Saturday Q&A

The Q&A isn't Trump-free yet, but he's already shrinking in significance.

Q: Can you explain this stand-off between Senate Minority Leader Mitch McConnell (D-KY) and Senate Majority Leader Chuck Schumer (D-NY)? If the Democrats have the majority, why does Schumer need to get McConnell to agree to anything? R.S., San Mateo, CA

Q: What happens if the Senate never reaches an agreement on its organizing resolution? M.H., Chicago, IL

A: The organizing resolution can be filibustered, which means that McConnell and his caucus can stop it if they choose to do so. As a general rule, passage of the organizing resolution is pro forma, and the minority party does not threaten a filibuster. But McConnell, of course, is notoriously shameless about these things. He is posturing as if the 50-50 split somehow gives him special leverage/entitlement, but the truth is that he has the exact same leverage right now as he would if it were a 55-45 split, or even a 59-41 split.

Obviously, the Senate needs to be able to conduct business, and so an organizing resolution will be agreed to sooner or later, likely sooner. Probably what will happen is that either Schumer or McConnell will blink, and agree to what the other is proposing. It is somewhat unlikely that Schumer will be that person, however, because: (1) he has the upper hand, and (2) McConnell's main demand, namely a promise to guarantee the survival of the filibuster, is both unreasonable and unenforceable.

The other possibility is that, in the failure to resolve the impasse, Senate Democrats invoke the nuclear option and abolish the filibuster, either for organizing resolutions/Senate rules, or for everything. It's possible that this is what McConnell actually wants; if he thinks that the filibuster is dead anyhow, this would allow him to say, "See! Those Democrats wasted no time in taking a hammer to Senate tradition once they were in power!" If this is his thinking, he may be overlooking the fact that the Democrats will be able to say: "See! We were left with no choice but to abolish the filibuster; we literally couldn't even begin business because the Republicans were obstructing us."

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Q: Instead of totally scrapping the filibuster, could Senate Democrats lower the threshold from 60 votes needed for cloture down to, say, 55 votes (or 50 plus whatever number of Republican Senators they think might occasionally play nicely)? Why was 60 set as the number needed for cloture in the first place? Would lowering the threshold reduce the endless gridlock? E.W. in Skaneateles, NY

A: It's certainly possible; the filibuster used to require a two-thirds vote to kill, and it was lowered to 60 members, rather than a fractional number. It certainly could be lowered again, to 55.

As to gridlock, we don't think it would help all that much. Both parties are very unified these days, such that getting one or two senators to cross the aisle is almost as tough as getting 10 or 20.

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Q: Is there a way to know how many times each party has filibustered the other by year? S.K., Washington, DC

A: Sure. The Senate maintains a list of all filibuster motions, cloture votes, and cloture invocations here. Since only the minority party filibusters, as a general tule, it's not too hard to turn that into a pretty graph, broken down by party, like this one from FiveThirtyEight:

As you can see, both parties have done their part to encourage abuse of the filibuster.

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Q: Imagine the filibuster is erased. Would its lack essentially remove the differences between the House and Senate chambers, as I've read many pundits wring their hands? What happens then to the notion of the Senate as a cooling-off place for sensible, time-consuming, intelligent debate? D.M., Boston, MA

A: No. The Senate performed its expected role for 150 years before the filibuster became somewhat common. The most important things that make the Senate different from the House are: (1) senators represent entire states, and thus larger and more diverse constituencies than do representatives, and (2) senators only face voters once every six years rather than every other year. These two things both make senators less inclined toward extremism, and less likely to engage in stunts to please voters. That said, as Sens. Josh Hawley (R-MO) and Ted Cruz (R-TX) have recently demonstrated, those tendencies are general, not absolute.

