Biden Signs on the Dotted Line...

As it turns out, the delay in signing the $1.2 trillion bipartisan infrastructure bill was caused by the recess Congress was on last week. Joe Biden was waiting for them to be back in town so that Republican and Democratic supporters of the bill could be present for the signing ceremony, and for a bunch of photo-ops, and presumably for a rousing chorus of "Kumbaya, My Lord." Anyhow, they're back now, and so yesterday the President applied his signature. Wonder what it feels like to sign what is, in effect, a $1.2 trillion check? One that's not going to bounce, we mean.

How long will the glow last? Probably not very, at least in the short term. The White House has taken a pretty passive approach to marketing itself, perhaps because the next election is still nearly a year away, and Biden is saving his ammo until then. That said, the Democrats are definitely trying to build some momentum heading into the holiday season. To that end, the House will spend its week trying to get a version of the $1.75 trillion reconciliation bill hammered out and passed this week. Democratic leadership said yesterday that they expect to get things done, though it seems we just might have heard that once or twice before, so take that prediction with a few grains of salt.

The really important day this week is likely to be Friday. That is when the Congressional Budget Office (CBO) expects to release its scoring of the $1.75 trillion bill. If they say that the numbers add up, and that everything is fully paid for (which is what the White House claims), then it will grease the skids with the Blue Dog Democrats in the house, and maybe even with Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ). On the other hand, if the CBO says that the only way to get these particular books balanced is with smoke, mirrors, and duct tape, then it will have the opposite effect.

Even at such point that Biden holds his next trillion-dollar signing ceremony—assuming he does—then he and his poor approval ratings are hardly out of the woods. The economy isn't great right now, and the one or two bills are not likely to change that anytime soon. It's possible (though not likely) that the bills could even make some things (like inflation) worse. Further, a lot of the juicy stuff in the reconciliation bill doesn't kick in until 2023 or 2024, which isn't going to help much in next year's midterms.

The President could do himself a lot of good with some salesmanship. He could also use some help from the economy. It's going to be tricky, at best, and things might work out for him, but they might not. Oh, well. If Biden wanted a job where you don't have to do anything, and you don't have any accountability, then he shouldn't have run for president. Or, at least, he shouldn't have run for president as a Democrat. (Z)

...And He Really Needs to Win the Lottery

No, not the Powerball lottery (although, who couldn't use an extra $190 million?). In case Joe Biden doesn't have enough to be concerned about right now, he will also be keeping an eye today on the judicial lottery that will determine which federal circuit gets to rule on the fate of the administration's vaccination mandate for employers.

That mandate, which is set to kick in on Jan. 4 of next year, would require any private business with more than 100 employees to regularly test anyone who is unvaccinated. The frequency, and the unpleasantness, of the tests is, of course, meant to strongly encourage unvaccinated folks to finally get the damn shot. It may also serve to encourage employers who don't want to deal with unvaccinated employees, and who don't want to pay the costs of regular testing, to show the unvaccinated the door.

Needless to say, Biden likes the policy or he wouldn't have had OSHA implement it. And most businesses like the policy because they would much rather have vaccinated employees, as they are much less of a risk to other staffers and to other employees, and also much less of a risk to miss work, end up in the hospital, be unproductive for weeks or months, etc. However, a gaggle of Republican state AGs and conservative activist groups do not like the policy. And so, they filed a gaggle of lawsuits.

This weekend, the United States Court of Appeals for the Fifth Circuit won the race to issue the first decision. Based in New Orleans, the Fifth Circuit was stacked by Donald Trump with archconservative judges, such that it's become the most right-wing circuit in the land. And the poster child for Trumpy judges (or one of the poster children, at least) is Kurt D. Engelhardt, best known for his ruling that attempted to destroy Obamacare in one fell swoop.

