The Problem with Governing by Presidential Executive Order

 

As Donald Trump leaves the presidency his last task will be to issue a batch of executive orders meant

to cement his legacy.  Among the first tasks Joe Biden will perform on January 20, 2021 after he becomes president will be to issue a batch of executive orders to undo those of his predecessor.  Both Republicans and Democrats will cheer for their side’s executive orders. Is this any way to run a government?  Unfortunately, the answer has become yes, and that is a problem that needs to be fixed.

            It seems like an endless quadannular cycle.  Presidents come and go and with that executive orders change.  For example, when Bill Clinton became president in 1993 he issued an executive order reversing one issued by Ronald Reagan that had banned the use of US foreign aid funds to groups that supported abortion.  In 2001 George Bush reserved that executive order.  In 2009 Barack Obama reversed Bush’s order.  In 2017 Donald Trump reversed Obama’s order.  In 2021, Joe Biden will reverse Trump’s order.  There are scores of other executive orders that have a similar pattern and fate.

            Executive orders have been around since George Washington.  There have been nearly 14,000 executive orders issued since 1789.  Franklin Roosevelt issued the most with 3,522, William Henry Harrison the least with zero (he died within a month of his inauguration).  In recent history,  Bill Clinton, George Bush, and Barack Obama respectively issued 254, 291, and 276 executive orders, each in two terms.  Donald Trump has issued 195 so far in one term, even after declaring as candidate he would not resort to governing by executive order.

            There are two constitutional basis for executive orders.  The first is found within Article II of the Constitution that vests in the president executive power and which authorizes him to  take care that the laws be faithfully executed.  These powers give the president some discretion to make routine administrative and law enforcement decisions.  Executive orders issued under Article II are policy but not law per se, and presidents can issue them at will and overturn them  at will.  These constitute a large percentage of the type of executive orders presidents issue, including ones Trump will pronounce in the next few weeks and which Biden will reverse.

            The other type of executive order premised upon Congress delegating authority to the president via the law.    This delegated power gives presidents and the executive branch the authority to issue rules or regulations—often to fill in the gaps in laws—or act in emergencies.  Executive orders issued pursuant to delegated power carry the force of law and the Administrative Procedures Act generally has rules regarding when and how they can be issued and how they can be repealed.  Executive orders regarding the environment, energy, food or health, banking, or the workplace often fit into these category.

            Obama but more so Trump has used executive orders for this purpose.  Presidents are using executive orders more because of the partisan polarization stalemating governing in Washington, D.C.  Similar problems at the state level, including Minnesota, when it comes to governor’s executive orders, most recently with the pandemic.

The Trump administration has arguably had the worst records ever among  US presidents in court regarding having these executive orders struck down because it failed to follow proper procedure in issuing them.  No surprise here.  Trump and his administration largely were ignorant or indifferent regarding legal protocols and procedure, thinking that being president was like being a CEO on The Apprentice or sitting in the executive suite of  Trump Towers.  The final story of the Trump administration in part will be told about how less effective he was because of his procedural ineptitude with executive orders and governing in general.

            Trump’s coming wave will meet a similar fate.  Biden will overturn many on day one, many of the others will be invalidated in the courts, even by judges he has appointed.  But these checks beg the broader question—is governing by executive order any way to run a government?

            The answer is no.  Presidents have become too powerful and need to have their power clipped.  Congress can begin to do that by thinking about the scope of delegated power they wish to give to the president. Post-Watergate there were some efforts to do that but over time they were undone.  One thing Joe Biden should think about is a longer-term plan to change the law to make it harder for executive orders to replace working with Congress to make law.  Governing by executive order only exacerbates the polarization of American politics and gives Congress a way out of having to make the policy choices they were elected to make.

Can Trump Sue to Victory? The Math and Law are Beyond Unlikely

 By all accounts Joe Biden has won the US presidency.  It’s not official yet, but the math suggests he is

the president-elect.  Donald Trump refuses to concede, vowing to litigate and sue his way to victory and take his case to the Supreme Court where his three appointed Justices will deliver him a win.  This is Trump’s fantasy, as well as his supporters, and the fear of those who opposed him.  Is this scenario possible or likely?  Simply put, no–this is not Florida 2000 and Bush v Gore all over again.  Let us explore Trump’s case.

Technically Joe Biden has not yet won the presidency or any state yet.   The results in each state are not official yet.  There is a period after elections in the US where final counts are made and any errors are corrected.  This is normal.  During this period it is not unusual for small adjustments in vote counts to change.  Approximately two weeks after elections in each state a body called a canvassing board meets to certify the election results and eventually issue election certificates declaring winners.  This is when someone is officially the winner.  Up until this point candidates can make administrative challenges or recounts can occur.  Normally, only after the results have been certified can one go to court.

There are several hard date deadlines coming soon. Under federal law all disputes regarding  a state’s electoral votes need to be resolved by December 8.    This is so that if there is a challenge to them in Congress there is a presumption of validity for them.   This is the so-called safe harbor provision.  Federal law requires the electors to cast their ballots on December 14.    The Constitution requires Congress in a joint session on January 6, 2021, to certify the electoral vote count and her any challengers from members of Congress.  Finally, the Constitution says that the current term for the president expires at noon on January 20, 2021 when the new president takes overs.  Any litigation must respect these dates, with  it likely that any suits will need to be resolved by the December 8, deadline.

As on November 9, 2020, Joe Biden potentially has 279 electoral votes, nine more than the 270 needed to win the presidency.  This vote total includes Michigan (16), Nevada (6), Pennsylvania (20), and Wisconsin (10).  It does not include Arizona (11) and Georgia (16).  Biden is ahead in the latter two and likely to win both, pushing his total to 306 electoral votes.

For Trump to win he would need to then overturn 36 electoral votes, flipping at least three if not more states.

One way to do this is through a recount of votes.  Perhaps in demanding a recount in several states he can change the election outcome.  This is unlikely to succeed, especially in more than one state.  Ballot counting is highly accurate in the US, with statewide elections barely changing totals by more than a few hundred votes.  Biden’s margins of victory are sufficiently large enough in all these states that there is little chance they will change results.

