thoughts.

I'm not an originalist -- though who knows with all the meanings -- but the "common law" approach to me seems originalist in that it was how the Constitution was expected to be applied besides being a logical application of the text and an appropriate way for various reasons, including small "r" republicanism.

Second, think Prof. Levinson is serious here -- his fears were clear before the election though perhaps acerbated by him being appropriately worried unlike some of us. Black swans attack! I'm not a fan but maybe it would be smart if some do vote for someone else. This would be a warning sign and maybe help the movement against the unpopular Electoral College or at least some of the plans to tweak it.

Finally, one participant of this blog separately cites Thomas' dissent referencing it in the term limits case, but Ray v. Blair is directly about the Electoral College. It supports the current policy of bound electors (though the actual opinion is somewhat limited) with two dissenting. It also cites MCPHERSON v. BLACKER [1892], which has come up at various times. That opinion has this comment:

Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors, the original expectation may be said to have been frustrated.

But, it notes such and such rule for electors is within the textual powers of the Constitution. It continues:

Still less can we recognize the doctrine that because the constitution has been found in the march of time sufficiently comprehensive to be applicable to conditions not within the minds of its framers, and not arising in their time, it may therefore be wrenched from the subjects expressly embraced within it, and amended by judicial decision without action by the designated organs in the mode by which alone amendments can be made.

The opinion understood that "original expectation" can be frustrated, especially as "the march of time" results in "conditions not within the mind of its framers, and not arising in their time." This in 1892. The caveat is if something is "expressly embraced" that changing times could not result in new rules.

But, the Constitution repeatedly speaks in broad open-ended terms & often the principles at stake are not even expressly stated but somewhat implied. And, the Framers wrote the document this way advisedly. FWIW, you can see it in their very notes advising how to edit the final version.

# posted by

Joe : 7:10 PM

As to Brett's link to what Trump "said," one is left with the advice -- from experience -- that any one thing he said shouldn't be taken as final or anything.

# posted by

Joe : 7:21 PM

Typo: Fugitive Slave Law of 1893 should be 1793...

# posted by

Ed Bott : 7:31 PM

"As to Brett's link to what Trump "said," one is left with the advice -- from experience -- that any one thing he said shouldn't be taken as final or anything. "

Still less things he hasn't said, I should think.

# posted by

Brett : 7:58 PM

Eh, Trump has never said that he intends to run the country so as to profit his businesses, but his behavior makes it clear that he plans to do that.

# posted by

Mark Field : 9:38 PM

As a follow up to Mark's observation on the Trump business empire:

Query: Might Trump properties in foreign countries become targets for dissidents of US foreign policy? If so, how might Trump as President react? Does the Article II "take care" obligation of the President also extend officially to taking care of President Trump's personal business empire? Does Article II provide for a part-time presidency?

# posted by

Shag from Brookline : 5:00 AM

# posted by

Brett : 5:05 AM

It's also been noted that the times have changed significantly since the days of Washington and Jefferson with the growth of the nation, making the actual job of the President more complex than back in those agrarian days. Brett seems to be suggesting that Trump as President should be able to tend to his farm(s), pulling weeds - and even radishes.

By the Bybee [expletives deleted], didn't President-Elect Trump make a statement to the effect that his business were not that important to him as President-Elect?

# posted by

Shag from Brookline : 5:23 AM

Query: Before the Trump campaign hired Bannon, was Trump aware of Breitbart? Did he ever read it? Has Trump read Breitbart recently regarding shifting from Trump's campaign promises?

Perhaps Trump's campaign promises were a variation of the radio/TV commercial:

"Promise her anything, but give her Arpege."

Perhaps Airwick would be more appropriate.

# posted by

Shag from Brookline : 5:32 AM

I'm pretty sure Trump was aware of Breitbart.

I've read Breitbart lately concerning said "shifting". Nobody is particularly confident that the news reports on this score are accurate. The campaign to get Trump's base to turn on him isn't working very well, mainly because the media conducting it have no credibility with Trump's base anymore.

# posted by

Brett : 7:26 AM

"By the Bybee [expletives deleted], didn't President-Elect Trump make a statement to the effect that his business were not that important to him as President-Elect?"

He's handing them off to his children to run, but not liquidating them as some have demanded. I think this is a reasonable compromise, and about what I expected him to do. His money isn't in fungible assets like stocks and bonds, it's in businesses and real estate that can't be sold off in a hurry except at ruinous losses.

# posted by

Brett : 7:38 AM

Brett I'm curious what you think about Trump's decision not to prosecute Clinton. This seemed like a very important issue for you during the campaign, I seem to remember you saying the previous administration coming to the same decision made our country something like a banana republic with no rule of law.

# posted by

Mista Whiskas : 7:42 AM

So what's Trump's base's view of Trump's on-the-record meeting with the NYTimes? The transcript is available at the Times' website. There seems to be some shifting from Trump's campaign promises, including Trump saying some flattering things about the Times. Perhaps Brett is not confident about the accuracy of the transcript. The element of Trump's base that Brett represents is too base to turn on Trump, who campaigned on having gamed the political system and thus is in a position to fix - claiming only he can fix it - and now it seems he's gaming the office of the presidency regarding his business empire.