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Q: Since the Senate Parliamentarian is appointed by and serves at the pleasure of the Senate Majority Leader, and her job is to give advice to the Presiding Officer, who can ignore it, is it really up to her to decide? Can't the Presiding Officer, with the concurrence of the Senate majority, just include whatever they want? Or have the Senate Parliamentarian replaced with someone more amenable to what they want to do? S.C., Mountain View, CA

A: These things are certainly possible, but having—and listening to—a well-respected parliamentarian serves to keep the Senate more collegial. Further, and probably more importantly, such a person acts somewhat like a judge. If they give the thumbs up, not only is the maneuver probably legal, but their thumbs up would become powerful supporting evidence in a potential court case. On the other hand, if the Democrats fire Elizabeth MacDonough and replace her with a shill that says, "Sure you can use budget reconciliation to curtail the Second Amendment!" then lots of people would sue, and those suits would be successful. Might as well let the parliamentarian be the first legitimate test of legality, so as to spare everyone needless embarrassment and wasted time.

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Q: Has Donald Trump ever talked about his duty? Him having a duty to anything or anyone? Him having a duty to do anything? I cannot remember him using the word. E.S., Maine, NY

A: He has sometimes used that word, but it's invariably in speeches that were written by other people, and in reference to individuals who are not him. For example, in 2016 he said, "Hillary Clinton has betrayed her duty to the people," and in 2019 he said "[Queen Elizabeth II] has embodied the spirit of dignity, duty, and patriotism that beats proudly in every British heart." You're right that "duty" is neither a part of his regular vocabulary, nor his way of thinking about himself.

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Q: Why do Donald Trump's children and some of his ex-staffers (like Mark Meadows and Steven Mnuchin) still get Secret Service protection? I understand about Barron Trump, but why can't the rest pay for their own protection? T.W., Wellsville, OH

A: There are two possible explanations: (1) it was extended at the discretion of the USSS due to credible threats against them, or (2) it was extended on the orders of Trump while he was still president. The USSS does not comment on its protective details, so we don't know which of these it is. Joe Biden could reverse the decision, regardless of the reason it was made, but he's unlikely to do so because it would be bad optics. It is improbable that the protection will be extended beyond July 20 (i.e., 6 months), excepting for Donald and Melania Trump (who get lifetime protection) and Barron Trump (who gets protection until he's 16).

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Q: Now that Donald Trump is no longer president, does he have to pay his impeachment attorneys out of his own pocket? Or is there a public impeachment defender? P.G., Denver, CO

A: As this is not a criminal trial, Trump has no right to a publicly-funded defense. He could plausibly ask that the White House counsel defend him, since he's being impeached for behaviors undertaken in his capacity as president. And Joe Biden might even grant that request. However, it would be Biden's White House Counsel (Dana Remus) who would do the job, and not Trump's (Pat Cipollone). As a general rule, being defended by an attorney who has no loyalty to you and no particular enthusiasm for your cause is not a good idea, even if they come free of charge.

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Q: I read that Albert Watkins, the lawyer for the Q Shaman (Jacob Anthony Chansley), claims that his client was coerced into making regrettable decisions by listening to the rhetoric of the ex-president and his allies. Isn't this argument simply the most recent reincarnation of the Twinkie Defense? B.B., St. Louis, MO

A: First of all, we must note that the Twinkie Defense is a myth. Or, at very least, a misunderstanding. When Dan White's lawyer brought that up after White killed San Francisco Mayor George Moscone and Supervisor Harvey Milk, it was not as an excuse for White's behavior. Instead, it was as evidence that the ultra-health-conscious White was not in his right mind, since he would never have eaten two dozen Twinkies under normal circumstances. Put another way, the Twinkies were not presented as a cause of the state of mind, but instead additional evidence of the state of mind, a state of mind that also led White to commit murder.

That said, if we use "Twinkie Defense" (incorrectly) to mean "trying to avoid responsibility for one's actions," then you are not too far off the mark. And under normal circumstances, blaming someone else for one's misdeeds is a pretty weak legal defense, unless you're mentally ill (e.g., the Son of Sam claiming a dog told him to kill). Under these circumstances, by contrast, it might fly, because the president is a unique individual with distinctive authorities, including the authority to command citizens to take various actions.

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Q: Is there any precedent for revoking U.S. citizenship of those people who took up arms against the government or incited an insurrection. I would like to see such individuals become "a man without a country." C.H., Boalsburg, PA

A: If someone is a naturalized citizen, there is a process for revoking that citizenship if they have had it for less than 5 years, but it's long and involved and is rarely done (a few times per year). If someone is a natural-born citizen, there is no way for them to lose their citizenship unless they choose to renounce it.

