It Just Keeps Getting Dumber

Donald Trump's allies in Congress won't take "no" (or "he lost, get over it") for an answer. And so, with Rep. Louie Gohmert (R-TX) taking the lead, they have sued, of all people, Vice President Mike Pence.

With the electors already having met and cast their ballots, and with the Trump campaign having lost all but one of its many and varied lawsuits, Trump loyalists have decided that the weakest link left in the chain is the Vice President, specifically as he performs his ceremonial role in the counting of the electoral votes on Jan. 6. Pence and Donald Trump already had a chat about this, during which Pence made clear that he has no power to overturn the election results.

The Gohmert lawsuit seeks to change that. They are suing Pence in his official capacity as vice president, and are claiming that if he plays the role that the Electoral Count Act of 1887 would have him play (namely, opening the electoral certificates and announcing the totals), he will be violating the Constitution, since the entire Electoral Count Act is unconstitutional. Gohmert and his fellow plaintiffs are seeking two things from Judge Jeremy Kernodle (a Trump appointee): (1) for the Electoral Count Act to be set aside, and (2) for Kernodle to decree that the Vice President has the authority to determine, all by himself, whether to accept or reject a slate of electors.

It is hard to imagine that Kernodle, regardless of his politics, will allow this lawsuit to go forward. Does Gohmert—whose home state, recall, will be casting its EVs for Trump—even have standing to challenge the casting of other states' EVs? Do his co-plaintiffs? Is Pence even the appropriate target for this suit? And what about waiting until less than 10 days before the counting of ballots to file? Any one of those things could get the suit bounced.

If the complaint gets any consideration whatsoever, a judge is going to be loath to strike down a law that has functioned for close to 150 years, and that appears to be an entirely acceptable exercise of Congress' power to certify presidential elections. Even more problematic is the second demand being made by Gohmert & Co.; judges don't get to award new powers to elected officials by fiat. And if we check the text of the Constitution, here is what it says about the role of the vice president in counting electoral votes:

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.

This is such a low-level function that Pence doesn't even have to be there to do it. If he doesn't appear for any reason, then it would devolve upon the president pro tempore of the Senate, which is currently Sen. Chuck Grassley (R-IA). And if he can't do the job, Grassley can always hand it off to one of these:

The fellows who wrote the 12th Amendment were no fools, nor were the ones who wrote the Electoral Count Act of 1887. Neither group intended to put the ability to choose a president into a single person's hands, particularly a person who is sure to be highly partisan and highly interested in a particular outcome (including, quite possibly, they themselves being elected). By design, the VP's role is supposed to be entirely perfunctory, and to afford that person no power whatsoever to influence the results.

In short, this suit is going nowhere. Even if Jeremy Kernodle channels his inner Neomi Rao/Trevor McFadden, and gives the plaintiffs everything they want (highly unlikely), he'll just be overruled at the next level of the judiciary. Oh, and by the way, any legal wrangling will almost certainly be taking place after Joe Biden's victory has been affirmed by Congress, and very possibly after he's been inaugurated. No judge, even Rao/McFadden, is going to try to declare that the president isn't actually the president.

So, Team Trump is going to lose, and lose big. But the even bigger loser may well be Pence himself. If he resists the suit, then that means he lines up on the opposite side from the Trump fanatics, which will displease the base. If he does not resist the suit, then he is a party to an attempt to subvert a legal, democratically held election, which will displease moderates and independents. This does not mesh well with the VP's strategy of trying to fly under the radar and avoid taking sides prior to his 2024 presidential campaign. (Z)

House Passes Bill to Increase Payments to $2,000...

Speaking of putting Republicans between a rock and a hard place, the House, as expected, passed a bill on Monday that would increase the payments being made to each American from $600 up to $2,000, as Donald Trump requested. The measure passed 275-134, with Democrats voting "yea" by a 231-2 margin, joined by 44 Republicans.

The bill now heads to the Senate, where Majority Leader Mitch McConnell (R-KY) and his caucus end up on the short end of two distinct propositions. First, they don't particularly want a public squabble with Trump, especially in advance of the Georgia Senate runoffs. Second, playing the role of Scrooge when people are struggling is not usually a winner—once again, particularly in advance of the Georgia Senate elections. Presumably, Democratic challengers Raphael Warnock and Jon Ossoff already have commercials ready that say, "Senate Republicans had no problem handing out fat tax cuts to a bunch of fat cats; why not for people who are having trouble paying their rent?" At very least, they've already fired off tweets:

Georgians could have gotten $2,000 relief checks. You're only getting $600 — because @KLoeffler refused to fight for more.

— Reverend Raphael Warnock (@ReverendWarnock) December 28, 2020

I will vote for you to have a $2000 relief check.

David Perdue won’t.

