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The Wrongologist

Geopolitics, Power and Political Economy

The Supreme Court Goes Back to Work

The Daily Escape:

Pyramids viewed from Cairo Street, Egypt – photo by Hossam Abbas

The Supreme Court’s new term begins next Monday, and much of America’s culture wars will move in front of the bench for adjudication. Some of the issues being litigated include abortion, gay rights and gun control. It’s no secret that conservatives control the court, and its liberal wing is in retreat. This could be a momentous year in shaping the country’s socio-cultural future.

On Monday, October 7th, the justices will hear arguments in the case Kahler v. Kansas, regarding whether the 8th and 14th Amendments allow a state to abolish the insanity defense. Four states, Kansas, Utah, Idaho and Montana have abolished the insanity defense. It shouldn’t be a surprise that Kansas says yes, and so does the Trump administration.

Also on Monday, they will hear Ramos v. Louisiana, regarding whether the 6th Amendment guarantee of a unanimous jury verdict to convict someone applies to the states. Currently, Louisiana and Oregon permit non-unanimous juries.

On Tuesday, the court hears a case concerning whether gay and transgender people are protected by federal civil rights laws that bar employment discrimination. Three workplace discrimination cases will be heard. Two of the three cases ask whether “because of sex” in Title VII of the Civil Rights Act of 1964 prevents an employer from disadvantaging employees on the basis of their gender identity or sexual orientation. Fewer than half the states have laws against firing workers because they are gay or transgender. Now the Supremes will decide if the federal civil-rights laws protect the 8.1 million LGBT workers in America.

It may not surprise you that the Trump administration says Title VII doesn’t apply to gay and transgender workers, contrary to the view of the Equal Employment Opportunity Commission.

On November 12th, they will visit Trump’s effort to end DACA, the Obama program that protects mostly Hispanic young adults from deportation. The case is Department of Homeland Security v. Regents, University of California, where three cases were consolidated for argument in which lower courts decided that the Trump action violated the federal Administrative Procedures Act.

Also scheduled for Nov. 12 is a case in which a US border patrol officer shot and killed an unarmed Mexican teenager who was not on US soil, but hiding in a culvert between the US and Mexico. The question is whether federal courts can award damages to the family for the agent’s actions.

On December 2nd, they are scheduled to hear a major gun rights case. The case is NY State Rifle and Pistol Assn. v. City of New York. The challenge is to the city’s ban on the transport of licensed and unloaded guns outside the city limits. But the city amended the law, and is arguing that the case is now moot, since it has given the challengers what they sought. The case may be dismissed.

Among possible cases that have not yet been scheduled are two appeals regarding Republican-backed abortion restrictions enacted in Louisiana and Indiana. If the court were to take either or both of those cases, it would raise the possibility of a ruling that further curbs abortion rights.

The Louisiana case concerns a challenge by an abortion clinic to state requirements that doctors who perform the procedure must have “admitting privileges” with local hospitals. It is similar to a Texas law that the Supreme Court struck down in 2016, when Justice Anthony Kennedy sided with the court’s liberals. But last year, Kennedy retired and was replaced by Bret Kavanaugh.

It would be extraordinary if they take up this case and then overrule a precedent set just three years ago. The only thing that’s different is the composition of the court.

Looking further ahead, we may see contentious arguments on the limitations of presidential power. Likely subjects include the president’s push for the power to remove the director of the Consumer Financial Protection Bureau; executive privilege in battles over Trump’s tax returns; and use of a national emergency designation to use money appropriated elsewhere to fund the border wall.

And finally, there’s impeachment. In April, Trump tweeted that if “the partisan Dems ever tried to impeach”, he would “first head to the US Supreme Court”. There is little doubt that the Supremes would move quickly to hear such a case.

It wouldn’t be smart for Trump to expect them to come to his rescue during impending impeachment proceedings. In 1993 Chief Justice William Rehnquist wrote for a unanimous court that impeachment authority “is reposed” in Congress, “and nowhere else”.

Then, if the House of Representatives actually impeached Trump, Chief Justice John Roberts will find himself playing a constitutionally required role: presiding over the president’s removal trial in the Senate.

All in, a pivotal term for the Supremes and for America.

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Partisan Gerrymandering Overturned in North Carolina

Daily Escape:

Colchuk Lake in the Enchantments, part of the Cascade Mountains, WA – August 2019 photo by atgctgtt

This summer, the Supreme Court decided 5-4 in the case Rucho v. Common Cause that federal courts could not invalidate maps based on partisan gerrymandering, although states might still do so.

