Month: November 2020

Here’s where the factions stand on the outcome of the election:

1. CDs: Biden will at least try to pull a divided nation together. We’re good.
2. CLs: Two big government parties, in their different ways, checking each other. How’s that for irony! The Founding Fathers were geniuses!
3. PBPs: No tax increases, fewer tariffs, and an end to arbitrary interference with business. It’s not a perfect outcome, but it’s certainly OK. What we really hate is uncertainty. Let’s move on.
4. Reactionaries: FRAUD! THE ELECTION WAS RIGGED! THE GOVERNMENT IS ILLEGITIMATE! FIGHT ON TO THE END!

Of course, the only voice you actually hear right now is the last one, which shows you how the Reactionary faction has come to dominate the party. That is Trump’s greatest “accomplishment.”

There are three legal issues to be considered by the Supreme Court during oral argument today:

1. Have the plaintiffs alleged enough of a genuine injury tied to the now toothless individual mandate to establish standing to sue?
2. Is what remains of the individual mandate constitutional, in light of the previous (ridiculous) decision finding it valid only as a tax?
3. If the mandate is unconstitutional, would the intent of Congress be to sever it from the rest of the legislation, or should the entirety of ACA fall?

The simplest way of dealing with the case is to find that the plaintiffs lack standing, as the mandate is now meaningless; doing so would be an exercise of the judicial restraint so allegedly beloved by conservatives. If that is done, it becomes unnecessary to address the other issues. If the Court finds that the plaintiffs do, in fact, have standing, however, it is a foregone conclusion that the mandate will fall. The issue that will get the most attention, consequently, will be #3.

There is no doubt that the original framers of ACA thought that the individual mandate was one of the cornerstones of the legislation. There is also no doubt that the Congress that deleted the penalty for violating the mandate felt otherwise. The lower court in this case based its decision on the original legislative intent and blew off everything that happened after that. Even most right-wing legal commentators believe that was an obvious error.

As I noted in my last post, the GOP members of the Judiciary Committee have given the Court a permission slip to uphold ACA. I believe a clear majority, including Barrett, will do so. The legally principled and politically sensible way to do that would be to find a lack of standing and avoid the severability issue. Whether that will happen, I do not know; the unabashed GOP partisans on the Court are probably spoiling for a fight on the merits.

There was one big winner last week who didn’t appear on the ballot: John Roberts. Court packing is dead, the Biden Judicial Commission won’t accomplish anything without the leverage created by the packing option, and the Court will apparently be spared the trouble and notoriety involved in deciding a case that could throw the election to Trump. The Court’s legitimacy consequently survives, and the GOP appointees are free to do as they like. How will they respond?

Here are my predictions:

1. ABORTION: There is no possibility of a national ban on abortion for the next four years. That may embolden the majority to dispense with Roe altogether, although that remains to be seen.
2. ACA: Lindsey Graham and other GOP members of the Judiciary Committee have given them a permission slip not to kill ACA. I will discuss this further in my next post.
3. EXECUTIVE BRANCH ACCOUNTABILITY: Look for Thomas and Alito to make a U-turn on this issue now that their man is out of office.
4. CLAMPING DOWN ON ADMINISTRATIVE AGENCIES: We won’t see this for at least a year or two, but it will present a major problem for Biden down the road.

Hillary Clinton must have had a sense of deja vu. In 2016, the blue wall collapsed, albeit by very small margins. In 2020, under completely different circumstances, the wall survived–barely. With the exception of Georgia, Arizona, and the turnout, in spite of the pandemic, the recession, and the four years of Trump outrages, we were running basically the same election.

Would the result have been more impressive if Biden had run a more energetic and ideological campaign? The evidence available to us says no. Biden either ran even with, or outperformed, the Democratic candidates for the Senate in the swing states. The only exception was Montana, and nobody is going to suggest that running a more progressive campaign would have helped him there.

Choosing Biden blunted, to the maximum extent possible, the GOP’s efforts to run a campaign based on white identity interests and hatred of socialism. As it was, they still ran the same campaign, but directed it against AOC and the rioters, not Biden. The degree of success that they had should be, but probably won’t be, a stark message to the left.

I had a parody of Fleetwood Mac’s “Landslide” ready for posting on November 4, but I never had the chance to use it. In the end, the election looked a lot like 2016, with Trump’s record making up the difference. Why wasn’t the margin larger?

For these reasons:

1. THE ECONOMY ISN’T THAT BAD: The unemployment rate is now below 7 percent, and if you have a 401(k), it is doing very nicely, thank you. Millions of swing voters were undoubtedly influenced by this and didn’t want to risk making changes. I’m guessing these were the shy Trump voters whose views weren’t represented correctly in the polls.
2. TRUMP’S PARTISANS DIDN’T BLAME HIM FOR THE PANDEMIC: In truth, he can be blamed for a lot, but not everything. The states have more control over the issue than he does, and the Europeans are struggling, too. The pandemic probably decided the election on the margins, but it didn’t lead to an avalanche.
3. CULTURE AND THE ELECTORAL COLLEGE: As usual, the culture war prevailed over economic considerations. That might come as a surprise, given that the right acknowledges that it has lost the war in the eyes of the American public, but right-wing views still prevail in rural states with a disproportionate say in the outcome of an election. It is thus concurrently true that the red side has the unpopular side in the nation as a whole, and that whipping up cultural issues can be a winner for Republicans in red and purple states.

Could the Democrats have won a more convincing victory with a more ideological approach to the campaign? I will address that in my next post.

Life in the time of Trump.