It was Engelhardt who wrote this weekend's opinion, though with the concurrence of the other two judges on the three-judge panel—fellow Trump appointee Stuart Kyle Duncan and Ronald Reagan appointee Edith Jones, both of them archconservatives like Engelhardt. Anyhow, the ruling was an absolutely textbook case of judicial activism. The first part reads like a transcript of Hannity, accusing Biden of imposing the mandate purely to score political points, and decreeing that whatever the minor downsides of COVID-19 are, they are not worth the economic costs and the costs to personal liberty that come from anti-pandemic measures. The deaths of 700,000+ Americans might seem to justify those costs, though if you read the opinion, you'd have no idea about that, because Engelhardt does not see fit to mention any deaths or suffering.

After ranting and raving for a good 30 pages, Engelhardt gets to his actual legal opinion, which has essentially nothing to do with the 30 pages of ranting. He declares that the vaccination mandate is unconstitutional because it violates nondelegation doctrine. This is a conservative legal notion with a tenuous constitutional basis. The basic idea is that Congress is not legally allowed to give too much power to executive agencies. Only twice has this doctrine ever been sustained by the Supreme Court, and both of those were in 1935, and in very particular circumstances (a law allowing the president to draft and approve trade codes without congressional input). More recent SCOTUS jurisprudence, notably Mistretta v. United States (1989), has taken a decidedly hostile view of this doctrine. In that ruling, which was 8-1, the Court declared: "Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it 'constitutionally sufficient' if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."

So, deploying a legal theory of dubious merit, Engelhardt says the executive branch can't impose mandates like this. It would seem that only Congress is allowed to do that. Or maybe not. Even though the current case has nothing to do with a mandate from Congress, the Judge anticipated that the question might just come up, and so advised that the legislative branch can't impose mandates like this, either. They're allowed to regulate commerce, but getting vaccinated is, in his view, "noneconomic activity," and so is the province of the states, and not the federal government. Who knew that what goes on at Walmart, General Electric, Microsoft, and other large firms is not economic activity? Someone better tell the stock market.

In short, this is what it looks like when a judge—say, one who has been a member of the Federalist Society for two decades—is 100% in the bag for a political party. The vaccine mandate may be legal, and it may not be legal, but Engelhardt's opinion does nothing to answer that question in a substantive way. Or actually, in a roundabout way, maybe it does. If there was a more sound case to be made for striking down the mandate, then presumably the Judge would have made it, rather than relying on barely existent and clearly outdated precedents and on various other forms of sophistry. And presumably he wouldn't have needed to preface his ruling with a 30-page screed. So maybe what Engelhardt inadvertently revealed to us is that the mandate is actually on pretty sound legal footing.

In any event, Biden really needs this mandate to stand up. Between the people who are already vaccinated, and the approval of the COVID-19 vaccines for children, and the mandate for government employees, and the mandate for the private sector, the U.S. stands an excellent chance of reaching herd immunity, and traveling much further down the road back to normalcy. Without the private sector mandate, though, herd immunity may remain just out of the administration's grasp.

And that brings us to today's lottery. So as to avoid clogging up the federal court system with two or six or nine versions of the same case, the rules say that all challenges to an "emergency temporary standard," which is what the mandate is, must be consolidated and handled by a single circuit. So, the names of all the circuits that have had at least one mandate-challenge case filed will be put into a hat today, and the one that's drawn will issue the definitive appeals court opinion. A total of 11 circuits have had at least one case, so the odds that the slip of paper has "Fifth Circuit" on it are about 9%. Engelhardt knows that there's a 91% chance that he's going to be muzzled on this issue today, which is why he and his two colleagues hustled to get their manifest...er, their opinion published.

There are still bumps in the road, of course—there are other conservative judges, and other conservative circuits out there. And the current Supreme Court will presumably have its say, eventually. But for now, the bump that matters is the next one, and Biden is really hoping that the lottery gods smile upon him. (Z)

Bannon Surrenders, Is Released

Speaking of legal fiascos, Steve Bannon surrendered to the FBI yesterday, and after an appearance before Magistrate Judge Robin Meriweather, was released on his own recognizance.