The second alternative is the legal challenge route.  Individuals cannot sue in court just because they are mad.  They need to show a legal injury.  For Trump, there are several dubious legal arguments.

One, Trump will argue widespread voter fraud.  Trump has been arguing that such fraud exists for years but never has offered proof of it.  He did this before the election this year with allegations that vote by mail was rift with fraud.  He and his followers seem to insinuate that large numbers of dead, undocumented immigrants, or other persons vote.  If he has evidence of that his legal team needs to prove this in court.  So far lower courts have rejected claims of this and the evidence is overwhelming that there is no significant voter fraud of any type in America.  This belief in such is a defining legend for many Republicans.

But even if such fraud does exist, the president must prove it exists and to such an extent that  it affected the reliability and outcome of the election such that a new election is needed.  Rarely do judges order such an election because it is impossible to rerun an election, and that would especially be the case with a presidential election where there are strict time limits in place.  More likely, what Trump needs to show is that there was enough fraud that a large class of votes must be thrown out such that this number across several states will change the vote count.  This is an evidence issue and votes are not thrown out based on mere speculation or assertion.  In many cases, one needs to show  vote by vote why there is fraud.  Again, unlikely.

One argument being thrown out by Trump also is that votes received on or before election day which were cast by absentee ballot but not counted until after the election should not be counted.  The claim is that they violate the Federal Uniform Election law which requires the election to take place on a specific day (November 3, this year), and that any ballots counted after that date violate that federal law. This argument will fail.  States routinely count absentee ballots after election day.  Nothing in the federal law prohibits this.  Counting ballots received by election day are different from counting ballots received after election day and to which maybe the federal law applies, but Biden’s victory does not depend on these latter ballots.

Three, Trump has argued that his poll watchers or observers were denied access to viewing the ballot counting.  Lower courts have rejected that and upheld laws saying they must keep their distance from counters and do not have a right to lean over their shoulders.  This is to prevent intimidation.  These laws will be upheld.  But even if there is a violation here all that it will require is perhaps some recounting but it does not change the count.

Finally, Trump seems to claim some type of Bush v. Gore violation.  Bush v. Gore in 2000 was a constitutional Equal Protection violation in one state that involved the procedures for how to ascertain voter intent.  The case involved one state where the vote totals were only a few hundred apart.  The Court’s decision to halt the recount in 2000 was that it might go past the safe harbor provision.  It is hard to find a parallel Equal Protection violation here that would invoke Bush v Gore unless somehow one says that states are treating different classes of voters differently in ways that are constitutionally wrong.  This is a hard argument to make, especially across several states.  It would take a lot of legal maneuvering to get a case to the Supreme Court and it would take even more to do that to invalidate tens if not hundreds of thousands of votes across two or more states.  From a legal perspective, the chances here are impossible.

Maybe the real goal as some contend is for Trump to delay the electoral college votes from taking place in multiple states, and then throwing the election Congress as the Constitution provides.  Here is where Bush v. Gore may apply–the Supreme Court may simply do in litigation now as it did then to stop it before the December 8, safe harbor provision kicks in.  Despite fantasies and fears by  Republicans and Democrats, don’t count on congressional selection of Trump as president.

Overall, the president cannot litigate himself into a victory.  The math and law are against him.

Trump, the Constitution, and Portland

        There are lots of problems constitutionally and politically with President Trump sending federal forces into places such a Portland, Oregon or Chicago, Illinois allegedly to restore order.  Overlooked in most stories are how these federal agents represent the return of the agent provocateur as a tool of politics.

            Start with the basics.  Trump issued an executive order declaring authority to send in federal agents to cities and states in order to restore order.  Constitutionally there are numerous problems here.  No one will argue that the federal government has the authority to use its authority to protect its facilities such as courthouses.   Inherent within Article II of the Constitution–either section one which vests executive power in the president or section three which says the president shall take care that the laws shall be faithfully executed–one can find ample authority to do that.

            However, remember that the US Constitution is a power-conferring document.  There is no inherent federal or presidential authority–all of it must be traced back ultimately to some text in the Constitution.  Among the powers that the US government does not have is general police power.  By that, states have broad authority to enact laws to protect the health, safety, welfare, and morals of the people.  The police power is also what gives states the general authority to pass criminal laws and take enforcement actions to maintain law and order.  Because of this authority states and, when delegated to them, cities can create police departments.

            There is no federal equivalent.  There is no “Federales" or national police force in the US as there are in many other countries.  Not even the Insurrection Act of 1807 allows for that, contrary to what the president asserts. Any federal crimes or law enforcement must trace back to the Commerce or perhaps another constitutional clause.  The US government has no general criminal law jurisdiction or authority, especially at the state and local level.  On top of that, the Posse Comitatus Act of 1878 bans the US of federal troops for law enforcement purposes, reinforcing the notion that general policing is an issue for state and local governments according to the Tenth Amendment.

            But even though the US government lacks general policing authority, it is possible for them to intervene when requested by states or cities.  However, that is not the case with Portland or Chicago.  Trump is directing unnamed or marked federal agents to be deployed there, often without the knowledge and certainly against the request of local officials.  There is no constitutional authority to do that.  Finally, to the extent that these federal agents are simply arresting or roughing up peaceful protestors raises critical First Amendment questions, and if they are questioning them without advising them of their rights, there may also be Fifth Amendment issues. Overall, there are many  problems from a legal perspective here

Of course, Trump’s motives appear not legitimately law enforcement.  Post-George Floyd and the riots that occurred, the president is running a redux of the 1968 Richard Nixon law and order campaign, playing on the racial fears and anxieties of whites who saw the race riots of 1967 across the nation.   It is also a diversionary tactic to take away attention from his mishandling of the coronavirus and the economy.

            But the play book is even worse.  These federal law enforcement personnel are the new agent provocateurs—a person who intentionally encourages people to do something illegal.  The  term comes from nineteenth century France and the Soviet Russia period where the government used plains-clothes police to incite the opposition to break the law.  This is Trump’s tactic.  Take a tense situation  such as a  Black Lives Matter demonstration and send in plain clothes federal agents to arrest, question, and rough up. Also do it without local authorities knowing what is going on.  The recipe here is to inflame, giving the president a manufactured crisis in which he can show force to appease his base.  It is 1968, Chicago, and Mayor Daley all over again, with Trump hoping that the American public will react in the same way and go with the law and order candidate one more time.