CAVEAT: Breitbart may be confused with BrettBart.

# posted by

Shag from Brookline : 7:47 AM

I think nothing of it, because there is, so far as I can tell at this point, no such decision. Rather, he appears to have said, (Unedited transcripts being suspiciously lacking...) that it would not be a personal priority.

That's fine, he's the President, not the Attorney General. He has other things to focus on. Other people are supposed to do things like that, I'd be content if he didn't tell them to spare her.

There's some speculation that this might even be a head-fake, intended to trick Obama into thinking that it isn't necessary to pardon Hillary. Not much chance of that, though; After it was revealed that he was emailing her on the private server using a pseudonym to conceal that it was him, it seems almost certain that he's implicated in much of what she was doing, (Always the logical expectation.) and must pardon her to protect himself.

Going to be a LONG list of pardons Jan. 19th.

Since the election we've seen a long string of "Trump is betraying his base!" stories, which generally evaporate on closer examination. I think it's a kind of disinformation campaign, aimed at driving a wedge between Trump and his base.

They're being largely ineffectual, because the media burned their credibility during the campaign, Trump's supporters are not taking any of the reports seriously.

I mean, how did those "Trump's transition is in disarray!" stories work out? The "Trump is filling his administration with lobbyists!" stories?

Only a fool uncritically accepts anything the media are saying about Trump at this point.

# posted by

Brett : 7:55 AM

I think President Obama should pardon the Clintons, assuming the Clinton would want that. And Obama could make this bipartisan by also granting pardons to Chris Christies for Bridgegate and to the father of Ivanka's husband for his conviction by Christie as US Attorney in NJ.

Perhaps Trump's shifting on the Clintons is his personal concern that he might face similar threats at some future date. One thing is clear from the Trump transition so, Trump changes. And he can change back. Read the NYTimes transcript. Unfortunately, Trump's earlier media meeting was off-the-record preventing a comparison of what a difference a day makes in the life of The Donald.

# posted by

Shag from Brookline : 8:01 AM

Oh, believe me, she'll want it, now that the Justice department isn't going to be run by allies for at least 4 years. That's got to be a scary prospect for somebody as dependent on prosecutorial discretion for their liberty as she is.

Like I said, going to be a VERY long list of pardons in January. The Democratic party is awfully exposed at this point, having paid for so many illegal activities during the campaign. Those rent a riots become a RICO offense or even terrorism, once the DoJ isn't on their side.

# posted by

Brett : 8:07 AM

Brett's closing line:

"Only a fool uncritically accepts anything the media are saying about Trump at this point."

says what about what Trump said at the NYTimes on-the-record meeting? Was Trump playing his Barnum role or showing himself, in his own words, to be undecided about his campaign promises?

Brett seems to relish the possibility that Trump may game the presidency with his business empire.

# posted by

Shag from Brookline : 8:12 AM

From the transcript, which I hadn't seen earlier:

"MATTHEW PURDY, deputy managing editor: So you’re definitively taking that off the table? The investigation?

TRUMP: No, but the question was asked."

Looks like a negatory to me, Shag. I'll read the transcript in detail later.

# posted by

Brett : 8:22 AM

Brett's rants about what Trump might do without pardons seem evidence of SPAM I AM!'s many, many claims of Trump being a fascist. It should be noted that Brett ignores the from Russia with love contacts with the Trump campaign and Putin's efforts to support the Trump campaign. Query: Might AG Jeff Sessions pursue such an investigation?

# posted by

Shag from Brookline : 8:24 AM

Brett,
I read it on Foxnews.com and the NY Post, they were reporting Conway's words. I guess she could have been misreprenting her boss (I wonder if you'd be as forgiving if Obama's press secretary did so).

On the campaign trail he promised a special prosecutor, didn't he? You and Bart defended his 'you'd be in jail' as simply representing vigorous law enforcement determination by an intended Executive. But now you're all like 'well, he's not the Attorney General so if he doesn't pursue it himself no big deal.' It's this kind of thing that made people like me think months ago that caterwauling about how Clinton's non-prosecution signaled some great harm for the rule of law and that Trump's comments about personally moving to correct it being appropriate Executive rhetoric were all fig leafs for what you *really* wanted, which was simply to harm Clinton's campaign by exaggerated outrage hoping some of that would stick with some lesser informed part of the public.

# posted by

Mista Whiskas : 8:29 AM

BD: The Constitution granted the state legislatures plenary power in this area. Art. II, sec. 1: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors... Thus, the States have every power to place conditions on the appointment and have frequently exercised that power. None have ever concluded the Constitution does not grant them this power.

Mr. W: Bart, that's a ridiculous interpretation. That's not about conditions it's about the process of choosing electors.

The Supreme Court has noted the state power here is plenary and includes laws binding electors by election results. Bush v. Gore, 531 US 98, 104 (2000); McPherson v. Blacker, 146 U.S. 1 (1892)("Under the second clause of Article II of the Constitution, the legislatures of the several states have exclusive power to direct the manner in which the electors of President and Vice President shall be appointed. Such appointment may be made by the legislatures directly, or by popular vote in districts, or by general ticket, as may be provided by the legislature.")