At the time, Wrongo snarked about the decision:

“Wrongo’s shorter John Roberts: The federal government can’t do anything about your state stripping you of representation. You have to go back to the people who stripped you of representation and ask them.”

Despite Wrongo’s skepticism, on Tuesday, the North Carolina (NC) state Supreme Court put an end to eight years of Republican partisan gerrymandering when it ruled against NC Republicans who had installed it in 2011. From the Daily Kos (DK):

“On Tuesday, a three-judge panel delivered a major blow against Republican gerrymandering when it struck down North Carolina’s state Senate and state House districts for violating the rights of Democratic voters.”

More:

“The state court ruled that these maps, designed to entrench Republican rule, ran afoul of the state constitution’s guarantee of free and fair elections. These illegal districts were so extreme that they helped Republicans to maintain their legislative majorities in 2018’s elections even though Democratic candidates won more votes statewide. If fairer districts are implemented for 2020, they could put Democrats in striking distance of a majority in one or both chambers.”

NC’s current state-district maps had to be redrawn again in 2017, after the US Supreme Court affirmed a lower court’s ruling that they constituted an unconstitutional racial gerrymander.

Now, NC’s voters will be voting in new state election districts for the third time since 2011.

This decision is similar to one in PA in 2018, where a state court ruled that PA’s congressional map was unconstitutionally gerrymandered. It also relied on the PA state constitution, so its decision was not reviewable by the US Supreme Court.

When SCOTUS decided not to rule on the constitutionality of partisan gerrymandering, it said quite clearly that state courts could rule on the question based on the individual state constitutions. NC now joins PA as states in which this strategy has succeeded.

The NC and PA decisions are reminders that we can challenge bad laws under state constitutions. States are free to recognize more rights than those enumerated in the US Constitution, they just can’t recognize fewer rights. This is the sort of “federalism” that conservatives hope you never learn about.

More from DK:

“While this case only concerns the maps in one state, every state constitution has provisions similar to North Carolina’s that could be used to challenge partisan gerrymanders so long as there’s a receptive and fair-minded state Supreme Court majority to hear such a case. This ruling therefore underscores the importance of Supreme Court elections in key swing states next year, including Michigan, Ohio, and Wisconsin. Progressive victories in these races would go a long way toward blocking the GOP’s lopsided control over redistricting as we head into the next round of redistricting following the 2020 census.”

The NC court decision was 345 pages long. The opinion really makes it clear how there’s just no possible defense for what the GOP was doing in NC. In addition, the opinion might as well have had “John Roberts is an embarrassing hack” stamped on every page.

This doesn’t mean that Democrats can relax between here and 2020. Michigan, North Carolina, Ohio, Texas, and Wisconsin are states where 2020 state Supreme Court elections could either give Democrats a majority, or set them up to gain one in subsequent elections. That will be crucial in the next decade, since the Census will also take place in 2020. There will be new voters to count, or to disenfranchise, depending on your Party’s ideology.

This war must be won in the trenches, not by the national candidates.  Wisconsin gave us a bad example in April. Although Democrats in Wisconsin won the popular vote in 2018, they didn’t work hard enough to get their state Supreme Court nominee over the finish line in 2019, despite having a progressive plurality.

Democrats have to realize that they won’t win if they think only certain elections are important enough to get out and vote.

These battles are local, not national, and now that the US Supreme Court will be sitting on its hands for a decade or more, these are fights we must win.

Democrats can’t afford not to contest local judicial elections.

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Saturday Soother – August 24, 2019

The Daily Escape:

Ground Swell – 1939 painting by Edward Hopper

In news you most assuredly haven’t seen, the 10th District US Circuit Court of Appeals in Denver ruled that “Faithless Electors”, people who do not cast their votes in the Electoral College for the winner of their state’s presidential election, are now free to vote for anyone they want.

This Colorado case came about because in 2016, one elector refused to vote for the state’s winner, Hillary Clinton, and instead, voted for John Kasich. The Colorado Secretary of State ordered him to cast his vote for Clinton, or be replaced. He refused and was subsequently replaced with an elector who voted for Clinton.

The faithless elector sued, and the 10th Circuit decided in his favor, saying that the Constitution provides:

“…Presidential electors the right to cast a vote for president and vice president with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.”

The court traced the history of faithless electors back to 1796, when Samuel Miles voted for Thomas Jefferson instead of John Adams. Congress counted his vote. In the 2016 election, there were 13 anomalous votes from three states, and Congress also counted those votes.