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Q: What kind of information/intelligence are former presidents and vice presidents entitled to and what can be done to put reasonable restrictions in place? I have one particular past president in mind, by the way. M.L., Havertown, PA

A: That is at the discretion of the sitting president, and is normally done so the sitting president can consult with his predecessors for insight and advice. Given that Joe Biden does not trust Donald Trump, and has no intention of asking for his advice on anything, undoubtedly Trump will be cut off from the flow of intelligence. Not that he ever paid attention to the President's Daily Briefing anyhow.

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Q: Looking at all the negative thinking from historians on Trump's legacy, are there any credible historians who are offering a positive interpretation of his presidency? What are they saying? M.N., Madison, WI

A: When we wrote the item about historians' views of Trump, we looked around a bit for a positive view, but didn't find one. The closest was a few historians who said things like "Well, if Trump's judicial picks perform well, it may raise his standing eventually." Hardly a rousing endorsement.

It is not terribly surprising that we could not find a positive assessment because, regardless of their political leanings, historians and political scientists are trained to think in a certain way, one rooted in evidence. The best evidence is what actually happened, but since we don't have a time machine, we do not have such evidence for Trump's long-term reputation. That leaves us with the next best option, which is comparison to past presidents. And because Trump did so many things that seem to be apparently negative/unsuccessful, at least so far, there is just no way to build an evidentiary case of this sort for his being a good president. Recall that when the members of the American Political Science Association put together a ranking of U.S. presidents last year, the scholars who identify as Democrats ranked Trump 44th, and the ones who identify as Republicans ranked him...40th.

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Q: With Donald Trump's refusal to attend Joe Biden's inauguration in mind, which inauguration had the most former presidents in attendance? C.T., Liverpool, UK

A: There have been five presidential inaugurals where five ex-presidents were still living, but in each of those cases, at least one of them skipped the ceremony. Namely:

1. In 1861 (Lincoln I), Buchanan attended but Van Buren, Fillmore, Tyler and Pierce did not (Total: 1)
2. In 1993 (Clinton I), Carter and Bush 41 attended but Nixon, Ford, and Reagan did not (Total: 2)
3. In 2001 (Bush 43 I), Carter, Bush 41, and Clinton attended but Ford and Reagan did not (Total: 3)
4. In 2017 (Trump), Carter, Clinton, Bush 43, and Obama attended but Bush 41 did not (Total: 4)
5. In 2021 (Biden), Clinton, Bush 43, and Obama attended but Carter and Trump did not (Total: 3)

That means that Trump's inauguration comes out on top. However—and don't tell him this—he's actually tied with Barack Obama's first inauguration. There were only four living ex-presidents then (Carter, Bush 41, Clinton, and Bush 43), but they all showed up.

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Q: I assume that Joe Biden became president when he took the oath of office a shade bit before noon ET. But could he have taken the oath in private at 12:01 ET, thus preventing any last-second shenanigans by Donald Trump? Normally, this would not matter, but these days... T.J.R., Metuchen, NJ

A: By the terms of the 20th Amendment, Joe Biden became president at noon on Jan. 20. By the terms of Article II, he had to take the oath to be able to exercise the powers of the office. In other words, both conditions must be met for him to fully assume his office.

Biden could have taken the oath 10 minutes early (as he did), or 10 hours, or 10 days, or 10 months, or 10 years, and it would not have given him any additional authority until Jan. 20 at noon arrived. Alternatively, he could have skipped the oath entirely, but then he would have had the title of president, and would have gotten USSS protection, but would have had no authority to sign laws/XOs, order a nuclear strike, fire federal employees, etc.

It is possible to game the system, but only if everyone involved wants that to happen. And in 1916, it almost did happen. Woodrow Wilson foresaw (correctly) that the U.S. would be drawn into World War I by spring of 1917 (back when Mar. 4 was Inauguration Day). There was also a strong possibility he would lose the election of 1916 (which proved to be very close). If Wilson had lost, he already had an agreement with his VP (Thomas Marshall) and Secretary of State (Robert Lansing) that both would resign. Then, Wilson would have appointed the President-elect (Charles Evans Hughes, if he had won) to the Secretaryship of State (then second in the line of succession). Finally, Wilson would have resigned, thus allowing Hughes to assume the presidency in November 1916 rather than March 1917.