# posted by

Bart DePalma : 9:13 AM

Here's portion of the transcript that follows what Brett included in his 8:22 AM comment:

***

PURDY: About the emails and the foundation?

TRUMP: No, no, but it’s just not something that I feel very strongly about. I feel very strongly about health care. I feel very strongly about an immigration bill that I think even the people in this room can be happy. You know, you’ve been talking about immigration bills for 50 years and nothing’s ever happened.

***

There is more to Trump's response as well as follow up. "Negatory" in context? I assume Brett will read the full transcript and note any inconsistencies with Trump's campaign promises.

I anxiously await upcoming Maureen Dowd and Gail Collins columns as they were not present at the on-the-record meeting. Query: Was their absence a Trump condition for the meeting? The transcript suggests a tad of misogyny on Trump's part.

# posted by

Shag from Brookline : 9:18 AM

Mr. W:

It appears that Trump is reneging on his pledge to appoint a special prosecutor and I doubt this will be the last promise the Donald backs away from.

Trump's appointments offer me faint hope Trump is something of a closet conservative who played the progressive corruption game in NY and NJ in order to operate his business.

# posted by

Bart DePalma : 9:20 AM

Reference was made that "until the ERA failed."

Mark Field went all the way to the beginning. And, a more equal role for women being guaranteed by among other things the 14A was something some cited. I reckon there is a good chance more did than using it to say equal protection requires states to recognize interracial marriage.

John Harlan, an outlier on the Supreme Court on the breadth of what the Constitution required in respect to racial equality, voiced no problem with non-recognition. And, general comments about the reach of the amendment and its very text ("persons" etc.) would make the argument for gender equal sensible though voting rights would be more tricky given second section etc.

But, the usual hyperbole doesn't require that. A range of opinions locally and nationally in the 1970s (starting with Reed v. Reed; Natalie Portman movie forthcoming) before the ERA failed recognized "sex" or "gender" warranted protection here. "Somebody" -- three Supreme Court justices included -- thought a barrier to women bartenders was illegitimate in Goesaert v. Cleary. In the 1920s, the Supreme Court itself rejected a law that singled out women and children with regard to minimum wages.

The Supreme Court back in the late 19th Century recognized that though the amendment was specifically concerned with blacks, it speaks in general terms. What the ERA would have done, basically, was apply "strict scrutiny" to sex while providing a special declaration of the important of sexual equality. It not being ratified let the law develop there over the next few decades more carefully as society and the courts deemed fit. If the 2A was not ratified, many would still argue we have a RKBA. Madison noted, however, that amendments were important to relieve fears and provided added security.

I understand the pull of the ERA, but personally oppose singling out one group here. The 14A (and the 5A by implication) protects "persons" and singling out one group is not necessary and might be problematic to the degree it implies some other group warrants less protection. I also don't really like singling out the death penalty for opposition ala Justice Stevens' proposed amendment.

# posted by

Joe : 9:33 AM

I read it as saying that it's going to be up to his Attorney General. As it properly ought to be. Presidents don't appoint special prosecutors. AGs do.

# posted by

Brett : 9:36 AM

SPAM I AM! seems to be suggesting that Trump will play the conservative game as President to operate his business. This would be evidence of SPAM's repeated claims during the Cruz Canadacy that Trump was a fascist, as that is something a fascist does.

Maybe SPAM will read the NYTimes transcript to compare noes with Brett on whether The Donald is backing away from other campaign, to be published as BrettBart News. [Not Breit! - but it may be gamy.]

# posted by

Shag from Brookline : 9:39 AM

Brett reads what isn't there in the transcript. It would have been simple for Trump to say it is up to the AG.

# posted by

Shag from Brookline : 9:45 AM

Economically, fascists differ from communism in that, instead of the government claiming open ownership of the means of production, it takes effective ownership, by asserting detailed control, while leaving nominal ownership still in (very tightly constrained!) private hands.

You know, like the ACA did with health insurance companies?

So far Trump shows signs of actually backing away from detailed government control of the internal workings of business, which is the exact opposite of fascism on an economic plane.

# posted by

Brett : 9:47 AM

Shag, it would have been simple for him to say there wouldn't be any prosecution, too, but he didn't.

Legally, it IS up to the AG. So, why would he have to say it?

# posted by

Brett : 9:49 AM

"the legislatures of the several states have exclusive power to direct the manner in which the electors of President and Vice President shall be appointed. Such appointment may be made by the legislatures directly, or by popular vote in districts, or by general ticket, as may be provided by the legislature."

Bart, this quote cuts against you as it's clearly about the process of choosing electors not directing what the electors do afterward.

# posted by

Mista Whiskas : 10:02 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:06 AM

Supreme Court: "the legislatures of the several states have exclusive power to direct the manner in which the electors of President and Vice President shall be appointed. Such appointment may be made by the legislatures directly, or by popular vote in districts, or by general ticket, as may be provided by the legislature."

Mr. W: Bart, this quote cuts against you as it's clearly about the process of choosing electors not directing what the electors do afterward.

You can parse all you wish, but the laws to which the Supreme referred above directed how the electors were to vote.