This decision could have major ramifications for future presidential elections. The attorney for the faithless elector, Jason Wesoky, said the Court’s ruling essentially makes the laws requiring electors to vote for the state’s winner unenforceable. That impacts 16 states today.

It is even more significant, since a growing number of states are rethinking their Electoral College systems in response to the 2016 election. The 16 states that have passed laws that award all of their electoral votes to the winner of the national popular vote, currently equal 196 electoral votes.

If states representing another 74 electoral votes pass it, the so-called National Popular Vote bill will control the majority of votes in the Electoral College. The bill has passed at least one chamber in 8 additional states with 75 additional electoral votes.

This Appeals Court’s decision means that yet another crucial issue to  the future of our democracy will be in the hands of the Supreme Court, once the appeal gets to them.

Enough of news you won’t ever use, it’s time for your Saturday Soother!

Start by brewing up a mug of Honduras Marcala coffee ($19/12oz.) from Santa Barbara’s Handlebar Coffee Roasters. The founders are professional cyclists who met while riding in the Amgen Tour of California, America’s best bike race.

Now, settle back and listen to something very different, a guitar band from Mali called Tinariwen. They are Tuareg musicians from northern Mali. They play rolling melodic lines and loping rhythms that evoke the desert sands of the Sahara. The band’s name literally means “deserts” in their language, Tamasheq. Here they are playing “Kel Tinawen” from their upcoming album “Amadjar”, available on September 6th:

The video is of a road trip along Africa’s Atlantic coast as the band and crew cross the Western Sahara. They will be touring the US in September. For an early date in Winston-Salem, NC, some locals on social media are leveling violent, racist attacks against the musicians. Welcome to America!

Here is a translation of the lyrics:

Evil tongues – you can keep talking.

The uprising will be impossible to suppress.

The treachery of your evil words has sold out your brothers for your own interests.

You’ve locked them up in a prison, every last one of them.

You fine talkers, tell us what road you plan to take to avoid us if we remain rooted.

You’ve forgotten the suffering of our parents,

The suffering they have experienced since birth,

Unable to find water, unless they dig wells with their own hands.

Those who read the Wrongologist in email can view the video here.

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Trump Still Wants His Citizenship Question

The Daily Escape:

Sandia Mountains, New Mexico – 2019 photo by cameforthegames

On June 27, the Supreme Court held that Commerce Secretary Wilbur Ross’s March 2018 order directing the Census Bureau to add a citizenship question to the 2020 Census questionnaire could not go forward. At the time, we all thought that there would be no such question on the census.

Now, that’s no longer true.

“President Trump and Attorney General William P. Barr began working to find a way to place a citizenship question on the 2020 census just after the Supreme Court blocked its inclusion last month, Mr. Barr said on Monday, adding that he believes that the administration can find a legal path to incorporating the question.”

More from Barr:

“I felt the Supreme Court decision was wrong, but it also made clear that the question was a perfectly legal question to ask, but the record had to be clarified…”

The ruling left open the possibility that the citizenship question could be added to the census if the administration came up with a better rationale for it.

Here’s a way to look at what the Administration means: The Supreme Court said we couldn’t do this. Our reasoning was stupid and insulting. So now, we have to come up with something better. Yeah, we said it was too late for that, but we’re working on a brilliant new reason.

And you shouldn’t make anything of the fact that the lawyers the DOJ had working on it just quit:

“Barr also acknowledged that the career Justice Department lawyers who had worked on the census question had little appetite to continue on the case after Mr. Trump inserted himself into the process…. The Justice Department announced a day earlier that it was replacing them, a nearly unheard-of move.”

On Monday, the plaintiffs in the case asked a NY judge to block the DOJ lawyers’ withdrawal because they did not demonstrate “satisfactory reasons” for the change. On Tuesday, the judge denied the request, except for two DOJ attorneys.

Barr also said that the Trump administration would soon reveal how it plans to add the question, but he wouldn’t detail exactly how it would be justified.

On Monday, Speaker Pelosi announced that she intended to schedule a full House vote “soon” to hold Barr and Commerce Secretary Wilbur Ross in contempt of Congress for defying subpoenas for documents related to the census question. This had been recommended last month by the House Oversight and Reform Committee.

If Barr goes forward, the question will be provisionally added, and a new time clock for the case starts again.

