thebulwark--2020-05-02--The Eternal Sunshine of Trump’s Spotless Mind

By the time the president completes his typical Sunday rage-tweeting , it is often difficult to pick what was risible and separate it from what was laughable , especially since , in the Venn diagram of Trumpism , those circles are converging .
But last Sunday ’ s show featured a claim that should be remembered precisely because it is so easy to forget .
Reacting to a story about his pandemic work habits that appeared in the New York Times—a newspaper he has made a public display of saying he does not read but to which he responds with @ @ @ @ @ @ @ “ people say ” device , or the fact that the only thing more unpalatable to Trump ’ s critics than him binge-watching Fox & Friends might be what he would actually do if he spent more time in the office .
The real problem is his rush to the superlative : He is eager to measure his actions in historical terms .
( The least plausible of Trump ’ s claims are often made with the most rhetorical force .
See “ genius , stable.
” ) The issue is not the @ @ @ @ @ @ @ , even if Trump tells , to use his dialect , the tallest ever—but rather the nature of it .
Trump operates outside of time in an argot that dissolves the shared memories on which a republic depends .
He lives in an eternal now .
This may be fine for individuals—or at least for adolescents who have not yet grasped the fleeting nature of man ’ s existence .
But it is an insufficient foundation for constitutional government .
The illustrations are legion .
In late December , after Christianity Today endorsed @ @ @ @ @ @ @ he tweeted that “ no President has ever done what I have done for Evangelicals , or religion itself !
” Two of his recent predecessors , Jimmy Carter and George W. Bush , actually are evangelicals .
Two of his other predecessors , Thomas Jefferson and James Madison , authored , respectively , the Virginia Statute for Religious Freedom and the text that became the First Amendment .
Trump ’ s presidential bearing , he says , ranks second in history only to Abraham Lincoln .
Not George Washington ?
“ No @ @ @ @ @ @ @ like ” what Trump claims to have done for African-Americans .
Not Lincoln ?
“ No president accomplished more in the first 90 days , ” Trump said as he approached the 100-day mark of his administration .
Not Franklin Roosevelt , whose blizzard of efforts to combat the Great Depression is the reason presidents are still measured on that timeline ?
Trump ’ s madcap , year-end tweeting last December included sharing a photo montage calling him “ the best president of all time ” as well as a claim that “ @ @ @ @ @ @ @ as President Trump is today.
” Trump ’ s campaign manager , Brad Parscale , appeared in an advertisement asserting that Trump had “ achieved more during his time in office than any president in history.
” This feat , which entailed outpacing not only every prior president but also every future one , did not even require a full term .
People can reasonably disagree about exactly how much Donald Trump has achieved .
But the notion that it is so much not only that no previous president has matched it but @ @ @ @ @ @ @ exceed it is absurd .
Not even recent history is spared this ahistorical treatment .
Kayleigh McEnany , then the campaign spokeswoman and now performing the same function on the public dime as White House press secretary , suggested that Trump won the 2016 Republican nomination unopposed .
In Trump ’ s America , three years is a long time ago—long enough , apparently , to obliterate memories of the carnival of Republican challengers to Trump who slipped into his shadow exactly because there were so many of them .
When Nathaniel Hawthorne @ @ @ @ @ @ @ s Holocaust ” imagined a world stripped of memory , the first things on the fire were “ yesterday ’ s newspapers.
” Trump is not alone in living in the present without reference to the past .
Democrats frequently invoke the adjective “ unprecedented ” to describe actions by Trump that probably do have historical antecedents .
His harshest critics have loosely thrown around words like “ fascism ” that have real historical meanings that overuse will erode .
Trump is , however , the only one who is president of the @ @ @ @ @ @ @ a nation “ dedicated to a proposition , ” as Lincoln said , also needs the “ mystic chords of memory ” to bind it .
The proposition to which Lincoln referred was the Declaration of Independence ’ s assertion of a “ self-evident truth ” that “ all men are created equal.