Consistent with his usual MO, Bannon turned the whole thing into a circus. He livestreamed his surrender on GETTR, so that all six of that site's users could watch. He promised to bring the Biden administration down, and plugged the podcast he was scheduled to do after leaving court. "I'm telling you right now," the former presidential adviser said, "this is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi and Joe Biden. ... We're going on the offense. They took on the wrong guy this time; they took on the wrong guys."

Bannon is a True Believer, and could well be the type who is willing to martyr himself for his "cause," which is basically the violent overthrow of the U.S. government. That said, his peacocking was so aggressive that it brought to mind this brief scene from A Few Good Men:

Could be a case of "He doth bluster too much, methinks." Bannon also hired David Schoen, who handled Donald Trump's second impeachment, as representation. Bannon previously lambasted Schoen as an incompetent, but apparently his opinion has changed. Or, just maybe, he can't find anyone else to take the case. Point is, maybe a bit of weakness and fear are showing through that armor that Bannon has built for himself.

It's not so easy to win a criminal contempt case, but Bannon's behavior, and his shaky legal theory, are playing right into the hands of the Department of Justice. Other Trump acolytes are not so careless, and so they may prove harder to put the screws to in court. That will certainly be a major topic of discussion for the 1/6 Commission, as they meet to discuss what to do about subpoena defier #2, Mark Meadows, today. (Z)

Welcome to Unpersonhood, Never Trumpers

In contrast to many European political parties, American political parties have no membership requirements, no dues to pay, none of that. If you're a citizen of voting age, and you say you're a Republican/Democrat/Libertarian/Green/Undecided Cow, then you're a Republican/Democrat/Libertarian/Green/Undecided Cow.

Republicans are apparently having regrets about that approach. Or, at least, the Trumpers are, as they really want to be able to drum people who displease them out of the Party. And the Wyoming Trumpers have decided that they're not going to be deterred by the fact that there is no actual mechanism for doing so. To that end, they voted yesterday to decree that Rep. Liz Cheney (R-WY) is no longer a Republican. At least, not to them. To them, she's presumably an... Unpublican? Of course, she will still receive a Republican ballot at primary election time, and she will still caucus with the Republicans in the House (unless they vote to kick her out), and she will still be listed as R-WY, so—just like the Headless Horseman and the bridge—this is a fantasy that cannot pass beyond the borders of the Cowboy State.

Similarly, most readers probably have not heard of Marvin Olasky, but he's the longtime editor of World, a publication for evangelical Christians. Or, more accurately, he was the longtime editor. By all indications, he really and truly believes in the Bible and in the tenets of evangelical Christianity. And he took a long look at Donald Trump and concluded—brace yourself—that Trump is not much of a Christian. And so, Olasky said as much, and so was pushed out of his post. Presumably, the guiding principle of the next editor will be "WWDD?"

These maneuvers really are remarkable. Do these folks fail to grasp the implications of their actions, or do they just not care? Do they not realize that purging those who fail to adhere to the party line at all times was/is a major part of the playbook of Joseph Stalin, Hugo Chávez, Kim Jong-Un, and Mao Zedong, among others? For people who claim to hate the excesses of socialism and communism, they certainly are doing their very best to follow in the footsteps of history's most excessive socialists and communists.

Meanwhile, here is a list of Republicans who have not been drummed out of the Party, and are in zero danger of being drummed out of the Party:

• David Duke
• Charles Manson
• Joseph McCarthy
• Jerry Sandusky
• Timothy McVeigh
• Dennis Hastert
• The QAnon Shaman
• Rep. Paul Gosar (R-AZ)

Priorities, priorities. (Z)

Beto Is In...

He's been teasing it for a week, but now it's official: former representative, U.S. Senate candidate, and presidential candidate Beto O'Rourke will run for governor of Texas, in hopes of replacing Gov. Greg Abbott (R).