But, Trump may have screwed the pooch. He admitted that the whole point was to favor Republican redistricting, which was exactly what his lawyers have said is not the case, because that’s unconstitutional. Trump said we need the census citizenship question for many reasons:

“Number one, you need it for Congress — you need it for Congress for redistricting,” he said Friday. “You need it for appropriations — where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.”

Trump apparently doesn’t realize that America bases redistricting on the population of the district, not the citizens in the district. Yet, there’s still a strong possibility that his question will be part of the census.

In the case mentioned above, four Supreme Court justices said they would vote for literally any position the administration takes on the issue. And a fifth vote (Chief Justice Roberts) searched in vain for any possible fig leaf that would allow him to join them. When he couldn’t, he sided with the liberals.

Americans should be outraged that the Trump administration willingly engaged in an illegal action, and then lied about it in federal court. They should be outraged that four members of the Supreme Court thought that was just fine. The Chief Justice thought it could have been fine, had they come up with a less blatant pretext, which he invited them to provide. Any Chief Justice worthy of the title would have simply ruled that the process couldn’t be salvaged.

The big story here isn’t the census question. It’s the DOJ’s legal team refusing to continue working on the case. This is unprecedented, and a really big deal.

The most plausible explanation for their quitting is that they told the Supreme Court it had to decide by June 30th, or the question couldn’t be included. If they now have to go back to SCOTUS, they would have to admit that was a lie.

We have to hope that the administration’s malevolence will be ruined by their incompetence.

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Sunday Cartoon Blogging – June 30, 2019

While most of the media was blathering about the Democratic debate dog-and-pony-shows, the story of the week was the Gerrymandering decision that the Supreme Court announced on Thursday. Its decision in Rucho v. Common Cause says that the federal courts have no business policing partisan gerrymanders. That issue is for states to handle.

Chief Justice John Roberts:

“Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void….The States, for example, are actively addressing the issue on a number of fronts.”

The Conservative justices are saying that citizens have no recourse to the federal courts to solve what has become a major weakness in our democracy.

Roberts is now three-for-three, with Citizens United opening the floodgates to unlimited corporate money funding candidates. Then, with Shelby County vs. Holder, he eviscerated part of the Fourteenth Amendment and defanged the Voting Rights Act. And now, in Rucho v. Common Cause, he delegates to state legislative majorities that were enabled by the first two rulings, the ability to perpetualize (? probably not a word) their party’s time in office by drawing unrepresentative district maps with no recourse to judicial appeal.

Justice Elena Kagan dissented:

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights….Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections….”

Wrongo’s shorter John Roberts:

“The federal government can’t do anything about your state stripping you of representation. You have to go back to the people who stripped you of representation and ask them.”

This has enabled a charade of a democracy to replace the one that we thought we had. Chief Justice Roberts’s legacy will be the death of democracy. All of today’s cartoons will concern gerrymandering.

The domestic violence will continue:

The Roberts decision simplified:

Elections have consequences:

 

Supremes sit idly by while America burns:

 

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Sunday Cartoon Blogging – June 23, 2019

Iran’s solution to possible war with the US. If this happened, Trump would say he got a love letter from the Ayatollah:

Little-known technology shows Pentagon the best story to use about its reasons for war:

This week, the Trump administration argued in court that detained migrant children do not require basic hygiene products like soap and toothbrushes in order to be held in “safe and sanitary” conditions:

Mitch ain’t willing to discuss reparations:

Reparations are a difficult subject. As the historian Howard Zinn said, “You can’t be neutral on a moving train.” He meant that you either abide the status quo, or you oppose it. You either commit yourself to be the best anti-racist you can be, or you don’t. Whichever you choose, you should be honest in how you frame your choice. Saying that reparations are not worth pursuing, or simply doing nothing about them, is an implicit defense of the policies and systems that have created our present-day racial inequities.

The Supremes held 7-2 that a cross located in a war memorial could be displayed on public property (at a traffic circle). They said that some crosses are merely historic icons. Their decision favors one religion over others, and it seems hostile towards religious minorities. And why won’t Christians act like Christians?

How the Capitalism game actually works:

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Sunday Cartoon Blogging – May 26, 2019

In another “elections have consequences” story, The Economic Policy Institute (EPI), has a new report about how states can blunt the 2018 Supreme Court decision in Epic Systems v. Lewis. In that case, the court ruled that employers can use forced arbitration clauses to strip workers of their right to join together in court to fight wage theft, discrimination, or harassment. The EPI forecasts that by 2024, more than 80% of private-sector, nonunion workers will be covered by forced arbitration clauses.