# posted by

Bart DePalma : 10:08 AM

"If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation"

But you 'read into' that 'if I win I will appoint an attorney general who may or may not appoint a special prosecutor?" Wow.

# posted by

Mista Whiskas : 10:08 AM

Brett: Economically, fascists differ from communism in that, instead of the government claiming open ownership of the means of production, it takes effective ownership, by asserting detailed control, while leaving nominal ownership still in (very tightly constrained!) private hands. You know, like the ACA did with health insurance companies?

Apart from general government direction of the economy, fascism does not have a definable economy.

What you are describing is Zwangswirtschaft or "wartime socialism" which Hitler adopted once Germany started to ramp up for war. The Nazis (as well as the US and other nations) borrowed this from Germany's WWI direction of their war economy. Obamacare is indeed a textbook example of Zwangswirtschaft.

Mussolini and other fascists have instead adopted a corporatist economy where the government organizes various industries and labor groups into monopolies. FDRs NRA was a variation on the Mussolini model.

All fascists employed Bismarckian "state socialism" or what we call progressivism.

To clarify, I have noted Trump used fascist politics in his campaign (scapegoating foreigners for the problems of the American working class and offering himself as a strong leader make America great again), which bears more than a passing resemblance to Hitler's campaigns in the early 1930s. Trump has not advocated economic policies employed by past fascists like those noted above. Quite the opposite.

# posted by

Bart DePalma : 10:15 AM

Bart that case was about a Michigan law of single elector districts. In other words the process of selecting electors, not conditions on the choices of those selected.

# posted by

Mista Whiskas : 10:27 AM

Is Brett suggesting that Trump is not simple minded but that he speaks in tongues that serve as dog whistles that Brett hears and understands? "Lock her up!" was a major effort in Trump's campaign, led by Trump and cheerleaders Christie and Flynn.

And SPAM I AM! is backtracking on his many claims during the Cruz Canadacy that Trump was a fascist with his new explanations of what he meant. SPAM continues in his efforts to get off Trump's enemies list. Alas, SPAM's efforts are no help.

As to claims of potential conflicts by President Trump regarding his business empire, Trump comes up with a Calvin Coolidge variation:

"The business of America is the President's business."

# posted by

Shag from Brookline : 10:34 AM

"Apart from general government direction of the economy,"

By the 20's and 30's every industrial economy was engaging in what Bart would call 'government direction of the economy.' It seems to be something that comes with industrialization. What differentiates is the end motive or goal. Fascists directed the economy to obviate class divisions and unite the 'volk' towards nationalist goals.

# posted by

Mista Whiskas : 10:47 AM

Mr. W: Bart that case was about a Michigan law of single elector districts. In other words the process of selecting electors, not conditions on the choices of those selected.

The Supreme Court has never ruled on a case of faithless electors because they have never affected an election before. I cited the supra cases for their notation of the general propositions that Article II grants the states plenary power in this area and state laws committing electors to the winning candidate in that state were examples of the exercise of that power.

# posted by

Bart DePalma : 10:49 AM

Shag it was rhetorically a big part, but I think what we'll find that it was never about principles of rule of law but rather propagandist goals.

# posted by

Mista Whiskas : 10:50 AM

BD: "Apart from general government direction of the economy,"

Mr. W: By the 20's and 30's every industrial economy was engaging in what Bart would call 'government direction of the economy.' It seems to be something that comes with industrialization. What differentiates is the end motive or goal. Fascists directed the economy to obviate class divisions and unite the 'volk' towards nationalist goals.

During the "return to normalcy" in the 1920s, over half a century into the industrial revolution, the US government was not directing its economy to any meaningful extent, while their economic competitors were. Naturally, US productivity and GDP growth dwarfed its competition.

Today, we can only dream of such productivity and GDP growth.

# posted by

Bart DePalma : 11:00 AM

"Shag it was rhetorically a big part, but I think what we'll find that it was never about principles of rule of law but rather propagandist goals."

You mean it was a campaign???

I am content if Hillary is not given special protection from the law. I don't need the President personally directing an anti-Clinton jihad.

But I think it will all be moot after Obama's Jan. 19th pardons.

# posted by

Brett : 11:11 AM

The SNL skit where "President Trump" tells Pence to forget about various things he said might have been one of the scenes Trump said he saw. Maybe, besides thinking it not funny and insulting, he found it informative. Kidding. We knew beforehand not to take too seriously certain things he said. That is something that often should be the rule for politicians, but more so some of them. OTOH, his supporters (like supporters tend to) sometimes have somewhat different rules depending on the person.

Legally, it IS up to the AG. So, why would he have to say it?

Legally, actually, it's ultimately up to the chief executive officer. Norms give discretion to the AG, but there is no "law" that mandates that. So, e.g., firing those attorneys by Bush was strongly criticized based on norms. But, it wasn't like an impeachable offense or something based on what was "legally" required.

If anything, the people who support Trump favor a more unitary executive. And, concern that Trump will not only do his job badly but given his personality and the very things many people voted him for disregard norms for unilateral power was a basic concern during the election campaign. This led some who otherwise might appreciate some things he did, including the judges he would nominate, to oppose him.