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Q: Is it just me, or were there two small errors during Kamala Harris's swearing in? I believe Justice Sotomayor omitted an "and" (after "evasion"), which was then omitted by Harris. And then Harris changed "on which" to "upon which." I remember that there was a kerfuffle about Barack Obama's swearing in. Was that because the mistake was more pronounced? Is it likely that anyone will contend that Harris isn't really the VP because her oath wasn't verbalized with absolute perfection? Should the oath be re-administered just to be on the safe side? C.A.G., Athens, GA

A: We heard that, too.

There was a kerfuffle about Obama's oath-taking, and it got a lot of media attention (especially right-wing media attention), so he and John Roberts agreed to do it again. It probably wasn't necessary (the courts have never really explored this issue), but they both figured "better safe than sorry." Unfortunately, this gave rise to conspiracy theories that Obama deliberately flubbed the oath so that he could swear his "real" oath on a Quran without people knowing.

Given that the Harris flubs were less obvious and got zero attention, and given that redoing the oath is almost certainly not necessary, and given what happened to Obama, we doubt there will be a second administration of the VP oath.

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Q: How and why did oaths and pledges become such an important part of American culture?

I am Danish, and we have nothing like an oath of office, a pledge of allegiance, swearing in of witnesses, etc. And I cannot think of any other country that uses oaths and pledges to the extent that the U.S. does. T.A., Odense, Denmark

A: To start, the founders were Englishmen. And in medieval England, oaths were an important way of keeping the feudal system running properly, and making sure vassals stayed loyal to their lords. This was eventually incorporated into the English legal system, where oaths were an important way of pressuring both witnesses and officers of the court to be truthful.

At the same time, the founders were also scholars of ancient history who consciously tried to emulate the ancient Greeks. And the ancient Greeks, recognizing that democracy relies on good behavior from most or all citizens, felt oaths were an important tool in maintaining that system of government. "It is the oath which holds democracy together," wrote the ancient Greek scribe Lycurgus of Athens.

So, it should not surprise us that the founders were very oath-inclined. Meanwhile, Americans tend to place a high value on tradition in general, and on the traditions embodied in the Constitution in particular, so it is not unexpected that the founders' fondness for oath-taking has lived on to the present day.

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Q: At 12:01 on Wednesday, Donald Trump's term expired. Joe Biden was sworn in, and Kamala Harris was, as well. Speaker Nancy Pelosi (D-CA) was in attendance as was President Pro Tempore Chuck Grassley. At that moment, there was no cabinet confirmed. If something horrible happened at the inauguration, and Biden, Harris, Pelosi and Grassley were all killed, who would assume the presidency? B.T., Boston, MA

A: As it turns out—and we only learned this in the past week—it's up to the previous administration to choose a designated survivor for the inauguration. Barack Obama, for example, chose outgoing DHS Secretary Jeh Johnson, though Donald Trump insisted that a Republican be added, and so then-Senate Pro Tempore Chuck Grassley (R-IA) was also included.

Biden might have made a similar request but, of course, he and Trump never met and so could not have that conversation. And, until noon on Wednesday, Biden was in no position to insist. It is unclear which person Trump chose or if, out of petulance, he chose nobody at all. Secretary of State Mike Pompeo was not present at the inauguration, and had not yet resigned, so he would have been the de facto designated survivor if the inauguration got nuked or something.

It does not particularly matter if the designated survivor is of a different party from the president-elect, at least under the circumstances that were in effect this week. Should the worst have come to pass, Pompeo would only have become acting president, and would have been responsible for picking a new VP. If he tried to get sneaky, and pick a Republican, that would be politically disastrous. Plus, that person would never be approved by the still-Democratic-controlled House.

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Q: In the event of Joe Biden's/Kamala Harris' sudden demise, who do you think would be the top candidates for Acting President Nancy Pelosi to pick to be confirmed as VP, and then 2 seconds later be given the oath for the presidency? J.B., Denver, CO

A: We operate under the assumption that Biden/Harris died under tragic circumstances. And there is something of a tradition in American politics that if a politician dies like that, you appoint their spouse as the best person to carry on their legacy. So, there's a good chance that, assuming she was not also victimized by the tragic occurrence that killed Biden/Harris, Dr. Jill Biden would be the pick.