            Four years ago, Trump declared immigrants to be the enemies from which he would protect us.  Now the enemies are internal and like four years ago when he fabricated legitimate immigrants and refugees into caravans of rapists and murders at America’s door, he now is trying to convert legitimate protests into threats on America with agent provocateur.

If you are Waiting for the Revolution, Please Pay Cash

You say you want a revolution?  Apparently it does not look like young people are ready for it yet.

Nor are others.  It will also not be televised or lived streamed on Youtube.
In two presidential campaigns Bernie Sanders has called for a revolution, yet not enough people, especially young, have shown up for it.  Legitimately Sanders is speaking to economic concerns that they and other feel–expensive college, gross economic inequality, flat wages, and high housing and medical costs.  Capitalism has not delivered for them and democratic socialism looks good.  Yet the hope for a revolution, with revolutionary consciousness brought to the masses from the outside via the revolutionary guard of Vladimir Lenin, spontaneously arising via Mikhail Bakunin, or built via an electoral movement via Eduard Bernstein, is not happening yet.
Overtime the moderate politics of the Baby Boomer era will end.  Already this is the first election in nearly 30 years where Boomers are not the largest generational voting cohort, the Millennials now are.  Perhaps, as some think, demographics are destiny and power will eventually shift along with the agenda.  That time has not yet arrived.  It is time for B.
Demographics are not destiny.  Hillary Clinton and the Democrats are learning that the hard way.  You do not get people’s vote simply because you have the right demographics–you still need the right message, right candidate, and strategy to win.  Clinton’s mistake in party was thinking she had the votes of the Midwest and did not have to campaign or ask for them, that is why she lost Pennsylvania, Michigan, Wisconsin, and almost Minnesota.  Conversely, Sanders’ has hoped that a new narrative appealing to the 45% of the electorate that feel disenfranchised would engage them to vote.  It too has failed so far to work, necessitating a plan B for him.
One of the first rules of politics is that you have to take power in order to govern and make policy.  If Democrats want to win they need to form a grand coalition to do that.  So far while Joe Biden and the moderate Democrats are putting together a coalition that includes suburbanites, women, and older African-American voters, they have done little to reach out to younger and more liberal voters.  They need them.  Without them it is a pipedream think there are many moderate Republicans for disaffected Trump voters who will vote for Biden.  Conversely, Sanders has done little to expand his base and get his agenda enacted.  A grand coalition is needed.
Consider France in 2002.  Jean-Marie Le Pen was the candidate of the far right National Front Party, a reactionary ultra-nationalist xenophobic party.  He was challenging Jacques Chirac,  President, and candidate of the Rally for the Republic Party.  Socialists detested Chirac.  But the prospect of staying home and electing Le Pen was too great and they threw their support to Chirac  who then won.
It is time for Democrats and Sanders supporters to reach their rapprochement if their goal is to win an election.  Moderates need to give on some issues such as free college or health care and Sanders needs to give up on his  absolutes too.  Both sides are playing intra-party winner take all politics that will do nothing more than make 2020 a repeat of 2016.  If they want to win, both sides need to work together to build the electoral college coalition to defeat Trump. Otherwise, while waiting for the revolution it might be better if both sides pay cash.

It's not just Trump: The Case for a Weaker American Presidency

                    The American presidency is too powerful.  That is what the Senate impeachment trial and the 2020 presidential election should be about.  Instead, masking this deeper constitutional problem is Donald Trump and his personal abuses of power.

            Yet these abuses of power are not simply the product of one errant person, but part of a longer and deeper pattern of congressional delegation and acquiescence of power to the president that needs to be reversed, especially by the next president of the United States.

            The American Revolution was a product a fear of abuse of executive or royal power. Americans are familiar with the first lines of the opening paragraphs of the Declaration of Independence which begin with “When in the course of human events” and “We hold these truths to be self-evident.”  But the second half of the Declaration is a bill of particulars against the excesses and abuses of power British King George III inflicted upon the colonies.  They included his refusal to “Assent to Laws,” and “obstructed the Administration of Justice.” Our independence and revolt against the king were a continuation of a centuries long battle between parliamentary supremacy and monarchical authority that begin in 1215 with the Magna Charta. 

            So great was the fear of executive authority that in America’s first constitution, the Articles of Confederation, presidential power was vastly limited by a Congress that chose him.  In adopting our present constitution in 1787, while some such as Alexander Hamilton urged for a very powerful presidency, most of the framers sought to limit this office through narrowly defined powers, impeachment, and the concepts of checks and balances and separation of powers. Constitutional framer Charles Pinkey feared giving the president too much military power would “render the Executive a monarchy.” Edmund Randolph feared similar monarchical tendencies in the president if the executive branch were treated as unitary under one person.  James Madison said it had to be clear that the president did not have either legislative or judicial powers.

            As originally designed, the presidency was not, as some wrongly contend today, to be a co-equal branch with Congress and the judiciary.  Constitutional Convention delegate Roger Sherman said that the president ought to be “nothing more than an institution for carrying the will of the Legislature into effect.”  James Madison declared in Federalist Paper 51: “In republican government, the legislative authority necessarily predominates.” The consensus of the Framers and by constitutional design, was that the presidency was envisioned to be a far weaker institution compared to Congress than it has become.  Yet even with the checks imposed on it, some, such as Patrick Henry, feared the new presidency which was given “Extreme Powers; the powers of a king.”

            Multiple factors changed the balance of power between Congress and the presidency. One, emergencies, such as wars, pushed the presidency in a more powerful direction, such as with Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and Lyndon Johnson.  Two, the constitutional framers never envisioned the rise of a large administrative bureaucracy under the control of a president which would augment executive authority.  Three, Congress over time delegated or acquiesced significant rule making authority and discretion to the president and the executive branch to make rules or issue executive orders that carried the force of law.   All this produced by 1973 as Arthur Schlesinger, Jr. aptly described, an imperial presidency that needed to be constrained.