"The executive power shall be vested in a President of the United States of America"

"he shall take care that the laws be faithfully executed"

# posted by

Joe : 11:14 AM

It's been noted elsewhere that both Washington and Jefferson, after their times as President, went back to their farms. Back to, as in they hadn't sold the family business.

So I don't think interpreting normal business profits as "emoluments" is quite right.

I think everyone agrees that merely running a plantation ca. 1800 would not result in any "emoluments" from a foreign government. Trump's overseas business interests do raise that risk. In at least one case so far, he asked a foreign government to intervene on behalf of his business (the wind farm near his Scottish golf course). That's soliciting an emolument; if he receives it -- I doubt he will -- then he violated the clause.

There's also the issue of his properties in Argentina, but the statements there are disputed.

These opportunities for conflicts of interest (and violation of the emoluments clause) demonstrate the need for a blind trust.

# posted by

Mark Field : 11:20 AM

Legally, actually, it's ultimately up to the chief executive officer. Norms give discretion to the AG, but there is no "law" that mandates that.

28 CFR 600 gives the AG the authority to appoint special counsel. As you rightly note, the President has the legal/constitutional authority to command the AG to do so.

Funny how we haven't heard much about the unitary executive theory since Bush left office. I expect we'll see more of it, but maybe not in this case.

# posted by

Mark Field : 11:23 AM

"Personality" alone works but no need to rest on that.

His words and actions also suggest someone who more than the average person would act in a unitary way & disregard various norms (and at least go to the edge if not beyond of the law in the process) in the process. The fact -- unlike being a certain type of businessman -- he is inexperienced and not knowledgeable about the various aspects of the office in question only makes this worse.

This is not untrue because checks/balances in place restrain his abilities to do this. There remains enough chance for harm. OTOH, consider an experienced leader, who has a career in public life that respects its basic norms with the opposite party being in control of one or both houses of Congress etc.

# posted by

Joe : 11:24 AM

Constitutionally it may be up to the President. Unitary executive, and all that.

Per current law? It's the Attorney General.

# posted by

Brett : 11:25 AM

This comment has been removed by the author.

# posted by

Joe : 11:26 AM

"in the 1920s, over half a century into the industrial revolution, the US government was not directing its economy to any meaningful extenT"

That's absurd. All the TR and WW progressive features were up at the time (and with a big tariff and immigration restriction thrown in).

# posted by

Mista Whiskas : 11:34 AM

# posted by

byomtov : 11:35 AM

"There are many honorable Republicans." I suppose that depends on how we understand the words "many" and "honorable". The last 8 years proved that there isn't even one in the Senate and no more than a handful in the House.

# posted by

gp : 11:35 AM

As I wrote my comment Brett selectively responded to Mark Field.

I appreciate Mark's clarification on the specific issue there and "per current law" as he says the POTUS can instruct his AG to do so & ala Nixon fire him or her if they don't follow. Per current law.

"Up to" is the usual "take this with a grain of salt."

The cited regulation is pursuant to 5 U.S. Code § 301.

"The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public."

I assume new presidents can put forth new regulations, following the procedures in place to do that, that change the one in place here. The regulation here is an act of discretion by the executive.

# posted by

Joe : 11:35 AM

"grants the states plenary power in this area and state laws committing electors to the winning candidate in that state were examples of the exercise of that power."

The grant of plenary power is in the area that that case was about-the process used to select electors-and not on conditions or directions regarding the electors choices. Such an idea is contrary to the very idea of electors (if the legislature can direct their choice then what point the elector?).

# posted by

Mista Whiskas : 11:48 AM

"You mean it was a campaign???"

So you're admitting he's going back on what he said but arguing we never should have taken what he said seriously because it was a campaign? Again, wow.

# posted by

Mista Whiskas : 11:50 AM

BD: During the "return to normalcy" in the 1920s, over half a century into the industrial revolution, the US government was not directing its economy to any meaningful extent, while their economic competitors were.

Mr. W: That's absurd. All the TR and WW progressive features were up at the time (and with a big tariff and immigration restriction thrown in).

The Return to Normalcy was all about withdrawing from the TR and especially Wilsonian progressivism. Harding/Coolidge dramatically lowered the new income tax rates and government spending, reversed nearly all of the WWI directions of the economy, and dramatically slowed "trust busting" and regulation.

Curbing immigration is not directing the economy.

Smoot Hawley was enacted in 1930.

The only remaining active progressive policymaking body during the Return to Normalcy was the Federal Reserve. They did not directly run the economy, so I did not include them in my comment. However, it is worth noting that the Feds inflationary policies were key in inflating the markets in the late 1920s and its anti-inflationary policies caused the 1929 correction and contributed to the 1930-32 recession.

# posted by

Bart DePalma : 11:55 AM

No, I comprehend the notion of "hyperbole". So do most Trump supporters.

The left has been determined to 'understand' everything Trump says in the most unnuanced way possible. The right isn't quite so committed to being stupid in relation to him.

# posted by

Brett : 11:58 AM

BD: "grants the states plenary power in this area and state laws committing electors to the winning candidate in that state were examples of the exercise of that power."

Mr. W: The grant of plenary power is in the area that that case was about-the process used to select electors-and not on conditions or directions regarding the electors choices.

