edelsont | Entries tagged with united states constitution

Well, this is a fine mess. Not as bad as when Donald Trump was actually President of the United States, but plenty bad. I refer to the fact that Trump continues to insist that he actually won the 2020 presidential election.

And so do a large proportion of the members of his party. And quite a lot of the Republican members of the House of Representatives, too. (Thankfully, this seems, at least at the moment, to be somewhat less true with regard to Republican members of the Senate.)

I don't know about you, but this situation gives me the heebie-jeebies. And I know I'm not the only one who feels that way. My primary news source is The New York Times, and many of the people who write opinion pieces for them have, since Trump left office, seemed concerned that our democracy is under threat.

Reporters, on the other hand, are not supposed to say things like that. But they can interview people and report that many of those folk feel that way, too. And they have done so.

Okay, many people, both pundits and regular folks, feel that way (that our democracy is under threat). But is it that way? For example, is there a substantial likelihood that, after the 2024 presidential election, some state legislatures will certify slates of electors backing a presidential candidate different from the one for which their own citizens voted?

And if so, is there a significant likelihood that we will, as a result, end up with a different president—different from the one who would have been inaugurated, if customary constitutional procedures had been followed?

In a word, no. Some state legislatures might try it, but I just don't think that it's significantly likely that it would change the outcome of the election. One way or another, I believe, the attempt would be stopped.

That's a pretty bold claim. What evidence do I offer for it?

Not much. Just an overall sense that there are too many Americans who wouldn't stand for it. I am referring both to ordinary citizens, and to people in positions of power—including, but not limited to, judges. Obviously, there wouldn't be unanimous agreement that this is just not right; I expect, though, that there would be close enough to a consensus to that effect. Close enough so that, as I said earlier: one way or another, the attempt would be stopped.

As I said at the beginning, a lot of people are worried that something like this might happen. Do I think that most of those people, if they read what I have just written, would suddenly stop worrying?

No, I really don't think so. Heck, it isn't even enough to make me stop worrying.

At this point, some readers might be exasperated with me, and I couldn't really blame them. They would want to say something like this: "Make up your mind, man! Is this dreadful possibility actually likely enough to be worth worrying about, or isn't it?"

In fact, some might want me to do more than just "make up my mind." All I've really done, above, in attempting to estimate the likelihood of such a political disaster, is to state my hunches—whether I "feel" that it is "significantly likely." Before I expect people to take the time to read what I have to say on the subject, I should do more research, and be prepared to offer real evidence, one way or the other.

This would be an entirely valid criticisim … if what I were purporting to do here were: to provide a rational estimate of how likely it is that our democracy will break down. Or, to be more precise, how likely that is, in the absence of more strenuous efforts to prevent it. And unquestionably, such a rational estimate would be a good thing to have.

But that's not what I am doing here, nor even attempting. (And I apologize for the fact that I haven't found a way to make that clear sooner.) So what am I trying to do, then?

I'm glad you asked. I am trying to give you something that will be helpful if you find yourself in a certain state of mind, vis-a-vis the possibiliity of a breakdown of American democracy. (Actually, it might be helpful in relation to other future possibilities too, if they share certain characteristics: it's a possibility about which we judge that it would be truly awful if it happened, but we lack real confidence in our ability to predict how likely it is.) Here's a succinct description of the state of mind I am talking about: you are not only uncertain, but also ambivalent.

To expand on that: you are torn, and/or vacillating. Depending on your mood, or other global aspects of your frame of mind, your thoughts on the subject change: maybe from day to day, maybe even from minute to minute. And they don't just change in matters of nuance; whatever you find yourself thinking (and feeling) now, it flatly contradicts what you thought and felt a short time ago.

In short, you are trying hard to make up your mind, but you just can't. You can't get to an answer that you feel comfortable with, sufficiently so to be able to let go of the question, and go forward based on that answer as your final one.

Here's an example of how one might describe this dilemma, so as to make it more specific.