— Jon Ossoff (@ossoff) December 26, 2020

If McConnell buries the bill in his desk drawer, and doesn't bring it up for a vote, that will give his caucus some protection, but not a lot, especially since Sens. David Perdue (R-GA) and Kelly Loeffler (R-GA) are going to be asked multiple times per day whether they support the $2,000 payment or not. (Z)

...And Also Overrides Trump's Veto of the Defense Bill

Before you interpret the above item as a sign that Donald Trump can still command the House to do his will, despite being a lame duck, you may want to tap the brakes. Not long after voting to support his request for larger relief checks, they voted to poke him in the eye, and to override his veto of the defense appropriations bill. The final vote, 327-88, wasn't close, and was not far off from the original vote, which was 335-78.

Indeed, if anything, Monday's votes suggest that the power of Trump is already seriously waning. Recall that, for example, he managed a 195-0-2 vote among House Republicans on the articles of impeachment. However, he was only able to get just 44 House Republicans to support the $2,000 payment, and fewer than 10 to flip their votes in support of his veto. Soon we will see how much pull he still has with the Senate, though the less intense Trump fanaticism that has been generally characteristic of that chamber does not bode well for him. If the Senate agrees on the veto override, it will be the first of Trump's presidency. (Z)

Biden: Department of Defense Is Dragging Its Feet

When Donald Trump dismissed then-Secretary of Defense Mark Esper with so little time left before Jan. 20, we (and everyone else) wondered what the point was in doing so. As it turns out, maybe it was to staff the Pentagon with Trump loyalists willing to make Joe Biden's life more difficult. Certainly, that is what is happening.

For the third time in as many Mondays, the President-elect shared publicly the issues he is having with the DoD. Two weeks ago, it was that his team never agreed to a "two-week pause" in intelligence briefings, despite Acting Secretary of Defense Christopher C. Miller's claims to the contrary. Last week, it was that the DoD was refusing to brief Team Biden on the cyberattacks. This week, it is that the Department is not being frank about deployments around the globe or about budget planning.

Every story has two sides, they say, but does that really apply here? Is there any possibility Biden is not telling the truth? What would be his motivation to lie here? In particular, if one party (among two) says "we did not agree to a two-week pause," then it means there was no agreement on a two-week pause. The President-elect observed, on Monday, that he and his team need to know everything so that there is no "window of confusion or catch-up that our adversaries may try to exploit." He's right about that, too. One can only hope that Miller & Co. put their big boy pants on, and start acting like adults and public servants, and not like part of Team Temper Tantrum. (Z)

What the President-elect Can Do To Improve Elections

Yesterday, we had an item on the conduct of elections, focusing in particular on security concerns, and on the things Congress could do to address those concerns. As we all know, Congress is not terribly functional these days, and Congressional Republicans in particular aren't too interested in making elections more secure. So, you should not hold your breath waiting for improvements to be implemented.

On the other hand, Joe Biden values free and fair elections, and has a handful of options at his disposal for helping on that front that don't require congressional approval. Here's a rundown:

• The Census: Donald Trump has, of course, politicized the census—in particular, pushing for non-citizens to be excluded from apportionment counts. This despite the fact that the Constitution draws no such distinction when it addresses apportionment. There is, of course, a pending legal case that could prohibit Trump's dictum from being followed by the Census Bureau. However, the legal case may be moot if the Bureau does not finish its work before Jan. 20, an outcome that looks more and more likely by the day. In that event, then canceling the Trump order will be among the first items of business once Biden takes office. Even if the Bureau does finish before Trump leaves office, Biden could very well instruct them to go back and redo the apportionment calculations.
  
  
• Registration: There are a number of states (mostly blue ones) that register people to vote whenever they interact with selected state agencies (like the DMV). Those states can also request that the offices of federal agencies (the VA, the SSA, the BIA, etc.) located within the state provide the same service, although it is currently at the discretion of local bureaucrats whether or not to comply. Biden could issue an executive order making it mandatory for federal agencies to work with states to register voters, whenever asked to do so. This would particularly aid in registering Native American voters, who are less likely to be registered than any other major ethnic group.
  
  
• The DoJ: This is a biggie. Not surprisingly, the Trump-era Dept. of Justice has had little interest in investigating (much less prosecuting) violations of the Voting Rights Act and other laws meant to guarantee citizens' right to vote. The new AG, in partnership with the new head of the Department's civil rights divisions, could change that.

It is fair to say that the odds of all three of these things happening are better than the odds of any one of the things on yesterday's list coming to pass. (Z)

Sanders Is Unhappy About Biden's Cabinet

Sen. Bernie Sanders (I-VT) was on ABC's "This Week" this week, and he expressed his disappointment with the cabinet officers Joe Biden has selected so far. "What I have said many, many times, is the progressive movement itself probably is 35 or 40 percent of the Democratic Coalition," declared the Senator. "And I believe that the progressive movement deserves seats in the Cabinet; that has not yet happened."