Sure it was. Electors were meant to be and were always treated as agents of the states. Principles direct the activities of their agents.

Such an idea is contrary to the very idea of electors (if the legislature can direct their choice then what point the elector?).

The constitutional convention's original compromise idea was indirect election of the president by granting the elected state legislatures the power to appoint electors to choose a president. However, after the development of political parties, the state legislatures very quickly decided they wanted effective direct election of the president and enacted laws directing the electors to vote for the winner of the popular vote in their states. Because Article II granted the states plenary power in this area, the states overrode the original intent of the constitutional convention.

# posted by

Bart DePalma : 12:07 PM

"But people have complained all through our history. About segments of the population being denied the vote, about the undemocratic nature of the Senate, etc., etc., and we've long had people point out the undemocratic nature of the EC (in fact in my high school civics class it was taught as 'we don't really have direct election of the President because the Founders were wary of democracy'). It's not been too much fuss because usually the popular vote winner also wins the EC.

"Throughout our history we've recognized aspects of our system as counter to true majority rule and seen that as undercutting our democratic rhetoric, that's why we've enacted so many reforms (like the 17th and 'faithless elector' laws). We haven't changed them all because that kind of change is very hard in our system, but that doesn't mean people in principle don't notice the difference between democratic ideal and our practice."

This is very much true.

But there's a difference between saying "in general, it is usually better to go closer to majority rule" (true) and "majority rule is fundamental to the legitimacy of any democratic result" (false).

Indeed, even the first one isn't always true. Unelected Supreme Court decisions, for one thing sometimes makes our system more democratic. Also, very few people are arguing that we should have national referenda or an initiative system, even though that gets us closer to majority rule. And plenty of people agree that at least certain felons shouldn't vote, that children shouldn't vote, etc.

And the reason for all of this is because majoritarianism ISN'T fundamental to democracy. It's often the correct direction to go in, but there are situations where it isn't, and even where it is, we accept as legitimate plenty of things that are not majoritarian.

And some of those things, unlike the electoral college, are ridiculously anti-majoritarian, like the United States Senate and some Supreme Court decisions. Yet they are still democratically legitimate.

As is the election of Donald J. Trump.

# posted by

Dilan : 12:49 PM

"These opportunities for conflicts of interest (and violation of the emoluments clause) demonstrate the need for a blind trust."

I don't think a blind trust is possible. Trump's business is based so heavily on the Trump name. Basically, his whole business empire would have to be dismantled and the goodwill associated with his name would have to be forfeited.

I think this is part of the deal the American public got when they elected him President. Emoluments Clause cases are non-justiciable anyway- if Congress finds a violation, they can impeach him.

But it was up to Hillary to argue this stuff during the campaign and convince the voters not to elect him.

# posted by

Dilan : 12:55 PM

A trial is never going to be totally fair because of the imbalance often present on both sides, but there are various ways to make it more fair. "Due process" etc. matters there even if (quite correctly) people will say things like "the system is rigged against me." And, for the emoluments concerns there are various shades of gray. There are specific things Trump can do to at least temper the problem. And, it wouldn't be as hard for some other person in a related position. But, to be clear, some of his businesses are not as based on his name alone.

As to it being "non-justiciable," litigation isn't the only means to protect constitutional norms and requirements. Congress, e.g., can pass regulations (need to release tax returns seems appropriate there) or the President can (in part to cite lack of need for that) follow certain rules there. If the President is found to violate that, there might be in specific cases grounds for standing in court. But, not my main concern.

The concerns about conflict of interest were cited during the campaign. Something specifically found in the Constitution especially is not merely up to the discretion and good attempts of losing candidates. It cannot in effect be waived. And, impeachment is not the only possible thing with teeth available. If nothing else, the clause sets forth a principle the violation of which would put the public, press etc. on alert.

# posted by

Joe : 1:09 PM

The left has been determined to 'understand' everything Trump says in the most unnuanced way possible.

If nothing else, Trump's election should give glass producers good business.

# posted by

Joe : 1:14 PM

"The Return to Normalcy was all about withdrawing from the TR and especially Wilsonian progressivism"

Not so much.
https://object.cato.org/sites/cato.org/files/serials/files/cato-journal/1996/11/cj16n2-2.pdf

"Smoot Hawley was enacted in 1930."

I was talking about the Ford Tariff of 1922.

# posted by

Mista Whiskas : 1:17 PM

"I comprehend the notion of "hyperbole"."

That's a massive cop out. You can now defend any walk back from a direct and repeatedly made promise by a candidate as just hyperbole.

# posted by

Mista Whiskas : 1:19 PM

"Electors were meant to be and were always treated as agents of the states"

If the scope of the electors choice was limited to whatever the legislature directed they'd be couriers, not electors.

# posted by

Mista Whiskas : 1:21 PM

"That's a massive cop out. You can now defend any walk back from a direct and repeatedly made promise by a candidate as just hyperbole."

You can think that if you want, but it remains the truth. We will not be upset if a few hundred miles of border with Mexico end up with a fence or electronic barrier instead of a "wall", for instance. We don't and never expected every last illegal immigrant to be deported, including productive, otherwise law abiding adults who were brought here long, long ago as minors. If a grand jury decides not to indict Hillary, or a jury refuses to convict, we won't count it against Trump.