If O'Rourke was going to continue his political career, this may have been his only viable option, unless he wanted to try to return to the U.S. House, and to be 1 among 435 there. Needless to say, he'll be playing the role of David to Abbott's Goliath. Among the specific challenges that O'Rourke faces:

• Texas, as you may have heard, is a pretty red state. Its shift to "purple state" seems always to be right over the horizon.
  
  
• Abbott has been raising money, and O'Rourke largely hasn't, with the result that the Governor has $50 million more in the bank right now.
  
  
• He is somewhat damaged goods, having come up short in his last two campaigns.
  
  
• He said some things during his failed presidential campaign that might have been politic when speaking to a national audience, but are pretty impolitic in Texas. As we've pointed out several times, he is going to have particular trouble getting away from his pledge to pare back the Second Amendment.
  
  
• Matthew McConaughey could still enter the race on the Democratic side and muddy the waters. Ditto the Castro brothers.
  
  
• He failed to defeat Sen. Ted Cruz (R-TX), who may be the most hated politician in Texas.

That said, the Democratic bench is a bit thin in the Lone Star State, and O'Rourke is about as strong a candidate as they could have hoped for. He does have some things going for him:

• He has done well with Latino voters in the past, and appreciates the importance of that constituency. In fact, his first campaign swing is going to be through the heavily Latino southwest portion of the state.
  
  
• He's very charismatic.
  
  
• He is an excellent fundraiser.
  
  
• He knows social media, and uses it far more effectively than Abbott does.
  
  
• Abbott isn't all that much more popular than Cruz.
  
  
• Abbott is sure to be renominated, but he's got some challengers from the right who could damage him in the process, most obviously former representative Allen West.

Recent polls of the (then-hypothetical) matchup have given Abbott the edge, but generally not an insurmountable one. There was one that had Abbott up 9 points, but the other three had him up five or less. O'Rourke's only real hope is that Abbott makes some kind of major blunder, for example, in response to a freak weather event.

Things can change a lot once the candidates are official (or basically official) and the campaigns begin in earnest. This one still leans Republican, but we'll definitely be keeping close tabs on it. (Z)

...And Leahy Is Out

Sen. Pat Leahy (D-VT) is the dean of the Senate, and is the fifth-longest-serving member in the history of the upper chamber, having taken his seat when Gerald Ford was president, Generalísimo Francisco Franco was still alive, the Elton John version of "Lucy in the Sky with Diamonds" was the number one song in the land, The Godfather, Part II was the nation's top movie, Wheel of Fortune was three days from its premiere, and the 4-10 Chicago Bears were in the NFL's basement. Ok, so some things haven't changed all that much.

If the senator had wanted to take the crown as the longest-serving U.S. senator ever, it was within his reach. Reelection was his for the asking, and if he'd made it to the age of 86, and to midway through the third year of that next term, he would have unseated Robert C. Byrd (D-WV), who served 51 years, 5 months, 26 days. Although Leahy had seemed to suggest that he was going to give it a go, he changed his mind, and yesterday announced his retirement. He had some health problems back in January, and he's certainly earned a nice retirement, and so we send him early good wishes as he prepares to ride into the sunset. And since his term will end in early January 2023, and he lives in Vermont, that sunset will commence at about 3:45 p.m.

For a brief moment, Republicans around the nation—beginning with Senate Minority Leader Mitch McConnell (R-KY)—were smiling broadly. Not that they wish Leahy any ill-will; by all accounts he's a fine fellow and is well-liked by colleagues on both sides of the aisle. However, Gov. Phil Scott (R-VT) is popular, has won statewide election four times, and had already announced his retirement from the governor's mansion when his term is up. He seemed to be an ideal recruit, one who might flip a seat that had been on nobody's radar. However, Scott quickly said "No, thanks." He's not a Trumper, and does not want the unpleasantness that comes with being an anti-Trump Republican in Washington. Further, it's not easy to go from being 1 of 1 to being 1 of 100. It's more fun to be a very big fish in a small pond than to be a medium-sized fish in a much, much bigger pond.