On the one hand, you say: if I think about this in a rational way, it seems like a bad thing that could possibly happen … but not likely enough that I should continue paying attention to it. There are lots of bad things that could possibly happen, and in my best judgment, this one is not the most important: not the one which most calls for my efforts to prevent or alleviate it.

On the other hand, having said that, you find that you can't put thoughts of this particular threat behind you. You've told yourself that it's not rational to keep worrying about it, but you do so anyway. And this worry is interfering with your ability to work on the problems, actual or potential, which you have judged to be more important.

If you're the sort of person that highly values rationality, you might judge yourself harshly for this, saying that the continued worry is a matter of emotion, not reason, and therefore, you should be better able to control your thoughts. But in practice, so what? If you can't control them, you can't control them. And if they are really interfering with your work on other matters—those which your "rational" mind considers more important—then that's a problem in its own right, one which you are going to have to confront whether you want to or not.

So what do you do?

The only answer I have to offer right now is: stay tuned. I have done what I can to state the (potential) problem clearly; now I must let the matter season, as we Quakers say, before I can formulate a solution … or even, less grandiosely, before I can work out something to say that is likely to be helpful to some readers.

Sorry about that. I do think I can do it, and I will make a real effort to get it done in a week or so.

Besides, is the delay entirely a bad thing? Perhaps not, if you're a thoughtful sort of person. You might gain some real benefit from mulling the matter over yourself, in the meanwhile. Who knows? Maybe you'll come up with a better answer than I do.

Or one more helpful to you, at any rate.

Current Mood: reassuring
Current Location: In a castle made of clouds?

Maybe I should say a bit about why I've been sounding so forking cheerful lately, with regard to November's election. On August 11, I said, "I expect that everything will turn out okay." And on August 18, I described my mood as "confident."

What do I mean by "turn out okay"? And why am I so sunny about it?

To begin with, I expect that Joe Biden will win the election. I make no claim to be 100% sure about this, but I do consider it to be more likely than not. (If you disagree, let's not argue about it; I'm just stating my opinion.)

But there are those who really, really don't want Trump to remain president after January 20 … and who will tell you that, even if you assume that Biden wins, there are still things to worry about. This is sometimes expressed by the question, "What if Trump refuses to leave office?"

I don't deny that there is something to worry about here, but I do claim that the sheer amount of worrying going on, including my own, is sometimes not entirely rational. And I think that part of the reason why this happens is that we are not precise in the way we ask our questions. In particular, "What if Trump refuses to leave office?" is actually, when you look deeper, a nonsense question.

In other words, for an incumbent president who loses his bid for re-election, there is, strictly speaking, no such thing as "refusing to leave." That's because "leaving office" is not an action which the incumbent, in that situation, performs. Once the votes, including the electoral votes, have been counted, his "leaving" the office becomes automatic. After noon on January 20, he will not longer be president.

You could say that he doesn't "leave office"; the office leaves him.

Current Mood: serene

I have a question for you: what do you think are the most important three little words in the English language?

Now, because I used the phrase "three little words," it's likely that the first answer that came to your mind is "I love you." But if you know me, you'll know that, precisely because I manipulated you into thinking of that answer first, it's quite unlikely that that is the "right answer" in my eyes.

By the way, it isn't my intention to minimize the importance of "I love you." What I do want to do is to call your attention to the importance of these other three words -- which I'll reveal any minute now, I promise -- because I think they deserve more attention than they usually get. Perhaps, indeed, my question would have been clearer if I had asked, not for the "most important" three words, but for the most underrated ones, instead.

So. IMIHO (in my insufficiently humble opinion), the most important, and/or most underrated, three little words in the English language are ...

"I don't know."

What's so important about them? Well, that's real simple. People make a lot of very bad decisions because they ask themselves "What will happen if I do <whatever>" -- and then, if they like the answer, proceed to do <whatever>, without ever thinking about whether their prediction was certain, or just likely.

Suppose, for example, you were to get into your car, and ask yourself, "Am I going to have an accident on this trip?" And answer "no," because, well, you probably won't. But then, because the answer was no, you conclude that there's no point in fastening your seat belt. That's irrational, for obvious reasons, right? (Please say yes.)