Alternatively, there is also something of a tradition of picking the person's top friend/advisor/disciple to replace them under these circumstances. If so, then that would be Ted Kaufman, who would be a placeholder president (just as he was a placeholder senator when Biden resigned to become vice president).

It is also very plausible that, in the face of a national tragedy, Pelosi would argue that a firm hand is needed at the wheel, and that a national crisis is not the time for on-the-job learning. So, she could pick Barack Obama. He might agree to serve for a year or so, until the pieces were picked up, or the argument might be made (and litigated in court) that Obama is merely forbidden from running for election again, but not from succeeding to the presidency in this manner. Alternatively, if Obama is unwilling, or if choosing him seems too much a constitutional stretch, it could be John Kerry.

If Pelosi decides she wants someone who is up for the job, but who also has a good chance of getting reelected in 2024, she might go with a current or former governor of a big state. Texas doesn't elect Democrats these days, and Florida rarely does. Gavin Newsom is a bit damaged right now, and Jerry Brown is rather long in the tooth, so that leaves California out. J.B. Pritzker has been on the job for too short a time, Rod Blagojevich is a crook, and Pat Quinn lost reelection in a blue state, so that eliminates Illinois, and kinda leaves us with Gov. Andrew Cuomo (D-NY). Not a flawless candidate, but probably the best the blue team has in terms of "ready to serve as chief executive over a large populace."

Finally, if Pelosi looks to Congress, she would probably choose one of the folks who ran for president in 2020 and came up short. Maybe Sen. Amy Klobuchar (DFL-MN) or Sen. Cory Booker (D-NJ)?

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Q: Why did Kamala Harris wait so long to resign her Senate seat? Doesn't this put Sen. Alejandro Padilla (D-CA) at a seniority disadvantage? D.M., Delray Beach, FL

A: In the House, that's something of an issue, because there are 30-50 freshman representatives every term. In the Senate, it's less of an issue. Seniority matters a little bit when it comes to office space, but being #88 on the list versus #92 doesn't affect things all that much. It also matters in terms of committee seniority, but that's only an intra-party issue. And so, the net effect of making Padilla wait is that if he and Sen. John Hickenlooper (D-CO) end up on the same committee, Hickenlooper will have first dibs on being ranking member/chair. The only other Democrat to join the Senate between the election and Padilla's swearing-in was Sen. Mark Kelly (AZ), and he would have had seniority over Padilla under any circumstance because the election Kelly won was a special election.

Harris waited so long to resign because she wanted to be available to participate in close votes, and also to retain her Judiciary Committee seat (and her right to ask questions). Although Barack Obama resigned his Senate seat shortly after being elected president, then VP-elect Joe Biden actually resigned about a week before commencing his term, just as Harris did.

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Q: In the likely event that Joe Biden dies or steps down from office because of illness before 2025, Kamala Harris can't run in 2028, right? M.K., New York, NY

A: First of all, we would like to push back against your premise. An average 78-year-old man in the U.S., right now, has a life expectancy of about 10 years, as well as an 80% chance of living at least four more years. Biden has just assumed a very stressful job, it is true, but he is also an unusually fit 78-year-old, plus he has access to excellent healthcare. We also see no reason to think he will step down early.

In any event, a person is limited to 10 years as president. So, if Kamala Harris succeeds to the presidency on or after Jan. 21, 2023, she would be eligible to run for reelection twice. If she succeeded prior to that, she could only run for reelection once.

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Q: Besides the rhetoric in his inaugural address and during other public appearances that called for "unity," when has Joe Biden tried "to reach across the aisle?" Certainly, his cabinet picks, executive orders, and proposed COVID-19 relief package hardly smack of bipartisanship. J.K., Short Hills, NJ

A: To start, although this word does not appear in your question, it has already become a talking point on the right (both among talking heads and among politicians) that Biden is being "divisive" by pursuing a Democratic agenda. That's not divisive, that's governing. He has a right and a responsibility to pursue the policy items he made a part of his campaign. Elections have consequences.