After Scott, the Republican bench in Vermont is threadbare. The Party could try to recruit a Republican member of the Vermont legislature, like Patricia McCoy, the Republican leader in the Vermont House. However, she isn't a Trumper either, and she isn't well known and hasn't won statewide election. Former governor Jim Douglas (R) has won statewide, but he also said yesterday that he's not interested. Probably, the VT GOP will find someone who can self-fund. John Abele is the richest Vermonter, with $640 million, and he's a Republican. He may be getting a phone call from a Kentucky area code today. This is also a situation ripe for Donald Trump to find some nutter who has no chance of winning, and who will just be a thorn in the side of everyone besides Donald Trump. So, don't count that out.

On the Democratic side, by contrast, the bench is deep. Rep. Peter Welch is considered the heir apparent (but not the hair apparent, which is what we originally typed, and which would not be apropos because he is bald). He piped up on Monday and said he's definitely interested. He'll be 76 on Jan. 3, 2023, which is a little aged to be starting a Senate career, particularly as replacement for a guy who just decided that 81 is too old. There are several promising women, led by Lt. Gov. Molly Gray. However, it looks like she will run for Welch's seat, and will not set her sights higher.

So, at the moment, it appears there's not much to see here, and that one follically-challenged senior citizen white guy is going to replace a different follically-challenged senior citizen white guy. We'll see if Scott changes his mind, or Gray changes hers, or Trump manages to find Marjorie Taylor Greene of the North. (Z)

Hooray for Hollywood: Readers' Favorite Films (Honorable Mentions, Part II)

Tomorrow, we will start the countdown, based on tallying up the votes that readers sent in. Today, another 20 honorable mentions.

Note, once again, that this list is entirely subjective. We just went through and picked out some films that seemed to be not well known, and where the reader's description was interesting.

Also, we did not actually delete e-mails that referred to "favourite" movies, as indicated by the fact that two of the suggestions yesterday were from Canadian readers. That was just a joke. The only e-mails we deleted were ones with the domain usc.edu.

Anyhow, away we go with Honorable Mentions, N-Z:

21. The Night of the Hunter (1955; Charles Laughton, dir.): The only movie Laughton ever directed, and one of the creepiest bedtime stories ever told. (D.M. in Oakland, CA)
    
    
22. The Painted Veil (2006; John Curran, dir.): Overlooked film, beautifully shot in China against the backdrop of the revolution and a cholera epidemic; a couple finds their way to one another after betrayal. (A.R. in Los Angeles, CA)
    
    
23. Performance (1970; Donald Cammell, Nicolas Roeg, dirs.): This movie nails the vibe of late 1960's swinging England. It has sex, drugs, rock 'n roll, and cameo appearances of Jorge Luis Borges' image. It is also incomprehensible without repeated viewings. (R.S. in Chicago, IL)
    
    
24. Ruby in Paradise (1993; Victor Nunez, dir.): I think I may be the only person who's ever seen this one—lovely, quiet, thoughtful movie. (A.W. in Morrison, CO)
    
    
25. The Ruling Class (1972; Peter Medak, dir.): Truly one of the best horror movies. (Yes, really.) (D.K. in Oceanside, CA)
    
    
26. The Saddest Music in the World (2003; Guy Maddin, dir.): If you are familiar with Maddin's work you will know it is a bizarre story of a contest during the depression era to find the saddest music in the world. Roger Ebert even gave it 3.5 out of 4 stars. My favorite scene was the one with star actress Isabella Rosselini, who, with glass legs filled with beer, judges the musicians. In the movie, as an extra, I was the Albanian mandolin player (which did not affect my nomination at all). (D.J.M. in Salmon Arm, BC, Canada)
    