If every example of the importance of "I don't know" were like that one, then the importance of it would be one of those things which is true, but doesn't need to be said -- in this case, because it's so obvious. But not all the examples are like that.

Suppose you are deciding who's going to get your vote for president of your country. One of the candidate says things like "Only I can fix it." And he makes clear in other ways that, if elected, he will centralize as much power as possible in his own office. His central message, perhaps not quite explicit, is "Trust me, and I'll take care of everything."

And suppose further you are, in fact, inclined to trust the guy. Maybe because, unlike other politicians, he seems to be saying what he really thinks. And so you decide to vote for him.

This, I submit, is highly irrational too, but the reasons why it is irrational may not be quite as obvious as they were in the seat belt example. After all, you're supposed to make up your own mind, so, if your own gut feeling is that this is the most trustworthy of the candidates, then what's wrong with voting for him on this basis?

Fundamentally, in order to understand what's wrong with it, you need to realize that, no matter how strong your gut feeling is, you don't know for certain that this candidate will prove worthy of that trust. And therefore, you need also to ask yourself: "What's the downside in case I turn out to be wrong?"

If this is also the one candidate who says he will be a "strong leader" -- will make the decisions himself, not let himself be ordered around by, say, Congress -- then the downside is considerable. In such a case, it may be more rational to vote for another candidate, one whose record suggests that he will "play by the rules," as set forth in the United States Constitution, even if your gut feel rates this other candidate lower on the personal trustworthiness scale.

I am (perhaps exceedingly!) confident that this, the importance of "I don't know," is, in fact, the fundamental principle behind all the "checks and balances" built into our Constitution. The people who wrote the thing went to a lot of trouble to (try to) make sure that no one person, or branch, had absolute power. Why did they bother? Because they understood that we can never know for sure who, if anyone, can be trusted that far.

So now you know the rest of the story.

Current Mood: cautionary
Current Music: Music: Leonard Cohen, "Everybody Knows"

I've been wanting to post a clarification—or, if you prefer, a correction—of my most recent post ("Q: How do you respond to a national emergency? A: Impeach the man who created it."). A recent reply to that post has further prodded me to attempt that clarification. So here goes.

In the original post, I certainly sounded like I was beating the drums for impeachment: "Do it! Do it now!." This doesn't make clear what question I was trying to answer.

A vague, generic formulation of the question would be something like: "Should we impeach (and remove) President Donald Trump?" But here are two more precisely formulated questions:

Given what we know so far, would impeaching (and removing) Trump be justified?
Given what we know so far, would impeaching (and removing) Trump be advisable?

And my main point, today, is that these are two different questions, to which an individual might reasonably give different answers. And when we talk about impeachment, we might understand each other better by making clear (as I did not), in any opinion we state, which question we are answering.

So what are my own answers to these two different questions?

To the question of whether removing Trump is justifiable, I answer "yes." This is the question I was really focused on answering; in particular, whether removal is justified by his blatantly unconstitutional "declaration of emergency," even without considering his various other transgressions.

And behind that opinion, by the way, is a more general opinion, which I didn't even state explicitly: that an "impeachable offense" (an action which justifies impeachment and removal) need not be a crime: need not be something to which the law attaches a criminal penalty. An attempt by the president to exceed his powers by doing something obviously unconstitutional is also an impeachable offense.

In fact, I'd go so far as to say that, other things being equal, a blatantly unconstitutional power grab, like this "emergency" declaration, is, other things being equal, more clearly an impeachable offense than is committing a crime, as such. Abuse of power is, fundamentally, what the impeachment provision in the Constitution is for.

So I am doubling down on my original position, as clarified. I strongly believe that, given the emergency declaration and its context, impeaching Trump and removing him from office would be justified.

But do I believe that it would be advisable? My answer to that one is, in fact, different, at least in degree of conviction. I lean toward believing it to be advisable, but I am far less certain of that. I don't want to be a crusader for it, at least not at this time. As I said in my reply to the anonymous comment, I think it may be just as well that that decision is not mine to make.