            As an immediate result of Richard Nixon’s abuses of power Congress enacted, often over presidential vetoes, several pieces of legislation.  The 1973 War Powers Act aimed to limit presidential authority to deploy military force without congressional ascent.  The 1974 Budget and Impoundment Act sought to limit the ability of the president to withhold and divert congressionally authorized funds.  The 1976 National Emergencies Act repealed all existing presidential declarations of emergencies and purportedly circumscribed future orders.  The 1978 Ethics in Government Act required disclosure of financial interests of many executive branch employees.  It also included a provision for the creation of a special prosecutor to investigate the executive branch, addressing concerns stemming from Richard Nixon firing his self-appointed prosecutor Archibald Cox in the famous 1973 Saturday Night Massacre. Other laws, several hundred by estimate, while delegating power to the executive branch, sought to constrain his discretion by giving Congress a one or two-house veto of decisions made.

            At the time these laws looked like limits on presidential authority, but they failed for many reasons.  One, as with the Ethics in Government Act, they exempted the president from many requirements.  Two, Supreme Court decisions favored executive branch power.  In Immigration and Naturalization Service v. Chadha, 462 U.S.919 (1983) the Supreme Court declared the legislative veto unconstitutional.  In N.R.D.C. v. Chevron, 467 U.S. 837 (1984), the Court said that disputes over the meaning of congressional statutes would be resolved in favor of executive branch interpretations. Three, Congress, in the case of the special prosecutor, let the law expire.

            Four, all of these laws still assumed the president would voluntarily comply with invoking the law, such as with the War Powers Resolution, or continued to grant him broad discretion to act.  For example, the National Emergencies Act never defined what a national emergency was.  Finally, collectively all of these laws assumed there would be unwritten norms or conventions that would simply constrain presidential power and that the White House would voluntarily comply with the law.

            Nearly a half-century later, these post-Watergate limits have faded with memory.  The events of 9/11, the financial crisis of 2008, and partisan polarization have all eviscerated the institutional balance of checks and balances of the Constitution.  President’s unable to get their way with Congress, govern by executive order, relying in large part on authority granted to them by Congress. No longer is easy to contend, as Madison argued, that the legislature predominates, we may have the new imperial presidency.

            What is scary is how the impeachment process and Democratic presidential candidates simultaneously attack Trump’s abuse of power but at the same time pledge that if elected would issue a host of executive orders within their first hundred days in office.  For example, Elizabeth Warren has proposed executive orders that cover 21 policy areas.  Amy Klobuchar pledged a list of 100 executive orders she would issue. What would be better to see is a promise among Democratic presidential candidates that if elected that would work to limit presidential power.

            What might some of those new limits be?

            Reauthorize the special prosecutor law to investigate the executive branch.

            Amend the National Emergencies Act to define what constitutes a national emergency and make it clear here and in a new budget act that no national emergency authorizes a president to divert money unless explicitly authorized by Congress.

            Adopt a new War Powers Act that limits presidential authority to initiate first use of nuclear weapons and which requires presidential authority to deploy troops short of congressional declarations of war.

            Amend the Ethics in Government Act to require presidential disclosure of financial interests and taxes, and impose tighter requirements on conflicts of interests, including mandatory blind trusts and absolute bans on personal use of private investments or holdings that conflict with government duties.

            Adoption of a law facilitating and simplifying Congress’s ability to prosecute executive branch officials for failure to comply with document production or appearing to testify.

            As president, direct the Office of Legal Counsel and Justice Department, to reconsider past opinions claiming sitting presidents cannot be indicted for a crime, and urge the Supreme Court to modify its Chevron decision so that disputes in legislative interpretation give priority to congressional intent and meaning.

            Overnight it will not be possible to reassert the balance between Congress and the president.  The impeachment trial in the Senate, as well as the 2020 elections, are a good opportunity to do this.  Yet to do this one needs to realize that the problem is not simply Donald Trump but a larger gravitation of authority from Congress and to the president that needs to stop.

The Electoral College Map Right Now Says Trump Wins in 2020

The 2020 presidential race is effectively over in 44 states plus the District of Columbia.  Who will be the next president is down to a handful of voters in six swing states.

            As Americans have now learned twice since 2000 the presidential popular matters little.  It is the electoral vote and the number of electoral votes it takes to win the presidency is 270.   Because of laws in 48 of the 50 states (Maine and Nebraska the exceptions), whichever presidential candidate wins a plurality of its popular vote wins all of its electoral votes.  Across the country because some states are more Republican or Democratic  leaning, they are safely in the camp of one party or another regardless of  the candidate.

            Based on recent elections, voting patterns, and polling, a Democratic Party candidate for president is nearly certain to win California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, (overall state) Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York,   Oregon, Rhode Island, Vermont, Virginia, and Washington.  This is a total of 19 states plus the District of Columbia.  In the case of Maine, Democrats probably will overall win the state and three of its four electoral votes.  The other electoral vote, which is for the Second Congressional district, goes to the Republican.  Democrats start with 222 electoral votes.

            A Republican Party candidate will win 30 states plus part of Maine.  These states are  Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, (Second Congressional District), Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.  Republicans start with 216 electoral votes.  

            The likely voting patterns of 44 states calls into question how important the stand on issues is compared to partisanship.  In these states it does not matter if a Democrat is advocating for Medicare of all or something less, issue stance will have marginal impact on the election.

Yet there are six remaining states–Florida, Michigan, Minnesota, North Carolina, Pennsylvania,  and Wisconsin–totaling 100 electoral  votes, which are too close to call and they are the swing states that will decide the presidency.

            These states, exception Minnesota, have swung back and forth between Republican and Democratic Party presidential candidates over the last four elections.  Head-to-head surveys of Trump versus Biden, Sanders, Buttigieg, and Warren find these states to be competitive.  However, even among these six, we can make some guesses about what they might do.  Minnesota is a state Trump almost won in 2016 and is targeting it in 2020.   Yet Trump is losing by double-digit numbers to any likely Democratic candidate.   In Michigan, Biden, Warren, and Sanders are leading Trump, but only Biden appears to have a statistically significant lead.  Move these 26 electoral votes to a Democrat and now it is 248. 