They argue that, given the current very conservative Supreme Court, it will be up to individual states to pass “whistleblower enforcement” laws like those introduced in Massachusetts, Maine, New York, Oregon, Vermont, and Washington, to empower workers who need to sue law-breaking employers, including those covered by arbitration clauses.

On to cartoons. Here’s a look at abortion from the GOP white male perspective:

Trump won’t (can’t?) deal:

GOP’s accomplishments are transparent, even if they are not:

The Parties see things differently:

Summer replacement series doesn’t get raves:

Graduation speakers aren’t created equal:

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Sunday Cartoon Blogging – March 31, 2019

Wrongo and Ms. Right saw “What the Constitution Means to Me” on Broadway last night. It’s a riveting and powerful show, good for both your head and heart. The cast is led by Heidi Schreck in an amazing performance. Schreck also wrote the play. She tells her (true) story of earning college money by traveling around the country delivering short speeches on the Constitution and competing in rapid-fire challenges about its amendments.

In the play, she resurrects her teenage self, tracing the effects of the founding document on generations of women, including many in her family. She focuses on the Equal Protection Clause of the 14th Amendment, and the “penumbra” of Amendment 9. She applies these to a few cases, specifically, the Supreme Court case, Castle Rock v. Gonzales.

Schreck plays a recording of Justices Scalia and Breyer debating Castle Rock v. Gonzalez: They focus not on the mother, or her children who were kidnapped and killed by her husband. Or, on the negligence of the local police, who failed to respond to the permanent restraining order she had against her husband, despite the many, many times that Gonzalez called them. Instead, they pedantically debate the meaning of the word “shall.”

It’s a debate about rhetoric, entirely stripped of humanity.

She lost. The Supremes decided that the police did not have an obligation to protect Ms. Gonzalez or her kids. They held that enforcement of the restraining order was not mandatory under Colorado law. See the play if you can.

On to cartoons. Barr’s report isn’t the report you are looking for:

Barr’s report will keep America at odds until we see what Mueller says:

Barr tells us that Donnie’s clean:

Last week, Republicans called for Chair of the House Permanent Select Committee on Intelligence, Rep. Adam Schiff (D-CA), to be removed. Every Republican on the committee was on board for Schiff’s removal. Schiff didn’t take it lying down. He pointed out everything shady and suspicious that Trump & his associates did during the campaign. He closed by saying “But I do not think that conduct, criminal or not, is OK. And the day we do think that’s OK, is the day we will look back and say that is the day that America lost its way.” Watch Schiff’s response here:

Betsy shows her disability:

Trump, king of health care, says the Republicans will sometime in the future, become the party of health care:

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Religious Right Praying Justice Ginsburg Dies

The Daily Escape:

Winter, Yosemite Valley, Yosemite NP, CA – photo via wallpaper studio

 This week Right Wing Watch, who follow America’s least attractive thinkers so that we don’t have to, had a column about how Evangelical Christians are circling around Ruth Bader Ginsburg like vultures. The article included this tweet from anti-abortion and anti-gay activist Matt Barber:

We know that RBG just had cancerous tumors removed from her lungs. Yet, what has been made public so far is that RBG was given a clean bill of health, and is expected to make a full recovery. That diagnosis seems to be a big disappointment to many on the Christian Right.

They were extremely happy with Donald Trump’s choice of Neil Gorsuch. They weren’t so thrilled with Brett Kavanaugh, preferring Amy Coney Barrett, who they saw as totally committed to overturning Roe v. Wade. And they want more. In addition to overturning Roe v. Wade, they want prayers back in schools, and they want same-sex marriage abolished.

Things get interesting when you consider just how much Evangelicals truly, deeply hate RBG:

  • In October, pastor Rodney Howard-Brown, who has prayed over Trump in the Oval Office, guest-hosted The Alex Jones Show on Infowars, where he said that Ginsburg should be shot for treason.
  • Lou Engle, a dominionist organizer of stadium-sized prayer rallies, urged Americans to engage in three days of fasting and prayer over the Supreme Court. Earlier, he led prayers asking God to “sweep away the judges” who support the right to abortion.
  • A few weeks ago, Phyllis Schlafly’s Eagles re-distributed a 1993 Phyllis Schlafly attack on Ginsburg’s feminist philosophy.
  • Liberty Counsel President Mat Staver has argued that Congress should have impeached justices who supported Roe v. Wade and Obergefell vs. Hodges (the case that legalized same-sex marriage). (BTW, Liberty Counsel opposed the Senate’s bill that would outlaw lynching in the US because the bill extends the right not to be lynched to gays and transgender people.)
  • Earlier this month, former Trump campaign adviser Frank Amedia insisted that Chief Justice John Roberts has not proven to be sufficiently reliable to the Religious Right. That means God has to remove more justices so that Trump can fill Roberts’s seat with another justice whose “values and morality” reflect a “kingdom enlightenment as to what is required by God to change the law of this land now.”
  • Heritage Foundation Senior Legal Fellow John Malcolm told the Daily Caller that Trump would be under pressure to replace Ginsburg with a woman, and named Amy Coney Barrett as a preferred successor.