Now he's gone and done it. Donald Trump has declared that a decades-old situation at the US - Mexican border has suddenly become a "national emergency." He thinks that, having done so, he can now spend money on a "big, beautiful wall": money that Congress has, just now, refused to appropriate.

I don't think so, and I'm not alone. The media have published various pieces on ways that he could be prevented from doing this. One of those is Answers to 4 Key Questions About Trump’s Declaration of an Emergency, by Nicholas Fandos, published yesterday in The New York Times.

From the second paragraph of that story: "Lawmakers seeking to block the president have two paths — one in Congress, the other in the courts." It becomes clear, a little further down, that the path "in Congress" that he has in mind is this: "Under the National Emergencies Act, the House and the Senate can take up what is called a joint resolution of termination to end the emergency status ...."

Well, yeah, they can do that. What surprisingly few people have mentioned, so far, is that there's something else, something more decisive, that they can do. That something is called impeachment.

I have posted a comment on that Times story. The full text of my comment reads as follows:

From the story: "Lawmakers seeking to block the president have two paths ...."

That is not correct. There is a third option, and it is the one that I recommend.

The House of Representatives can vote to impeach the president, and the Senate can remove him from office.

This so-called "state of emergency" is utterly unlike any declared before. Let's call it what it is: an attempt to overthrow the Constitution.

As such, it is fully sufficient, even without the other high crimes and misdemeanors of which we know or suspect, to justify removing him from office.

And there is no need for committee hearings. The House, at least, could have its floor vote today.

Current Mood: determined
Current Location: Fifth Avenue
Current Music: Downpressor Man

You already know, I assume, that it's not just improbable that Alexandria Ocasio-Cortez will be the Democratic nominee for President in 2020; it's Constitutionally impossible.

But just for giggles, let's nobody tell Trump that, okay?

Current Mood: silly
Current Music: "Young Girl, Get Out of My Mind"

Just a few things to clarify, in relation to the last post (the one with the subject line, "Pity our underprivileged president ...").

Do I really think we should pity him, or consider him "underprivileged"? Absolutely. If you could choose, wouldn't you prefer being mentally privileged, rather than financially so?

What do I mean by "we should fire [him]"? I mean that the House of Representatives should impeach him, and the Senate should remove him from office.

I've written, in this journal, on the subject of impeachment before. I made myself sound dubious on the subject. But I never really said we shouldn't impeach him; only that the time didn't seem right to put energy into promoting the idea.

I think that has changed. Don't you?

Specifically, I am now prepared to say that it's time to begin impeachment proceedings.

Why? Well, I won't pretend that a Democratic majority in the House is totally irrelevant to my coming to this conclusion. But it's not really the reason for it.

Then what is? I won't attempt a comprehensive, general answer to this (not here and now, at least). For one thing, new facts have come to light. Also, other contributors to the public debate have, in the interim, come to the same change in, or clarification of, their positions; I generally agree with their reasoning.

There's really only one [more?] substantive point that I want to make, here, and even that one will be somewhat abbreviated. I just want to take a shot at answering this question: how can I say that it's time to get to work on firing the poor bastard, when in just the last post, I said that we need to emphasize Donald Trump's incompetence more, and his evil nature less?

Now, why is that even a question? Because the Constitution has that infamous phrase: a president (or other official) may be impeached for (and, apparently, only for) "high crimes and misdemeanors."

There is nothing like consensus on what, exactly, that phrase means. Indeed, there may simply be no answer as to exactly what it means. There does, in my reading, seem to be something close to a consensus on one thing that it doesn't mean: the most respected scholars on the subject seem to agree that an "impeachable offense" is not, always and necessarily, a crime in the penal-code sense.

And yet, and yet. Those words, "high crimes and misdemeanors," continue to bedevil us. So, for that matter, does the phrase "impeachable offense" (emphasis added). These usages nudge us into thinking that valid grounds for impeachment must be something like being guilty of a crime. In particular, they make us reluctant to think that it would be proper to "fire" someone, under this process, "merely" for incompetence.