            On the Republican side, while recent polls indicate that Florida and North Carolina give Biden a slight lead in both (Warren and Sanders are effectively tied with Trump), these states are hard for Democrats to win.  They have large white working class populations who are motivated Trump supporters.  Move the 44 electoral votes over to Trump, and he now has 260.

            This leaves Pennsylvania’s 20 electoral votes and  Wisconsin’s 10 which will determine the 2020 election.  As of now, the only Democratic candidate who has a statistically significant lead over Donald Trump in Pennsylvania is Scranton’s own Joe Biden.  Assume he is the nominee; Democrats win the state  but still are short two electoral votes.

            This leaves it up to Wisconsin.  Biden is  the only Democrat with a lead over  Trump in the Badger state, but it is effectively a statistical tie.  Given the high percentage of white working class voters in Wisconsin, their likely motivation especially post-impeachment, and  devotion of some Democratic resources to winning or holding other Midwest states such as Minnesota or Michigan, move the ten electoral votes to Trump.  With that Trump wins an electoral college re-election with a bare minimum 270-268 victory.
         Now, assume Democrats hold Maine -2, this then makes the electoral vote 269-269, no majority. This then means according to the Constitution that the House elected in 2020 will pick the net president, with each state getting one vote. Right now with the current House Republicans hold a 26-24 edge, with Michigan and Pennsylvania tied. Republicans control a majority of the states despite the fact that Democrats have majority control. Assume Republicans continue to hold a majority of states in the new Congress and Democrats have majority control, Trump wins in the House. The battle for partisan control of state congressional delegations is also important.

            A lot can change between now and November 2020.  How impeachment and the economy play out are two  issues. As we also saw in 2016, campaign strategy  matters, and Hillary Clinton lost in part because she failed to develop an effective electoral vote plan.  Similarly, this preliminary study shows that perhaps only in a few states and among a handful of voters does the actual candidate  stance on issues matter.  But what might matter is whom the candidate is and in what state and based on polling nearly a year out the Democrats best chance of winning the presidency might be with Joe Biden because he appears best positioned to win several swing states, including a decisive Pennsylvania and  Wisconsin.

Trump’s Impeachment: What is the Democratic Party’s Post-Acquittal Game Plan?

What are the Democrats going to do the day after the Republican Senate acquits Donald Trump on
the articles of impeachment?  This is perhaps the most important question the Democrats need to address and so far it does not look like they have an answer.
Donald Trump has done a lot of bad things as president that might rise to the level of treason, bribery, or high crimes and misdemeanors.  Leveraging US foreign policy interests for personal election advantage with Ukraine is one example.  So is obstruction of Congress, eleven counts of possible obstruction of justice documented in the Mueller report, and violations of the Emoluments clause.  Any or all of them might be impeachable offenses, yet barring the unexpected, the House will settle on abuse of power and obstruction of Congress as the two articles of impeachment it will send over to the Senate for trial.
Again, barring the unexpected, the Senate will acquit.  What then?  What have the Democrats gained or accomplished?
There are several arguments supporting impeachment.  One is that if the Democrats do not impeach it will embolden this president to continue to corrupt the 2020 elections with other impermissible acts.  Or that the failure to impeach will embolden future presidents to do what Trump has done, or even worse.  Maybe, but what is an acquittal going to say?  Does the acquittal vindicate Trump, leaving both him and future presidents justified in terms of doing what he is already do, but now with the stamp of approval in terms of acquittal?
Maybe impeachment will shift public opinion against the president in the 2020 elections?  However, Trump already lost the popular vote in 2016 but won in the electoral college and that could happen again in 2020.  Public opinion does not really matter, especially in a few swing states, and even if it does matter, there is little indication so fr that the impeachment process has moved it.
Maybe impeachment is meant to deter Trump?  But does anyone really think impeachment, especially with acquittal, is a deterrent to Trump?
Maybe impeachment is for the history books, staining Trump as only the third president in history to be impeached and tried in the Senate?
Maybe all of these are valid reasons, but the bottom line is that Trump is going to be acquitted and the Democrats need a plan for what they are going to do and say the day after this happens.
The real prize for the Democrats is getting Trump out of office and that means defeating him in the 2020 election.    Maybe impeachment fits into that plan but it is not obvious how and instead it may be a distraction to that larger prize.  Do the impeachment and acquittal put Trump’s fundraising into overdrive?  Does it energize his base to vote in larger percentages than in the previous election, especially in the critical swing states of Wisconsin, Michigan, Pennsylvania, North Carolina, and perhaps Minnesota?  Or does the impeachment strategy leverage vulnerable Republican  Senators to vote to acquit Trump and thereby enhance the Democrats’ possibility of winning control of the US Senate?
All of the above are good questions and so far there seems little discussion about what is next for the Democrats in terms of how they see the impeachment ultimately leading to the ouster of Donald Trump from the presidency in 2020.

Are They High? Why the Minnesota DFL is pushing marijuana legalization

            The Minnesota DFL is making legalization of marijuana a 2020 election issue. Governor Walz has instructed his agencies to prepare for it and Democrats are kicking off a statewide listen tour to tout legalization’s benefits.  Does such a strategy make political sense or are the Democrats high?

            From a public policy perspective, the current criminalization “war on drugs” has failed. I argued that in a Texas Tech Law Review Article 26 years ago, well before it was fashionable to advocate for legalization.  The current criminalization approach has failed to stop drug usage, imposed racially arbitrary sentences, and cost hundreds of billions of dollars in government enforcement and lost personal freedom and productivity due to incarceration.  Maybe for some, usage of marijuana is a matter of personal freedom to use a harmless drug.  However, as we have seen with the opioid crisis and some research on prolonged use of marijuana, use of any drugs ought also to be viewed as a public health issue with the question being what is the best way to regulate a specific drug to address it real or potential health issues.  Criminalization has failed with marijuana and legalization of some sort is the answer.  From a public policy perspective the question is what type of legalization.