You may not believe that God spends much time thinking about who sits on the Supreme Court, but these people are deadly serious. They think God is a “family values” Republican. They believe that they know who God wants on the Supreme Court.

America needs to look very closely at any group that argues for followers of a specific religion as a test of who is worthy to sit on the Supreme Court, or who should head our government.

Praying for the death of RBG ought to repugnant to all Americans, but sadly, it isn’t particularly surprising that some “Christians” exhibit such callous inhumanity. They, and their kind of thinking, should be repudiated by all Christians.

There’s some consolation in the fact that RBG has worked to make America a more fair and equitable place. She has made that her life’s calling.

Contrast that to these phony Christians who are working to make America a one-party political entity that follows Jesus Christ.

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Can Trump Legally Declare a National Emergency?

The Daily Escape:

Waterton NP Alberta, CN -2019 photo by lostcanuck. Wrongo and Ms. Right visited Waterton in 2016, it’s a very beautiful spot.

Wrongo watched part of the two NFL wild card games on Sunday. Vectoring away during commercials, he saw a 2020 campaign ad by Trump on CNN that said in part:

Drugs, terrorists, violent criminals and child traffickers trying to enter our country — but Nancy Pelosi and Chuck Schumer care more about the radical left than keeping us safe. The consequences? Drug deaths. Violent murder. Gang violence. We must not allow it…

Wrongo thought, “Wait! What?” Then a “paid for by Trump 2020” note appeared at the bottom of the screen.

Trump is setting us up. He’s now made his shutdown part of the 2020 narrative. And, locking out federal employees is now the official position of the GOP, not simply that of his Trumpitude.

This is part of Trump’s plan to lay the groundwork for his “National Emergency” special powers. The NYT had an interesting article by Bruce Ackerman, a Yale law professor, about the legality of such an action:

While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.

Trump is again hyping the dangers at the border, as he did with the caravan in the weeks leading to the midterm election. Now, his spokespersons, notably Sarah Sanders on FOX and Homeland Security head Kristjen Nielsen, at her private meeting with the House Homeland Security Committee, have falsely claimed that more than 4,000 terrorists were apprehended in 2018 along the southern border.

According to FOX, all of these “terrorists” were apprehended at airports, not at border crossings.

Sanders, Nielsen and Trump are implying that a wall will stop terrorists. There’s no question we need to be vigilant about terrorists and illegal border crossings, but a wall is not going to stop them, or really even deter them. We still need to have to have advanced cameras, drones, and personnel patrolling because determined people will find ways around the wall.

To continue the hype, Trump announced that he will address the nation on Tuesday night before traveling later in the week to the U.S.-Mexico border. Trump plans to address the nation from the Oval Office, in a “first” for his presidency.

All of this would seem ridiculous if not for Trump’s desire to win at any cost.

There is a chilling article by Elizabeth Goitein of the Brennan Center in The Atlantic, in which she says that any president’s ability to evoke these sorts of emergency powers is practically unfettered:

The moment the president declares a “national emergency”—a decision that is entirely within his discretion—he is able to set aside many of the legal limits on his authority.

Goitein goes further:

The moment the president declares a “national emergency”—a decision that is entirely within his discretion—more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts.

As an example, Trump could seize control of US internet traffic, impeding access to certain websites and ensuring that internet searches return pro-Trump content as the top results.

It isn’t possible for Wrongo to resolve the viewpoints of Elizabeth Goitein and Bruce Ackerman. There is a long history of judicial deference to the executive branch on national security issues. It will ultimately come down to whether the five conservative Supreme Court Justices think they have the power to step in and overrule a president who clearly concocts a fraudulent emergency.

Sorry to scare everyone, but it is absolutely unclear how this will be hashed out by the Supreme Court.

Don’t bet the house on them making the right decision.

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