” Yet while that self-evidence may animate philosopher-poets like Jefferson , even a nation based on an intellectual proposition demands more to give it life .
One reason is that the people participating in the anonymity of mass politics tend @ @ @ @ @ @ @ recognized that fact in Federalist 49 , which argued that tradition rather than philosophical assent would be necessary to cement the new Constitution in citizens ’ minds .
The Constitution , he wrote , would need “ that veneration which time bestows on every thing , and without which perhaps the wisest and freest governments would not possess the requisite stability.
” Similarly , in his Farewell Address , Washington advised the country to unify as Americans rather than as partisans of their respective states not only because they shared principles with each @ @ @ @ @ @ @ of fighting for them .
Even Lincoln , an axiomatic thinker who applied Euclid to politics , invoked “ every battlefield and patriot grave ” in pleading with the union to stay together .
His characterization of these “ chords of memory ” as “ mystic ” suggests Lincoln ’ s acknowledgement that reason alone was an inadequate foundation for politics .
It is significant that America ’ s Founders appealed to philosophy when in revolutionary mode , but to historical experience when governing .
John Dickinson , for example , said at @ @ @ @ @ @ @ be our only guide .
Reason may mislead us.
” The Federalist is rife with historical references ranging from ancient Greece to medieval Europe .
History served two purposes for the founding generation .
One was to seal popular commitment to the country and its principles with the emotional attachment of shared memories .
The second—which Trump ’ s disregard for the past also undermines—was that history was a better guide to governing than abstract philosophy alone .
Philosophers make mistakes .
So , of course , do statesmen , but history provides @ @ @ @ @ @ @ issue is the burden of trust we place on abstract reason or the intelligence of any one statesman at any one time .
Alexis de Tocqueville foresaw the risk .
Americans , he wrote , comprised the nation least likely to study the French philosopher René Descartes—famous for concluding that “ I think , therefore I am ” —but likeliest to follow his individualist precepts .
What Tocqueville called “ the philosophical method of the Americans ” included utilizing “ tradition only as information ” rather than as authority .
Yet reverence for @ @ @ @ @ @ @ alternative to the impulses of the moment that so often entrap Trump , while a shared historical memory is likelier than philosophical argumentation to unite a divided country and provide a stable link to the past and future .
Lincoln understood the importance of this intergenerational authority .
In his 1860 Cooper Union Address , he proved that the founding generation had opposed slavery .
That did not mean we were bound to whatever they had done .
Significantly , however , Lincoln counseled a spirit of deference to historical forebears : “ @ @ @ @ @ @ @ if we would supplant the opinions and policy of our fathers in any case , we should do so upon evidence so conclusive , and argument so clear , that even their great authority , fairly considered and weighed , can not stand….
” In scripted remarks , Trump has paid lip-service to this general idea .
In appointing judges , has appealed to the authority of the Founders .
In State of the Union addresses , he has evoked national memories ranging from D-Day to the civil rights movement .
But in @ @ @ @ @ @ @ unshackled to words written for him by others—he lives in a never-ending now devoid of any context beyond himself .
In a sense , Trump ’ s much-mocked bungling of history is less troubling than his wholesale disregard for it .
Knowing that they sit where Washington and Lincoln did might induce humility in presidents .
It might also encourage arrogance .
But either is preferable to treating the office as though it had been created for , and unoccupied until , Donald Trump .

By the time the president completes his typical Sunday rage-tweeting, it is often difficult to pick what was risible and separate it from what was laughable, especially since, in the Venn diagram of Trumpism, those circles are converging. But last Sunday’s show featured a claim that should be remembered precisely because it is so easy to forget. Reacting to a story about his pandemic work habits that appeared in the New York Times—a newspaper he has made a public display of saying he does not read but to which he responds with suspicious frequency—Trump tweeted:
The people that know me and know the history of our Country say that I am the hardest working President in history. I don’t know about that, but I am a hard worker and have probably gotten more done in the first 3 1/2 years than any President in history. The Fake News hates it! — Donald J. Trump (@realDonaldTrump) April 26, 2020
Never mind the “people say” device, or the fact that the only thing more unpalatable to Trump’s critics than him binge-watching Fox & Friends might be what he would actually do if he spent more time in the office.