And shouldn't we be reluctant to do that? At this point, the best I can do is to answer the question with a question: how reluctant should we be? I agree with the intuition that we don't want the House and Senate to feel that they can remove the president whenever they feel like it. But that doesn't give us a set of criteria, an algorithm that will tell us, or them, when it is Constitutionally proper to take this step.

Maybe it's just not possible to frame a usable set of criteria for this. Maybe such decisions can only reasonably be made in examining the facts of a concrete case. Maybe we need to say, today, about "impeachable offense," what I believe a Supreme Court justice did say, years ago, about pornography: "I can't define it, but I know it when I see it."

Essentially, I do believe that. At least the part about its being impossible to frame an explicit, algorithm-like set of criteria for what constitutes an impeachable offense. But I also think that there is more that can usefully be said about what would constitute a fair-minded approach to such a decision, in the matter of Donald Trump.

There is more to be said, but I am not prepared to say it now.

Current Mood: judicious
Current Location: Anywhere but the White House, please Gopod

Two entries back, I offered you an admittedly half-baked argument for impeaching (and removing) President Trump, based only on what we knew at the time. I also promised you an explanation of why I was not planning to press forward, right away, to make that argument more fully baked.

One entry back, I gave you part of that explanation. I said that I saw no hurry about building out the case for impeachment, given that there was at least one thing that the Congress needed to attend to more urgently than impeachment. That would be the passage of a "no first use of nuclear weapons" law.

In that same entry, I said that this "nuclear thing" was only one of the reasons "why not," and that I had three more reasons in mind. This time around, I plan to tell you about one more of the reasons.

But first, I want to clarify a couple of points. The first is to emphasize that when I speak of a "reason why not," I don't mean -- at least, not primarily -- a reason not to impeach. I mean a reason why I am not devoting my energy to arguing for impeachment. Sometimes, a reason for the one may also serve as a reason for the other. But not always.

And furthermore -- here comes the second clarification -- I'm also not giving reasons not to argue for impeachment, as such. Rather, they are reasons why I'm not devoting energy to strengthening the particular argument for impeachment which I introduced two entries earlier.

(As you may recall, the crux of that argument was that it was the president's duty to improve our defenses against foreign manipulation of our election processes, and that his abject failure to perform that duty could be grounds for impeachment, even if we assumed that he was not himself actively complicit in those manipulations.)

With those points made, I am ready to get on with telling you about the second reason.

Reason Two: There's a Lot of Groundwork Involved

It is something of a truism that impeachment is a hybrid process: quasi-judicial, but also quasi-political. One way that the latter is true is this: the process is actually performed by elected officials, that is, politicians (members of the House of Representatives, and then the Senate). Unlike federal judges, these people are elected for finite terms; if they want to remain in their respective positions, they need to be re-elected. And it is a simple fact, whether we like it or not, that this need has an effect on the way they do their jobs. In particular, it means that they are concerned about what the voters will think of their actions.

Yes, in the real world, they are also concerned about what potential donors of campaign funds will think. But in this particular discussion, I think we can afford the luxury of not focusing on that. Instead, I am drawing attention to the difference between "What will the voters think?" and "What is the right thing to do?" Federal judges are appointed for life, and the framers of the Constitution made that decision so that judges, unlike members of the House and Senate, could do what they thought was correct, in interpreting the law, and be relatively unconcerned about public opinion.

So ... the framers took this particular pair of responsibilities (impeachment and removal), and put it in the hands of people who -- by the nature of their jobs -- do care about public opinion. In particular, it is safe to assume, when they think about impeaching or removing a public official, that they care about whether the voters back home will think that what they are doing is proper.

What are the voters likely to think about that? That depends, partly, on whether those voters want to see the official in question -- in this case, President Trump -- remain in office. And that in turn depends, partly, on their political views.

But not entirely. A fair fraction of the voters are aware, if only vaguely, that impeachment is also a quasi-judicial process. They know that the Constitution says something (though not much) about the permissible "grounds" for impeachment; that is, about the criteria that Congressbeings are supposed to use in making impeachment-related decisions. Quite a few, by now, have at least heard the phrase "Treason, Bribery, or other high Crimes and Misdemeanors".