            But policy change requires political opportunity.  The DFL sees the time as now to advocate for it., despite the fact that the Republican State Senate Leader Paul Gazelka has said legalization will not happen next year.  So if legalization is dead next year why push it?

There are several reasons.  The first is polling data that suggest 64% of those surveyed by  Gallup favor legalization, including in Midwest states such as Minnesota..  However, what legalization means varies by person.  A Mason-Dixon poll found recreational legalization support only at 37%.  Neither poll indicated that recreational legalization was a top issue for many voters.  Thus, while it appears that there is majority support for legalization, it is less clear that recreational use is a top political or policy priority for a large percentage of the voters. 

For the Minnesota DFL, they may be hoping that supporting marijuana legalization is the 2020 equivalent of the 2012 marriage amendment.  In that year the Republicans placed on the ballot a state constitutional amendment banning same-sex marriages.  The theory was that support for the amendment would be so strong that it would help the GOP maintain control of the state legislature and win Minnesota for presidential candidate Mitt Romney by energizing the party base.  It backfired.  Instead, it energized the DFL, especially young voters, and it resulted in flipping the state legislature to Democrats who in 2013 legalized same-sex marriages in the state.

More specifically, though, Democrats may be reading numbers from the 2018 election.  That year two pro-legalization parties in Minnesota qualified for major party status.  In the race for State Auditor, the Legalize Marijuana Now Party received 133,913 votes, whereas in the race for Attorney General,  Grassroots Legalize Cannabis received 145,748, or 5.28% and 5.71% of the statewide vote for those offices respectively.  In running for office, the two pro-legalization parties opted  not to run against one another to prevent splitting of votes.  This is important because one can argue that those who voted for one of the pro-legalization parties are those who view the issue as their top priority. This means not that 10% of the voters supported pro-legalization parties, but something around 5-6% of those casting votes in either the State Auditor or Attorney General races.

The Minnesota Secretary of State indicated that 2,611, 365 individuals cast ballots in 2018.  Assume that the 145,748 Grassroots Legalize Cannabis vote is a fair estimate of those who support legalization as a primary or top issue.  This works out to 5.58% who voted for a pro-legalization party.  In the counties of Hennepin, Ramsey, and St. Louis,  31,976, 14,720, and  5,471 respectively voted for a pro-legalization party or candidate.  In total, these three counties constituted 62,167 or 42.7% of the pro-legalization vote in the state.  The other 56.3% was clumped in urban areas or college-town areas, with thin support in more rural areas.  Even in suburbs, support was  less.  For the Attorney General’s race, in Edina and Eden Prairie, two typical and more affluent suburbs that might be likely to support legalization, 2,462 out of 62,523 voters or 3.94% of the voters went for the Grassroots Legalize Cannabis Party.

What do all these statistics suggest?  Perhaps they underestimate support for recreational legalization as a top priority.  But they do indicate a small percentage of the population cares about the issue and the DFL feels it cannot ignore it.  Failure to support legalization may mean more voters drift away from the party, making it harder to pick up a Senate majority or mobilize voters for statewide races.  Yet, the geographic distribution of support for legalization  is clumped, strongest in areas where the DFL are already strong.  Moreover, if the race for control of the state, especially the legislature, goes through the suburbs, especially with suburban women, it is not clear that a  strong legalization approach makes sense.  In talks I have given, when legalization is raised, many suburban women exclaim “Another thing I  have to protect my children from.”

Perhaps marijuana legalization will do the same in 2020, mobilizing young voters to come out and vote. Or perhaps it will alienate suburban (female) voters, or it leads to a counter-mobilization by the GOP who are already motivated to come out to support Donald Trump.  This is the gamble the DFL is taking going into the 2020 elections in its advocacy for recreational marijuana.

Trump, Class, and Identity Politics in the 2020 Presidential Campaign

Donald Trump has made it clear his 2020 presidential campaign is about identity politics. Unlike 2016 where  economic anxiety and nationalism were pretexts for race and identity, in 2020 white nationalism and racism toward immigrants, Muslims, and people are color are out front and central to his message.  Trump is no long Richard Nixon of 1968 using code words for race, he is George Wallace of 1968 overtly running on race.
Yet Trump is not the first and probably the last candidate to run on identity politics.  Appeals to it have a long American history, dating back to and encouraged by the constitutional framers.
America was born a nation of identity politics.  It was a nation defined by being White, Anglo-Saxon and Protestant (WASP), but also a nation hostile to Catholics, Jews, Native-Americans, and Blacks, the latter who were kept as slaves.  The US was defined both by who “we” were, and by the “other.”  The US is the only country that has the concept “Un-American”; no other national has a similar phrase to identify and define.  Identity is inborn in the logic of American politics, as scholars such as Richard Hofstadter and Perry Miller point out.
But while cultural values may drive identity politics, American political institutions inflame it.  Historian Charles Beard controversially contended in his 1913 An Economic  Interpretation of the Constitution that one the constitutional framers did was to recognize the potency of class politics and seek to transform it into identity or group politics. 
James Madison’s Federalist Paper number 10 opens recounting the dangers of factions or groups that can divide a society.  But he tells us that “the most common and durable source of factions has been the various and unequal distribution of property.”  Decrying the impracticality or desirability  of eradicating property differences as a threatening liberty, Beard seeks Madison’s call in Federalist 51 that “Ambition must be made to counteract ambition” and in Federalist 10 for “greater variety of parties and interests” to check one another.  Pit groups against one another, divide up the people, and prevent a majority from suppressing the rights of the minority who, in the eyes of Madison according to Charles Beard, were the property holders.
The Beardian gloss on the Constitution and the  Federalist Papers saw the brilliance of American politics in how the framers recognized the potency of American politics and sought to transform, sublimate, or displace it into interest group politics.  Eventually mainstream American political science would call a variant of this politics pluralism–the competition of groups for power desegregates it, producing the power-sharing supposedly characteristic of American politics. In theory, such politics would be less confrontational and conflictual than class, arguably allowing for more compromise and sharing of power as coalitions of groups change to pursue their interests.
Nice theory, but there is a problem.  Combine the institutional framework of America’s constitution and pluralism with the deep seated culture of identity and one gets a political system that institutionally encourages identity politics.  Of course racism toward African-Americans has always been there, as has that toward Native-Americans, Latinos, and Asian-Americans.  But over time persecution of the Irish, Italians, Catholics, and other groups have also been a mainstay of America and its politics.  Political campaigns have been defined by both by the “us” and who are the real Americans, and the “others,” those Un-Americans whom we need to purge from out soils.  Moreover, appeals to identity have proved to be anything but less conflictual than class politics; instead they have elicited some of the most passionate and hateful fights in American history.
Throughout American history class and identity have dueled as contenders driving American politics.  While class is always there, and has become more so as the gap between the rich and power in the US has exacerbated since the 1970s, the focus of American politics has mostly been dominated by identity politics in the last 50 years.  For progressives supportive of a civil rights agenda, there are good and important reasons to do that.  But as Tom and Mary Edsell pointed out in their 1991 Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics, progressive identity politics produced a counter or chain reaction in reactionary identity politics that is at the core of the  ideology of Donald Trump’s political message to white working class America today.
Donald Trump’s attacks on Representative Ilhan Omar and three other female members of Congress who are persons of color simply elevates and removes any lasting doubt about intentionality of Trump’s narrative of identity politics in 2020.  It lays bare and returns American politics to its roots, one where race and identity are central.  It shows how combining cultural identity  that defines us versus them, with institutional design, and not party polarization produce a potent recipe for that politics that is driving the 2020 presidential campaign.