Divisive, by contrast, is when a president (or other leader) pursues a political program by explicitly pitting people against each other. Donald Trump, of course, spent four years doing this. But "welfare queens" and Willie Horton and George W. Bush's anti-gay-marriage ballot propositions in 2004 are also examples. There are Democratic examples, too, but they require going back considerably further into the past.

Moving on to your specific question, Biden has only been president for about 60 hours as we write this. Substantive reaching across the aisle, in such a short time, is rather implausible. Mostly what he can offer at this point is words, which he has done. It is a bit of a surprise he did not add a Republican to his cabinet, but we also don't know (yet) the behind-the-scenes maneuvering that went on. Maybe he tried, and none were willing to accept his offer. That said, the FBI Director is a near-cabinet-level post, and Biden is keeping Republican Chris Wray.

And finally, unity is a two-way street. Thus far, Republicans—including the alleged moderates, like Sens. Mitt Romney (R-UT) and Susan Collins (R-ME)—have spent much oxygen pushing back against, and complaining about, Biden. They have spent zero oxygen talking about what things they are willing to work with him on. If they are not willing to meet him roughly halfway, that is on them, and not on him.

In sum, it is far too early to reach conclusions, especially if those conclusions are based on "How dare Biden keep some of his campaign promises!" The President says he's interested in reaching across the aisle, and congressional Republicans say they are, too. We should all keep an eye on these folks, and see who makes an actual effort and who does not.

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Q: You recently wrote about the difficulty of firing a civil service employee (as opposed to a political appointee), and suggested that Trump loyalists may be hard to remove. Can you provide more details about what these protections actually cover? D.T., San Jose, CA

A: Broadly speaking, if someone is to be fired, there are two ways to do it: (1) with cause, if you can go before a review board and prove they deserve to be fired (usually after having failed to heed several "needs improvement" warnings), or (2) if their job is eliminated. The latter is quite rare, and can't be accomplished by trickery like saying "We're getting rid of the NSA General Counsel and replacing it with the NSA Legal Coordinator."

When it comes to tricks for declawing a Trump appointee, it is not possible to reduce them in rank (most will be a GS-15) or pay. However, it is legal to change their duties, to require them to relocate, or to deny them a security clearance (with cause). So, any or all of these tricks can be used to put the screws to an unwanted civil servant. It's also plausible to split a job into two. Something along the lines of "There will now be one NSA General Counsel for matters involving the Americas, Europe, Asia, Africa, and Australia, and a second NSA General Counsel for matters involving Antarctica."

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Q: When reading your post about the Trump loyalists that are making life difficult for Biden, I was struck by the similarities with the "Deep State" narrative from Trump supporters. Does one have merit over the other based on any evidence? Or are they both spin based on perspective? P.M., Somerville, MA

A: It very much depends on what you mean by "Deep State." If you mean that the bureaucracy sometimes pushes back against the president for various reasons, then every president has dealt with a deep state.

Alternatively, if you mean more specifically that some appointees of a president linger, and are less-than-enthusiastic about implementing the next president's policies, then once again, every president has dealt with a deep state.

However, what Trump supporters meant by "Deep State" is that there was a cabal of Obama/Clinton people in the bureaucracy who were conspiring with one another (across departments), as well as with Obama/Clinton/other Democratic leaders, in order to frustrate Trump and his agenda. There is no evidence that this actually happened.

By contrast, it is at least possible that Trump tried to build his own Deep State on his way out the door. First, because he, and the sort of people he attracts, are kinda the type to do something like that. Second, because his attempts to stick loyalists in key positions at the last minute don't make a lot of sense unless he wants them to act as moles for him. This is not proof, but it's a possibility to be aware of and vigilant about.

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Q: Assuming we had a married president with a same-sex partner, what do you think their partner would be known as?

For example, if we had a gay male president, his husband wouldn't be the called the 'First Gentleman' because the president himself would be the senior-most gentleman. S.J., Taipei, Taiwan

A: "First Gentleman" does not necessarily mean "most prominent gentleman," so it's possible that would still work. After all, the first officer on a ship still ranks below the captain. That said, our guess is that if Pete Buttigieg is elected president, then Chasten Buttigieg will be known as the First Spouse.