    
27. Sansho the Bailiff (1954; Kenji Mizoguchi, dir.): Mizoguchi is often overshadowed by his better-known countryman Akira Kurosawa, but he was a masterful filmmaker with a strong feminist sensibility. This story of a regional official whose family undergoes tremendous hardship because of his refusal to oppress the peasants under his control touches on themes of loyalty, how people react to enslavement, and what kind of government we choose. (L.B. in Savannah, GA)
    
    
28. Searching for Bobby Fischer (1993; Steven Zaillian, dir.): Excellent tale of how a child's talent can distort their parents' view of them and their view of themselves. (A.R. in Los Angeles, CA)
    
    
29. Silent Running (1972; Douglas Trumbull, dir.): This is an odd one. I have a strong Druidic streak to me and, while many would (perhaps rightly) think of Lowell as a madman, I am impressed with the lengths he will go to to protect his beloved forests. (J.M. in Silver Spring, MD)
    
    
30. Skin Game (1971; Paul Bogart, Gordon Douglas, dirs.): Sure, it's a silly buddy comedy, but it takes a very serious look at slavery in the U.S. (G.W. in Oxnard, CA)
    
    
31. Smoke Signals (1998; Chris Eyre, dir.): Adam Beach and Evan Adams as two contemporary teens on the Coeur d'Alene Reservation in Idaho-Washington dealing with their bitter childhoods; really good commentary on forgiving their fathers. (J.P. in Whitehorse, YT, Canada)
    
    
32. Testament (1983; Lynne Littman, dir.): How to make a whole classroom cry. (D.H. in Lisbon Falls, ME)
    
    
33. Them! (1954; Gordon Douglas, dir.): The first "Oops, maybe we should not have invented the atomic bomb!" movie. Steven Spielberg has said this was inspirational for him. (P.R. in Saco, ME)
    
    
34. Thunderheart (1992; Michael Apted, dir.): Most likely on my list because I grew up next to an Indian reservation, and I have a great empathy for them and an understanding of their hardships. Plus, Graham Greene! (N.E.H. in Rochester, NY)
    
    
35. To Live (1994; Yimou Zhang, dir.): Chinese historic drama by Yimou. Features a stellar performance by jaw-droppingly gorgeous Gong Li. Absolutely heartbreaking but ultimately hopeful. (P.P. in Minneapolis, MN)
    
    
36. The Turin Horse (2011; Béla Tarr, Ágnes Hranitzky, dir.): Not for the impatient, Béla Tarr's depiction of the life of a poor farmer and his daughter often seems to take place in real time as we watch them perform the most ordinary activities in careful, slow detail. The backdrop is the deterioration of the world and its redemption. (L.B. in Savannah, GA)
    
    
37. Wadjda (2012; Haifaa Al-Mansour, dir.): The first Saudi film directed by a woman (who had to direct from inside a van), it manages to be both restrained enough to pass the Saudi censors, while at the same time effectively communicating the oppression women experience under that regime. (L.B. in Savannah, GA)
    
    
38. This Is not a Film (2011; Mojtaba Mirtahmasb, Jafar Panahi, dirs.): What happens when a filmmaker is barred from filmmaking. (B.U. in St. Louis, MO)
    
    
39. The World of Henry Orient (1964; George Roy Hill, dir.): It is actually better and more compelling than the book by Nora Johnson that it was based on. It captures the bittersweet moment as kids become teens in a New York City portrayed in a golden light in the early 1960s. Audiences expecting Peter Sellers to be the goofy Clouseau were disappointed, but his humorous performance as a conceited pianist was just right. (G.R.C. in Southfield, MI)
    
    
40. Zero Effect (1998; Jake Kasdan, dir.): It's a modern-day retelling of "A Scandal in Bohemia." It's so good—it's a shame it isn't better-known. (B.G. in Strafford, VT)

Next up: We decided to do a Top 60, so the total number of suggestions is a nice, round hundred. So, tomorrow will be Numbers 51-60.

Also, we didn't actually delete usc.edu e-mails. That was a joke, too. (V & Z)

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