Unconventional Minnesota Political Wisdom and the 2020 Elections

Three conventional wisdoms pervade the 2020 Minnesota political landscape.  They are: 1) Donald Trump cannot win the upcoming Minnesota’s presidential race: 2) Ilhan Oman is safe to win re-election in the Fifth Congressional District; and 3) the DFL will hold the State House of Representatives and pick up control of the State Senate.  While all three of these scenarios are entirely possible and maybe likely, there are reasonable scenarios where all three could be wrong and that the Republicans have a good 2020 year in Minnesota.

            Consider first the case for convention wisdom.

            Minnesota is the most reliable Democratic Party presidential state in the country, with the last time a Republican winning its electoral votes was in 1972 with Richard Nixon.  Yes, Donald Trump got to within 50,000 votes of beating Hillary Clinton in 2016, but that was a fluke.  Clinton was a horrible candidate, was beaten badly by Sanders in the caucuses, and did not come back to campaign during the general election while Trump did, especially during the closing days of the election.

            No Republican has won state-wide office in Minnesota since Tim Pawlenty did it in 2006.  In 2018, Senator Klobuchar won 60% of the statewide vote, with Governor Walz nearly winning  54%, Senator Smith 53%, and Keith Ellison (for Attorney General), the weakest performing statewide DFLer at 49%.

            The DFL flipped 18 seats to retake the Minnesota House.  Had the State Senate been up for re-election, convention wisdom is that they would have flipped it too given that there are several vulnerable Republican senators located in suburbs that the DFL won in 2018 House  elections.

            In the Fifth Congressional District, Ilhan Oman won election with 78% of the vote. The last time the Republicans won Minnesota’s Fifth Congressional District was 1960.  Since taking office Omar has acquired a national base and has already raised at least $800,000 if not now nearly $1,000,000 for her reelection.

            As of June 019, Trump’s approval rating in Minnesota was barely 40%.

            Conventional wisdom looks terrific for the DFL going in to 2020 given these statistics.  Trump’s low approval should help the DFL easily hold the state house, pick up the state senate, assistant Tina Smith win reelection, and perhaps allow the Democrats to pick up the First and Eighth congressional seats lost in 2018.  Given all this, this should be little hope for optimism among Republicans and that Minnesota is a lost cause for them. 

Yet Minnesota Republican party chair Jennifer Carnahan  and Donald Trump are optimistic the Republicans can win  the state in 2020.  Perhaps it is not so bleak for the GOP next year and that the conventional wisdom that DFL holds unto may not be correct.

Here is the counterventional wisdom.

Trump’s core base remains highly motivated and if anything, even more united perhaps that before.  Trump has consolidated support in Minnesota outside the Twin Cities metro region, especially in the Iron Range, which used to be a strong DFL center.  The Iron Range has been moving Republican for years.  Trump has indicated he wants to move Minnesota in 2020—the only Midwest state he did not win in 2016—and he plans to campaign  here a lot.

Evidence suggests that Minnesota was moving Republican even before Trump and that the DFL base may be contracting.  In 2008 Obama won  42 of the 87 counties in the state, in 2012 he won 28, and in 2014 Dayton won 34.  In 2016 Clinton wins only 9 counties.  In 2018, Walz wins only 22 counties, Smith 20, Ellison 14.  From 2008 to 2016, the GOP presidential vote increased 47,500, the DFL vote decreased 205,000.  According to CNN exit polls, the partisan voter identification for  the DFL was 37%, for Republicans 35%.  This was the narrowest gap between the two parties in decades for a presidential election, and the lowest partisan identification for the DFL in decades according to presidential exit polls.

In the Fifth District, Omar has made several moves that potentially could alienate voters.  He comments about Jews and Israel, even if not accurately reported, have created a storm of controversy among many voters for her.  With a congressional district with a high percentage of Jewish voters, this is a cause of concern.  Omar is also dogged by campaign finance violations, new allegations about her immigration and marriage status, and perhaps concerns about false tax  returns.  She has become a major foil of Donald Trump who constantly tweets comments about her when he comes to Minnesota, and it is clear that part of his 2020 Minnesota presidential run will be to make it a referendum on Omar.

A critical realignment may place many of the large Twin Cities suburbs in the hands of the DFL for a long time.  This does potentially suggest DFL state senate pick ups there.  But as several 2019 special elections demonstrated, the DFL is vulnerable in rural and greater Minnesota.  The Senate currently is 35-32 GOP.  There may be about four vulnerable suburban GOP senators, but  there is an equal number of DFL ones in greater or rural Minnesota.  For the Democrats to capture the state senate  they may need to flip six or more seats in order to offset losses.