The man on golf cart lost.

Authoritarians must go

No matter what the cost.

He’ll take the battle to the courts

To keep the wolves at bay.

But no relief is coming there.

I just don’t see a way.

He won’t be dragged out of the White House, as some people imagine. He’ll leave for Mar-a-Lago at some point before Christmas and just never return.

1. Harris looked almost giddy. Good! The best lesson I learned as a young lawyer was to enjoy my victories, because I had to earn them.
2. For the last four years, Trump has made me embarrassed to be an American. That’s over.

I’ll stand on your grave

And tramp the dirt down.

—-E. Costello

I’m sorry–I’ve been living in a world filled with boastful Trump flags for the last few months. I’m entitled to gloat for at least a day or two.

(Donald Trump is wandering aimlessly around the White House when he is visited by the ghost of his father. He is elated. Help is on the way! It’s the deus ex machina!)

D: Dad! I’m so glad to see you! I need help! Things are bad! BAD!

F: I know, son.

D: But you can save the day, just like you did when you bought those casino chips, right?

F: America is not a casino, son. I’m here to tell you how disappointed I am in you. I brought you up to be a winner. You had every possible advantage. And now you’re a loser, in front of all of the world. You’re an embarrassment to the family. I can’t tell you how humiliated I am.

D: But they were all against me! Big Tech! The Big Media! The corrupt Democrats! And then there was the virus! There was nothing I could do!

F: The virus was an opportunity–you just didn’t see it. All you had to do was wear a mask and pretend that you cared about people. You couldn’t bring yourself even to put on an act. Now look where you are!

D: But you taught me that strength was the only thing that mattered! What else could I do?

F: There’s a difference between strength and stupidity. It’s the difference between winning and losing. Now, you’re a loser. You have to live with that for the rest of your life. And I have to live with it, too. I can’t stand it!

D: But, you’re dead! What do you really care?

F: I disown you. You’re as weak as your brothers. You let me down. Go back to one of your overpriced clubs and never ask for anything from me again!

(Fred disappears. Donald dissolves in a mass of self-pity.)

Donald Trump significantly overperformed relative to the conclusions of numerous state polls in 2016. The polling entities made adjustments to address their errors. The adjustments appeared to work in 2018. This year, however, Trump and the GOP have consistently performed about 4 points better than the state and national polls suggested. What is going on here?

We’re all familiar with the aggressive Trump voter–the one who flies an enormous, obnoxious flag in front of his house and on his pickup truck. That kind of voter appears to be the norm. It is possible, however, that there are other people voting for Trump out of perceived economic interest who are embarrassed to admit it and who consequently lie to pollsters. In other words, in spite of appearances and my previous opinion, there still is such a thing as a shy Trump voter.

I can’t explain it any other way.

Notwithstanding the vagaries of the Electoral College, a majority of Americans never bought into Donald Trump, as evidenced by consistent polling over the years and Clinton’s margin of 3 million in the overall popular vote in 2016. Biden is going to win the popular vote by over 4 million this time around. The additional million votes in the margin is undoubtedly attributable to disgust with Trump’s performance in office, including, but not limited to, his failures with the pandemic.

Given his awful record, why isn’t the margin greater? Why didn’t we have a blue tsunami? Why is Mitch McConnell going to be a sort of co-president for the next two years? The answer can be found in the GOP commercials, virtually all of which attacked looters, rioters, and political correctness, not Joe Biden. America may be tired of Trump, but it isn’t ready to embrace wokeness yet. That will only come after tens of millions of Americans of my age or greater have left the scene.

So what will the woke do in the meantime? Probably tell us that the election proves that they were right–America was always an evil, racist empire, and it still is.

Future historians will probably be appalled by Trump’s rambling and nonsensical attack on polls, the MSM, and nonexistent corruption in the election last night. With good reason, of course. But we’re used to that. To me, the more noteworthy aspect of the monologue was the whiny, self-pitying tone. Trump was basically telling us that, notwithstanding the swagger that he has made his brand, he was no match for the dark powers of the media, Big Tech, and the Democratic Party in the end.

It is as I forecast four years ago: what’s the point of a man on horseback who can’t get anything done? If you’re going to be Mussolini, get it right! Man up, dude!

I would describe the elements of Trumpism as follows:

1. Swagger, to the point of toxic masculinity;
2. Constant divisive and inflammatory reactionary public statements on race and culture;
3. Orthodox GOP positions on taxing, spending, and regulation;
4. Open contempt for liberal democracy and its norms, both at home and abroad; and
5. A foreign policy based completely on the perceived short term material needs of the United States, without regard to national values, existing alliances, or international institutions.

How much of this will survive his departure from the scene, whether now or later? Swagger has been an integral part of the GOP brand since Reagan; no GOP candidate for the presidency can survive without it. The trick is to mute it slightly in order to avoid offending so many women. The taxing, spending, and regulation thread will be followed by any future nominee, barring a surprising move to economic populism on the part of the party. #5 will almost certainly disappear, as it is unique to Trump.

The real questions are #2 and #4. My guess is that the results of the 2020 election, even if Trump loses, will be used as evidence that behaving autocratically and constantly throwing red meat to the base is a winning strategy even if it offends a majority of Americans and threatens our institutions. That is the tragedy of November 3, regardless of the ultimate outcome of the presidential race.

Donald Trump rarely passed up an opportunity to disparage John McCain. By many accounts, this has cost him thousands of votes among independents in Arizona.

Wouldn’t it be delicious if Trump’s mouth ultimately lost him the election? One has to think that McCain would have appreciated the irony.