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Q: The Constitution grants the Congress the right to declare the war, but only the president has the power to launch the nuclear missiles. Are these two facts not incongruent? L.M.S., Harbin, China

A: Not really. On a philosophical/legal level, declaring war is a very formal maneuver that comes with a whole host of domestic and geopolitical implications. For example, once war is formally declared, the Geneva Conventions must be observed, and the state of war can only be halted by one side or the other suing for peace. By contrast, presidents often initiate military actions that fall short of a formal war, whether it's the invasion of Grenada, or intervention in Kosovo, or the killing of Osama bin Laden. Ordering a nuclear strike is a particularly aggressive use of power, and would probably lead to a declaration of war, but is still within the realm of the normal prerogatives exercised by presidents.

Meanwhile, as a practical matter, even if you do find these facts to be incongruent, it is simply not possible to gather the Congress and have them conduct some sort of vote if the nukes are on their way and arriving in 20 minutes. It's necessary to vest the power in one individual, in case a quick response is required.

And finally, let us reiterate that just because the president orders a nuclear strike doesn't mean one will actually be launched. If Joe Biden were to try to nuke Canada tomorrow, so as to forestall their imminent invasion and takeover, he would have to provide some explanation to the general who would actually carry out the order. And if the justification was not satisfactory, the general would advise him that the order is illegal. If Biden insisted, the general would resign, leaving the chain of command broken and a launch impossible.

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Q: What do you think the likelihood is that one or more states begin openly ignoring Supreme Court decisions some time in the next ten years? M.W., Charlotte, NC

A: We've got news: They do this all the time. Red states pass laws limiting abortion rights. Blue states pass laws restricting gun rights. Then they sit back and wait to see if anyone sues and, if they do, what SCOTUS says.

Further, SCOTUS decisions only matter if they are enforced, which depends on buy-in from the person in the White House. If the president is unwilling to put states' feet to the fire when those states rebel, then SCOTUS decisions don't matter.

This is why the new "gerrymandered" Court has to tread at least somewhat lightly. If they go too far-right in their decisions, then they'll pointedly be ignored by the Californias and the New Yorks.

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Q: In your discussion of quid pro quo pardons, I was expecting something about pardons for sale. Could you expand on that? D.R., Anaktuvuk Pass, AK

A: On its face, selling pardons is legal, because the Constitution does not forbid it.

In reality, assuming the bribe could be proven, it is likely that such a pardon would be invalidated, since the emoluments clause clearly indicates that the founders did not want the president profiting from his high office. And if it was not invalidated, then the receiving of the pardon itself might be charged as a post-pardon crime (conspiracy, or fraud) and thus not itself covered by the pardon.

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Q: "Ukraine Mobilier"? Please explain the use of this fairly obscure term, where/what it derives from, and what it means? C.L., Seattle, WA

A: So many scandals have had "-gate" appended to them (see here for a list) that it's become something of a cliché. So quite often, instead of describing the Donald Trump influence peddling scandal as Ukrainegate, we instead append the end portion of some other famous scandal. Hence, Ukraine Mobilier, Ukraineyola, Ukraine Affair, Ukrainepot Dome, etc.

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Q: The question last week about the worst presidents had me thinking about how their successors are viewed. It seems that good and great presidents achieve that status partly because of the contrast with their immediate predecessors. Abraham Lincoln was a great president, of course, but he seems even more so because of how bad James Buchanan was. The same dynamic works with FDR and Herbert Hoover. Ronald Reagan's presidency looks better because Jimmy Carter was considered ineffectual, Bill Clinton's presidency looks better because of George H.W. Bush, and Barack Obama's legacy benefits from George W. Bush's disastrous presidency. That being the case, do you think Joe Biden's presidency, even if it turns out to be just average, will look great(er) to future historians because it will be measured against Donald Trump's clown show? M.B., San Antonio, TX

A: There is some of that effect, but it fades the further back in time that we go. People, even professional scholars, do not especially judge someone like Thomas Jefferson in comparison to John Adams or James Monroe.