You're being stupidly literal about everything he says, in a way you never would be about a candidate you favored. We're not, nor do we think we are obligated to be. We're being reasonable.

"If the scope of the electors choice was limited to whatever the legislature directed they'd be couriers, not electors."

As I said, they were agents who were expected to be able to exercise discretion in the event of new information. You arrive at the College, and find out that the nominal President elect has just been discovered to be a murderer, for instance.

But as agents, they weren't supposed to substitute their judgment for the principle. And that is what Sandy wants.

# posted by

Brett : 1:29 PM

Dilan, rule by judiciary has long been denounced as contrary to democratic principles. It's why even Warren Court activists always paid the homage vice pays to virtue by including language about how it's properly rare to overrule state and federal law even as they did so. And the EC has long been taught and criticized as an elitist anachronism with a strained relation with democratic principle. You seem to argue 'well, these have long been components of our system, but surely we've a true democratic system, therefore they can't be fundamental." But it's long and widely recognized that our system has undemocratic features built in. To some these are proof our system is t and hasn't been a democratic ideal, to others they're justified by sacrificing democratic ideal to other values (geographic representation concerns, elite check, etc). But again, most people recognize them as *divergences* from democratic ideals, pragmatic compromises or elitist anachronisms.

# posted by

Mista Whiskas : 1:30 PM

Brett, saying I will build a wall but then building some other containment structure is one thing. Saying, repeatedly, 'I will instruct my AG to appoint a special prosecutor to investigate X' and then saying 'I'm not going to instruct my AG about that at all' is something else. You've bought in to a cult of personality if you can't see that.

# posted by

Mista Whiskas : 1:35 PM

I don't think a blind trust is possible.

It is, but it means he'd have to liquidate his businesses and convert them to cash/securities. Those could then go into a blind trust.

One amusing aspect of this is that several publications have claimed that Trump would have made more money over the years if he had just put his inheritance into an index fund. Now he can.

Emoluments Clause cases are non-justiciable anyway- if Congress finds a violation, they can impeach him.

I have some quibbles with this, but I'm inclined to agree generally.

# posted by

Mark Field : 1:35 PM

Also, for our agency experts: it's principal, not principle.

# posted by

Mista Whiskas : 1:37 PM

Mr. Wiskas, he's saying it won't be a priority. Not that it won't happen.

I agree, it shouldn't be a priority. Lots of things get done in Presidential administrations that aren't priorities.

I expect the matter to be largely moot, because Obama is almost certainly going to pardon her.

# posted by

Brett : 1:52 PM

BD: "The Return to Normalcy was all about withdrawing from the TR and especially Wilsonian progressivism"

Mr. W: Not so much. https://object.cato.org/sites/cato.org/files/serials/files/cato-journal/1996/11/cj16n2-2.pdf

Your libertarian author Holcombe does not contest anything I posted. Rather, Holcombe uses a number of questionable comparisons to whine that Harding and Coolidge did not withdraw far enough from the TR and Wilsonian progressivism.

For example, the combination of an income tax and booming GDP growth always creates more absolute government spending. The same libertarian criticisms of increasing absolute government spending were leveled at Reagan. The better measure of government spending is as a percentage of GDP and Holcombe's figure 2 shows the massive reduction in government spending as a percentage of GDP during Harding/Coolidge. Far more than Reagan/Clinton accomplished.

I agree with Holcombe the progressive movement never went away. Hoover was the leader of the progressive wing of the GOP, ended the Return to Normalcy with a full menu of destructive progressive policy and gave us the 1930-1932 recession.

# posted by

Bart DePalma : 2:15 PM

Brett,
When Comey declined to prosecute you declared here that it proved there was no rule of law in the U.S. and we might as well be a banana republic. Low priority indeed.

# posted by

Mista Whiskas : 2:24 PM

"I agree with Holcombe the progressive movement never went away"

Yes, as I said initially Mr. W: All the TR and WW progressive features were up at the time (and with a big tariff and immigration restriction thrown in).

The ICC. The FTC. The FDA. The Fed. All were up and running with expanding budgets and employees during the 20s.

# posted by

Mista Whiskas : 2:35 PM

Btw-unless you don't want to call the pre-WWI era 'progressive' (which might be an idiosyncrasy we should expect), it's unfair to compare the 20's to the actual World War years (because of course the government is big and intrusive when conducting a World War). The Return to Normalcy was a walk back from total war, but it was a walk back to the pre-War progressive era of TR and WW. Thus my comment that what you call 'progressive' is something found in every industrial economy at the time.

# posted by

Mista Whiskas : 2:40 PM

Mr. W:

You argue without a clue, simply for the sake of arguing.

The Progressive Era went through the first couple decades of the 20th century. The Return to Normalcy (Harding/Coolidge) lasted between 1921 to 1928.

During the PE, Congress created the absolute bureaucracy and provided it with the powers to regulate the prices for common carriers, to prosecute anti-trust actions, and during WWI, to direct all the strategic industries of our economy. The latter had never been done before and progressives wanted to continue this direction after WWI ended.