In short, many people do understand that this is a difference between our system and a parliamentary democracy. In the latter, the legislature can dismiss the chief executive simply because they no longer approve of the way she is doing her job. Under the US Constitution, it's not supposed to work that way.

Furthermore, not only do quite a few people know this, but a significant fraction of those people care about it, too. They believe in following the rules. So there are many people who would like to see President Trump gone (including, but not limited to, most of those who did not vote for him), but not all of those people automatically favor impeachment. They won't favor that until and unless they are convinced that it is being done on Constitutionally authorized grounds.

On the other hand, there isn't a lot of clarity about what that phrase -- particularly the "high Crimes and Misdemeanors" part -- means. Particularly among the general public. I suspect that most folks are under a mistaken impression about this. They think that impeachment requires the subject to be guilty of an actual crime: something explicitly prohibited in the statute books. Along with this, they probably also think that, in the Senate "trial" phase of the impeachment process, this guilt must be established by the same standard of proof that is used in criminal trials: "beyond a reasonable doubt."

I call these beliefs "mistaken," because, having read one short book on the subject, I think I know that neither of them is the consensus view among legal scholars. On the other hand, "mistaken" may be the wrong word, if only because there is no person or institution empowered to rule authoritatively on these things. Gerald Ford was probably thinking about this latter fact when he expressed the opinion that an "impeachable offense" is whatever the members of the House and Senate, at the time, think it is.

That opinion about the permissible grounds for impeachment -- we might call it the "Ford doctrine" -- amounts to saying that impeachment is a political process, not a judicial one. Whether or not you believe that it should be that way, one thing seems clear. Assume I was right, earlier, in saying that most Congressbeings, when considering impeachment or removal, will give some thought to whether "their" voters will approve of what they decide. If so, then, as a matter of practical fact, the Ford doctrine is at least partly correct.

That brings us close to the conclusion that I teased in the section heading, above: "There's a lot of groundwork involved." To establish that, I just need one more premise, concerning the particular "case for impeachment" that I laid out two journal entries ago. Namely: that argument did not claim that President Trump has committed a literal, on-the-books crime.

Given that fact about my argument ... and given the supposition that most of the public thinks, mistakenly or not, that crime is the only legitimate grounds for impeachment ... and given that the Congressional mind cares about public opinion ... it follows that you aren't going to get an impeachment, on the grounds I suggested, without doing a lot of public education first. (If you prefer a more neutral word, substitute "persuasion" for "education.") People will need to get used to the idea that the permissible grounds for impeachment are not that narrow.

Some voters will be much less receptive to the idea than others. That will depend, at least partly, on whether the voters in question, legal arguments aside, like the idea of removing Trump from office. In other words, it puts us squarely back in the political side of the process.

With the particular "case for impeachment" that I presented, it may be even a little more challenging than that. Based on my extremely limited reading in the legal literature, that is. That's because ... while those authors seem to have a consensus that a genuine, lock-'em-up-style crime is not required for impeachment ... almost all of what they say still uses the language of "offense" (as in "What constitutes an impeachable offense?") My "case," on the other hand, turns on a failure by President Trump to perform the duties of his office, and it's not entirely clear how to fit that into the concept of "offense," even when the latter is taken in the looser, not-necessarily-criminal sense.

I'm not saying that it can't be done, just that it will take some work. And in fact, there are places where the scholarship does seem to referring, obliquely, to cases of failure to perform one's duty. I just haven't seen anyplace where "grounds" of that type are addressed head-on.

If they haven't been, then that's another chunk of "groundwork" that needs to be done. Of course, that again raises the question: if it needs to be done, why don't I just get on with it?

Part of the answer to that question is quite simple: I am not a lawyer, let alone a "legal scholar." Someone with those qualifications could probably do a better job at clarifying these points about "proper" grounds for impeachment. And that person would definitely stand a better chance of being listened to.