We would suggest that the main reason that very good and very bad presidents tend to be grouped together is that it takes special circumstances (a war, a major depression, a highly divided populace) for a very good or a very bad president to be possible. Those who rise to the circumstances do well in historical memory. Those who do not, do not. And there are certainly examples of a president who is regarded as a stinker being followed by another one who is regarded as a stinker (Franklin Pierce and James Buchanan, Ulysses S. Grant and Rutherford B. Hayes, etc.), or a president who is regarded as a pretty good one being followed by another pretty good one (William McKinley and Theodore Roosevelt, FDR and Harry S. Truman, etc.).

So, when it comes to Biden's reputation, he'll get a boost from being "not Trump." Heck, he may even get a Nobel out of it; it worked for Obama. But largely, if he is to be remembered as great or near great, Biden will have to earn it. Which, given the challenges he faces, is at least a possibility. There is much in common between his circumstances and those of TR—no major war, but a society bitterly divided by all sorts of social problems, as well as a less-than-forthright media establishment.

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Q: In the past, you and other political sites have mentioned that the end of the Fairness Doctrine in 1987 led to the rise of talk radio and Fox News, among others. Is it possible for the Fairness Doctrine to be re-established now in the modern era? C.P., Silver Spring, MD

A: To start, you are right that the end of the Fairness Doctrine allowed for the rise of right-wing talk radio, with Rush Limbaugh being the first to really seize upon the situation. However, it was only indirectly responsible for the rise of Fox News, in that the success of right-wing talk radio suggested there was money in a right-wing cable news station.

It is highly improbable that the re-establishment of the Fairness Doctrine would help with the problems of misinformation, propagandizing, etc. that we see today. The only reason the Doctrine passed legal muster (specifically, the First Amendment's protections of free political speech) was that it applied to content delivered over government-owned broadcast frequencies (AM, FM, VHF, UHF). It did not apply to cable, and would not apply to anything online or streaming, particularly if that content's origin was in another country. And so, it would be non-applicable to Fox News, OAN, Newsmax, Breitbart, The Daily Wire, InfoWars, The Blaze, etc.

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Q: On Inauguration Day, I was reviewing the list of vice presidents, and I was struck by the frequent notation "office vacant" (a total of eighteen times). Some gaps are certainly unavoidable, as when a president's unexpected death required the immediate elevation of the sitting VP to the Oval Office, and it might take several weeks/months to fill the vacant vice presidency. But some of the vacancies stretched over a period of years (the longest one was almost six years, from 1850 to 1857). What caused these huge gaps, and why did there seem to be so little urgency to fill the second highest office in the land? More importantly, what happened to the line of succession when there wasn't a #2 in office? D.A., Ada, MI

A: This is because, until the adoption of the 25th Amendment (1967), there was no mechanism for filling a vacancy in the office until a new national election was held. So the death/resignation of a president or vice president left the post empty, often for years. The six-year-gap you refer to was actually more like two three-year gaps, one caused by the death of President Zachary Taylor and ascension of VP Millard Fillmore, then—after a brief period of having the office filled—a second caused by the rapid death of VP William Rufus DeVane King, who only managed to hang on for about 6 weeks after his inauguration (which took place in Cuba, where he was trying to recover his health).

For most of the time prior to 1967, if the president had died/resigned and the vice presidency was vacant, then the presidency would have devolved upon the secretary of state.

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Q: What are the 10 most consequential executive orders in U.S. history? What were the consequences of these executive orders? F.S., Cologne, Germany

A: Here we go:

1. XO 13769 (Trump): Muslim travel ban
2. XO 10924 (Kennedy): Established the Peace Corps
3. Proclamation 4311 (Ford): Pardoned Richard Nixon
4. XO 13228 (G.W. Bush): Created the Department of Homeland Security
5. XO 9066 (F. Roosevelt): Japanese internment
6. XO 9981 (Truman): Desegregated the U.S. armed forces
7. XO 7034 (F. Roosevelt): Created the WPA and, with it, 8.5 million jobs
8. XO 10730 (Eisenhower): Ordered the National Guard to integrate schools, esp. Little Rock Central High
9. XO 8807 (F. Roosevelt): Launched the Manhattan Project
10. The Emancipation Proclamation (Lincoln): Put slavery on the path to extinction

If any reader thinks we missed one, let us know.

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