During the RTN, Congress shrank the absolute bureaucracy and ceased all WWI directions of the economy. The bureaucracy ceased any significant anti-trust actions and all that was left was minimal regulation of common carrier prices.

During the PE, Congress created the income tax and dramatically increased spending as a percentage of the GDP.

During the RTN, Congress dramatically lowered income tax rates and roughly halved spending as a percentage of GDP.

During the PE, economic growth was sharply lower than the industrial revolution and ended with the severe "1920 depression," the second worst recession in American history after the populists trashed the financial system with a bi-metallic currency in the 1890s during the Silver Panic.

During the RTN, GDP growth returned to the levels of the industrial revolution and productivity soared to the highest in American history.

Cause meet effect.

Your contention industrialization caused and indeed demanded government directed economies is demonstrably false. While it industrialized between the Civil War and the 1920s, the United States became the world's wealthiest, most productive and highest paying economy in the world with little government intervention apart from the PE, which trashed the economy for a period of time.

# posted by

Bart DePalma : 3:50 PM

"As to it being "non-justiciable," litigation isn't the only means to protect constitutional norms and requirements. Congress, e.g., can pass regulations (need to release tax returns seems appropriate there) or the President can (in part to cite lack of need for that) follow certain rules there. If the President is found to violate that, there might be in specific cases grounds for standing in court."

No way. Congress should not have the power to sue the President over a political dispute. If such requirements are passed and the President disobeys them, Congress can impeach. I don't want any more Bush v. Gores.

# posted by

Dilan : 4:22 PM

Bart your own words betray the weakness of your argument. You say "During the PE, Congress created the absolute bureaucracy and provided it with the powers to regulate the prices for common carriers, to prosecute anti-trust actions, and during WWI, to direct all the strategic industries of our economy." the last one, direction during total Workd War, is of course unfair to use as a bench mark, and then you concede, as you must, that common carrier and anti-trust actions continued throughout the 20's, you just to try to dismiss them as not as stringently used. As I said, the Return to Normalcy was an attempt to walk back the War direction without backtracking past the rest of the PE.

The U.S. *began* serious industrialization after the Civil War, but by the time we were seriously on that road, well what do you know, things like the ICC start to appear! As I said, what you call progressive direction of the economy just, time and again, seems to follow industrialization. As proof of this, as we've shown in the past, you can't name a single industrialized nation today without the characteristics you lament.

# posted by

Mista Whiskas : 5:36 PM

No way. Congress should not have the power to sue the President over a political dispute. If such requirements are passed and the President disobeys them, Congress can impeach. I don't want any more Bush v. Gores.

The quoted portion did not only reference "suing" but the President in various ways is liable to be sued in court if some constitutional provision is violated. Why this suddenly is scary to you and another Bush v. Gore is unclear to me.

Impeachment is a nuclear option & is realistically (and sensibly) not going to be used for each violation of some regulation or constitutional provision. There are a myriad of cases with the President or an underlining (also open to impeachment) being sued in the courts to uphold constitutional provisions. Impeachment and public opinion are not the only checks there.

Let's say the President is required by law to release certain financial documents as a necessary and proper enforcement of that clause. A person with a good claim that a violation caused financial damage comes and sues, granted standing pursuant to the law. "Congress" itself need not sue. And, the relief in such and such a case can solely be the President's business cannot accept some 'emolument' or whatever.

# posted by

Joe : 5:39 PM

"During the PE, Congress created the income tax...

During the RTN, Congress dramatically lowered income tax rates "

Haha. The top rate in 1916 was 15%. During your vaunted RTN the top rate ranged from 58% to 46% to it's lowest at 25%. That's right, at it's *lowest* the RTN tax rate was a 66% increase from what it was during your much lamented progressive era. The only time you get higher was during our World War involvement, when *of course* taxes went up. But absent the war years, PE taxation of the rich never saw levels like what were found during the RTN.

# posted by

Mista Whiskas : 5:46 PM

"Let's say the President is required by law to release certain financial documents as a necessary and proper enforcement of that clause. A person with a good claim that a violation caused financial damage comes and sues, granted standing pursuant to the law. "Congress" itself need not sue. And, the relief in such and such a case can solely be the President's business cannot accept some 'emolument' or whatever."

No way, because the courts can't resolve that dispute between Congress and the President.

I don't believe in Congress making end runs around the political question doctrine. If the President accepts an emolument, impeach him. if you think that's a "nuclear option", fine, but we can't have unelected judges taking sides in such a dispute and ordering the President around. Put another way, if the courts issued such an order, and a President Trump simply refused to obey it, I would support Trump. Congress can impeach if they disagree with him.

# posted by

Dilan : 6:50 PM

Mr. W:

Now you are talking out of your ass.

You intentionally omitted that PE left the top income tax rate at 73% (two years after the war ended) and the RTN cut that rate by 2/3.

http://taxfoundation.org/sites/default/files/docs/fed_individual_rate_history_nominal.pdf

The tax rate for the average household was cut to next to nothing.

http://qz.com/74271/income-tax-rates-since-1913/

# posted by

Bart DePalma : 6:59 PM