A counterventional GOP strategy begins with Trump campaigning heavily in the state, strengthening his support in rural and greater Minnesota areas.  Democrats did well in 2018 because Trump himself was not on the ballot and with him now actively campaigning in Minnesota it will energize the GOP even more.    Nationally, if Minnesota has become a swing state, it competes for Democrat dollars that could also go into Ohio or Florida, much richer and perhaps even more critical electoral vote states (Yet if Democrats nationally lose Minnesota or have to really defend it, they are in trouble in the 2020 presidential race).

As part of Trump’s 2020 Minnesota campaign, he and other Republicans ratchet up the attacks on Omar.  If her political and personal problems continue to mount, Omar because a potential problem for state Democrats who need to distance themselves from her.  Within her district, while very popular, it would not be impossible to beat her.  Scenario one:  Within a DFL primary someone challenges her.  In the last week reports have been that Minneapolis Councilwoman Andrea Jenkins’ name is being polled as a possible candidate.  In a district where identity is important, Jenkins could split DFL support, giving voters who dislike Omar’s political views and personal problems an alternative.  Scenario two:  Someone like Jenkins opts not to challenge in the DFL primary but go to a general election instead.  Possibly splitting the DFL vote and picking up the GOP in the district elects her.  Scenario three:  In a three way race featuring  Omar, Jenkins, and a centrist pro-Israel Republican, the latter sneaks in to win the Fifth.

Whether the counterventional wisdom or even the strategy is viable is a matter of much debate.  However, it does suggest that the DFL  may not have it easy in 2020 and that there are avenues for the GOP to do well in 2020.

Klobuchar Sexism and the Day the Walz-DFL Agenda Died

For Amy Klobuchar, Tim Walz, and the Minnesota DFL, it was a week ripped from the opening line of A  Tale of Two Cities–It was the best of times and the worst of times.  As Klobuchar prepares to declare her presidential candidacy and Minnesota Governor Tim Walz and the DFL House majority prepare to move their agenda, reality is settling in to derail them.

Klobuchar’s Management Style: Sexism or a Legitimate Criticism?
During her 2016 presidential run I posed a quiz when it came to Hillary Clinton’s campaign:  What percentage of voters would never vote for her because she is female?  I suggested 30% and most everyone thought I was way too high.  Post 2016, I think I was too low.  Going into 2020 there is still a high percentage of voters who will never vote for women for president and sexism will be the fate any female candidate confronts, whether from the voters or the media.  The same will be true for Amy Klobuchar.
A barrage of stories have emerged from the Huffington Post and BuzzFeed that Klobuchar had horrible relations with her staff  both as US Senator and back to her day as Hennepin County Attorney.  These revelations may be news to Minnesotans but have been dirty little secrets and knowledge among insiders for years.  Klobuchar’s ability to massage the local media largely kept these stories from appearing.  Yet now that she is running for president, Klobuchar is facing the rough and tumble reality of a national media which she has not similarly been able to control.  As long as Klobuchar was simply Minnesota’s Senator, making carefully crafted statements on Rachel Maddow or in a Brent Kavanaugh hearing, she was not going to be attached.  But run for president and nothing is out of bounds.
The question is how much of the reporting is legitimate or sexism?   No doubt many men in Congress are terrible bosses and work poorly with their staff yet little or none of that is reported.  There is a double-standard when it comes to female leaders and Klobuchar is confronting that standard now.  But also for so long she has enjoyed an extended honeymoon with the press, and many of the grumblings and criticisms of her have been suppressed.  Do her personnel policies speak to her fitness as a leader?  Klobuchar’s media honeymoon is over.

The Day the Walz-DFL Agenda Died
The most important and overlooked story in Minnesota politics this week was the Senate District 11 special election where Republican Jason Rarick defeated DFLer Stu Lourey.  With the  exception of one story by Channel 5's Tom Hauser, few appreciate what happened, and even then  Hauser underestimated its significance.
Senate District 11 was a solidly DFL seat for eons, held by Becky Lourey and then her son Tony Lourey.  It was part of the coalition of Senate seats at or near the Iron Range that historically help anchor the DFL majority statewide.  With prior to Tony Lourey’s departure to head Health and Human Services in the Walz administration, the MN Senate was split 34-33, with Republican majority.    Governor Walz, the DFL House majority, and Tom Baak dreamed of picking off at least one Republican Senator to move their agenda.  More specifically, the DFL message to Republicans, especially in the suburbs, was that if you do not support our proposals, especially our top-ten bills, you will be vulnerable and we are coming after you in 2020.  That logic ended on Tuesday.
First, in losing the seat, the DFL goes from 33-34 to 32-35.  Picking off two Republicans is harder than one.  It was already going to be difficult to pick up one Republican vote–the GOP had strong ideological reasons to oppose the Walz-DFL agenda.  Why should they support it and give the Democrats victories?  The DFL promulgation of their top ten bills gave the Republicans their list of the top ten things to oppose.  Frustrate the DFL in their core agenda and then run in 2020 against it.
Second, losing this seat takes away the Democratic threat of 2020.  How so?  If Democrats planned to say to suburban Republican senators vote for our bills or else in 2020, Republicans can now say that we are coming after rural, Iron Range, or greater Minnesota Democrats in 2020.
Third, in losing a solidly DFL seat, it continues a nationwide pattern too seen in Minnesota where there is a big political sort going on.  Greater Minnesota and the Iron Range are becoming more Republican, including perhaps permanently shifting the Eighth Congressional District into the  GOP camp.
Finally, all of this questions the wisdom of Walz picking Tony Lourey for HHS and the DFL thinking a third generation of Lourey’s would do the trick.  Minnesota DFL politics has been dynastic for generations–think of the names Humphrey, Mondale, Freeman, and Klobuchar.  Times change and running on familial connections does not always cut it.
The special election loss portends a near fatal blow to the Democrats successfully get much of anything they want this session, and the 2020 electoral threat has been significantly undermined.  It is too early to say deadlock in the 2019 Legislative session or government shutdown, but it is not premature to declare that the Walz-DFL agenda died last Tuesday.