Sanders is right that the picks, so far, have had a very centrist tint. However, his complaint immediately raises two questions. The first is: How does he expect this to happen? Undoubtedly, Biden's personal preference is for centrists, because he is one himself. That said, the President-elect has demonstrated that he is willing to make certain that key factions within the party are recognized. He would surely be happy to name at least a couple of outspoken lefties if he thought he could get them past the Senate. But how? The case of Neera Tanden is instructive here. She's centrist enough that Sanders' supporters don't like her, but she's progressive enough that Senate Republicans are already lining up in opposition to her. This suggests that anyone who passes muster with the progressives can't get past Senate Republicans (with Blue Dog Democrats like Joe Manchin, D-WV, and Kyrsten Sinema, D-AZ, also a concern), while anyone who passes muster with Senate Republicans will not be acceptable to the progressives.

That brings us to the second question: Why is Sanders saying this publicly, right now? The only hope for a couple of lefty cabinet officials is if the Democrats win both of the Senate runoffs in Georgia (and then keep Manchin/Sinema on board). If the Senator's goal was to lobby Joe Biden, he could easily do that with a telephone call. When he goes on TV, by contrast, one has to assume his goal is to speak to the voters. But the dilemma is whether "Elect Jon Ossoff/Raphael Warnock, so we can drag the administration leftward" is more likely to motivate voters who think that sounds like a pretty good idea, or to motivate voters who think that sounds like a pretty bad idea. Which group, in Georgia, is larger? Surely it is the latter, given the centrist nature of the state. And so, it certainly looks like Sanders is shooting himself in the foot with his public kvetching.

We cannot help but notice that Biden has left certain cabinet slots, like Labor, unfilled, and that he only needs to hang on for another week to know the outcome of the Georgia runoffs. So, the President-elect may just have a plan here, whether Sanders sees it or not. (Z)

They Were Trump Before Trump, Part II: Andrew Jackson

Another entry in our series on Donald Trump-like figures from American history. Past entries:

• Samuel Adams, Pamphleteer and Politician

And now, we give you...Andrew Jackson.

What Makes Him Trump-like, in 25 Words or Less: He rose to power by appealing to working-class white men...and to their grievances.

Trump-like Quote: "I was born for a storm and a calm does not suit me." (1828)

The Rise: Jackson was born into poverty and was orphaned at 14, losing his father to a logging accident, his mother to cholera, his brother to heat exhaustion and his other brother to smallpox. The latter three deaths were directly attributable to the Revolutionary War (Jackson's brothers were soldiers, and his mother was a nurse), and so he developed a deep and abiding hatred for the British that would remain with him for the rest of his life.

After losing his entire immediate family, young Jackson lived with a series of friends and extended relatives, scraping together a meager education and trying his hand at various professions. He wasn't much of a clerk, or a saddle maker, or a teacher, but he eventually discovered the law. He would not have been well suited to practice in a big city like New York or Philadelphia, but frontier law was very much about force of personality and being able to think on one's feet, and so matched Jackson's skill set well. He also invested in land and slaves, and achieved considerable success as a planter.

Jackson was a well-known figure in Tennessee by the early 1800s, thanks to his business and legal careers, his service in various public offices, and his role as a co-founder of the city of Memphis. He came to national attention, however, during the War of 1812. Already a major general of volunteers in Tennessee (a position voted on by one's fellow soldiers), the future president was delighted to offer his services in a war against the hated British. He spent the conflict sometimes fighting the redcoats, sometimes fighting the Red Sticks (a sub-group of the Creek Tribe), and mixing in the occasional duel. Jackson bore up so well while living life in the saddle that his men began to refer to him as "Hickory," a nickname that stuck for the rest of his life. The General's crushing victory over the British at New Orleans came technically after the War of 1812 was over (news of the treaty was being carried back to the U.S. by ship), but was nonetheless celebrated by Americans for generations.

After the War of 1812, Jackson kept fighting, shifting his attentions to Seminole Indians in Florida, and often skirting the line between what was legal and what was not. He served as territorial governor of Florida after it was acquired by the United States (1821), and then as a U.S. senator from Tennessee (1823-25). Like nearly every senator, then and now, Jackson looked in the mirror each morning and saw a future president. And so, he threw his hat into the ring for the presidential election of 1824. In that election, Jackson collected more popular votes and more electoral votes than any other candidate, but he did not win a majority, which meant a contingent election in the House. There, with Speaker Henry Clay (NR-KY) dominating the proceedings, John Quincy Adams was chosen as the next president. When Adams appointed Clay as Secretary of State (back then, the stepping-stone to the presidency) soon thereafter, Jackson and his supporters howled that a "corrupt bargain" had been struck.

Glory Days: Not long after Adams assumed the presidency, Jackson quit the Senate, determined to spend the next four years making sure he did not get cheated out of the presidency again. He traveled around the country, particularly the South, meeting with local leaders and giving speeches to adoring crowds of working-class white men. Assisted by Martin Van Buren and others, Jackson also rebuilt the moribund Democratic-Republican Party into the modern Democratic Party. Noting that part of the problem in 1824 was that there were four serious presidential candidates, making it nearly impossible for any one of them to claim a majority, Jackson effectively invented the nominating convention, so that he would be Adams' sole and unquestioned opponent in their 1828 rematch. That election was very ugly, and Jackson felt the slurs directed at his wife Rachel contributed to her death in December of that year. However, "Old Hickory," as the 61-year-old president was now known, won easily. His inaugural celebration, during which the doors to "The People's House" were thrown open to all comers, turned into a stampede, and Jackson was forced to flee through one of the windows of the White House.

When looking at Jackson's presidency, there are three themes that stand out. The first, as noted already, is finger-pointing. The President told his white, working-class base that the Second Bank of the United States was to blame for their problems, and that he would destroy the bank (which he did). He told his base that he understood their anger at Native Americans who "selfishly" insisted on holding onto land needed by the white man, and that he would seize that land (which he, and later Van Buren, did). Jackson also engaged in all manner of personal squabbles, fighting with his vice president (John C. Calhoun), his cabinet, the leaders of Congress, and anyone else who offended him. The President managed to make it through his entire eight-year term without fighting a duel, which was surely a record for him, but he did beat the tar out of a would-be assassin whose guns misfired.

The second theme of Jackson's presidency is, for lack of a better term, "L'état, c'est moi." He was the first president to truly embrace the "spoils system;" the primary qualification for appointment to a position under Jackson was loyalty to Jackson, as opposed to competence. He did fill his cabinet with non-loyalists, at least originally, but that was pure politics in order to keep the Democratic Party unified. Jackson didn't actually much care what his cabinet had to say, and was the first president to rely very openly on a cadre of non-appointed advisers, who were known collectively as his "kitchen cabinet." The President also disagreed with his predecessors that the legislative branch was paramount, and vigorously asserted the primacy of the executive branch, including issuing more vetoes than the first six presidents combined. Jackson was perfectly willing to trample on the law when it suited his needs, whether that meant ignoring Supreme Court decisions, or else using government funds as he saw fit, regardless of Congress' wishes.

The final theme of the Jackson presidency is inconsistency. Old Hickory did not follow a clear and cohesive political program, per se; instead, he went with his gut. When John C. Calhoun instigated the nullification crisis of 1832, with South Carolina threatening to withhold payment of a tariff that residents felt was too high, Jackson responded as a nationalist, and threatened to hang the leaders of nullification (and everyone knew he meant Calhoun) from the highest tree he could find. On the other hand, when Southerners began interfering with the U.S. mail, so as to halt the delivery of anti-slavery propaganda, Jackson responded as a Southerner and slave owner and did nothing. He thought slavery to be the natural condition of Black Americans, and he was greatly offended by abolitionist agitators. You wouldn't think that a president would allow the mail to be politicized like that, in service of their own personal needs, but it happened.

Afterwards: Jackson handed the presidency off to his friend and protégé Van Buren, and thereafter was an outspoken advocate for various political causes (like annexation of Texas), albeit with limited influence. Part of the problem was that the former president was occupied by putting his business affairs back in order as well as by his poor health. And part of the problem is that Jackson was (correctly) blamed for the Panic of 1837, which wrecked Van Buren's presidency and paved the way for the opposition Whig Party to claim the White House in 1840. Old Hickory (who was Very Old Hickory by this time) did help give a boost to the successful presidential campaign of "Young Hickory" James K. Polk in 1844, but that was effectively the end of Jackson's public career, and he died about six months after Polk was inaugurated.

There are few presidents who are more controversial than Jackson. He so dominated his time that the Jacksonian Era is the only period in American history to be named after a person. And the popularity he enjoyed, in life and in death, as a military hero and workingman's president is reflected in vast numbers of statues, numerous fawning biographies (two of which won the Pulitzer), and the placement of Jackson's picture on the $20 bill, among other honors. On the other hand, there has always been an undercurrent of criticism based on Jackson's corrupt and/or dictatorial behaviors, his unwise fiscal policies, and his treatment of Native Americans, Black Americans, and other minority groups. Today, that undercurrent has grown into something of a tsunami, with the result that Jackson's reputation has declined significantly in the last 10-20 years. He still gets credit for many of his accomplishments, but the days where he was ranked with George Washington and Abraham Lincoln are over.

Next up: Henry Ward Beecher. (Z)

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