The real problem is his rush to the superlative: He is eager to measure his actions in historical terms. (The least plausible of Trump’s claims are often made with the most rhetorical force. See “genius, stable.”) The issue is not the fabulism itself—tall tales are part of politics, even if Trump tells, to use his dialect, the tallest ever—but rather the nature of it. Trump operates outside of time in an argot that dissolves the shared memories on which a republic depends. He lives in an eternal now. This may be fine for individuals—or at least for adolescents who have not yet grasped the fleeting nature of man’s existence. But it is an insufficient foundation for constitutional government.
Podcast · August 15 2023 A.B. Stoddard: All the Ex-President’s Conspirators Donald Trump has been a low-rent mobster for his entire career, and now he’s getting…
The illustrations are legion. In late December, after Christianity Today endorsed Trump’s impeachment and removal, he tweeted that “no President has ever done what I have done for Evangelicals, or religion itself!” Two of his recent predecessors, Jimmy Carter and George W. Bush, actually are evangelicals. Two of his other predecessors, Thomas Jefferson and James Madison, authored, respectively, the Virginia Statute for Religious Freedom and the text that became the First Amendment.
Trump’s presidential bearing, he says, ranks second in history only to Abraham Lincoln. Not George Washington?“No president has been able to do anything like” what Trump claims to have done for African-Americans. Not Lincoln?
“No president accomplished more in the first 90 days,” Trump said as he approached the 100-day mark of his administration. Not Franklin Roosevelt, whose blizzard of efforts to combat the Great Depression is the reason presidents are still measured on that timeline?
Trump’s madcap, year-end tweeting last December included sharing a photo montage calling him “the best president of all time” as well as a claim that “no president will ever be as great as President Trump is today.” Trump’s campaign manager, Brad Parscale, appeared in an advertisement asserting that Trump had “achieved more during his time in office than any president in history.” This feat, which entailed outpacing not only every prior president but also every future one, did not even require a full term.
People can reasonably disagree about exactly how much Donald Trump has achieved. But the notion that it is so much not only that no previous president has matched it but also that no future president possibly could exceed it is absurd. Not even recent history is spared this ahistorical treatment. Kayleigh McEnany, then the campaign spokeswoman and now performing the same function on the public dime as White House press secretary, suggested that Trump won the 2016 Republican nomination unopposed.
In Trump’s America, three years is a long time ago—long enough, apparently, to obliterate memories of the carnival of Republican challengers to Trump who slipped into his shadow exactly because there were so many of them. When Nathaniel Hawthorne’s short story “Earth’s Holocaust” imagined a world stripped of memory, the first things on the fire were “yesterday’s newspapers.”
Trump is not alone in living in the present without reference to the past. Democrats frequently invoke the adjective “unprecedented” to describe actions by Trump that probably do have historical antecedents. His harshest critics have loosely thrown around words like “fascism” that have real historical meanings that overuse will erode.
Trump is, however, the only one who is president of the United States.
Historical awareness matters because a nation “dedicated to a proposition,” as Lincoln said, also needs the “mystic chords of memory” to bind it. The proposition to which Lincoln referred was the Declaration of Independence’s assertion of a “self-evident truth” that “all men are created equal.” Yet while that self-evidence may animate philosopher-poets like Jefferson, even a nation based on an intellectual proposition demands more to give it life.
One reason is that the people participating in the anonymity of mass politics tend not to utilize pure reason. Madison recognized that fact in Federalist 49, which argued that tradition rather than philosophical assent would be necessary to cement the new Constitution in citizens’ minds. The Constitution, he wrote, would need “that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.”
Similarly, in his Farewell Address, Washington advised the country to unify as Americans rather than as partisans of their respective states not only because they shared principles with each other but also because they shared memories of fighting for them. Even Lincoln, an axiomatic thinker who applied Euclid to politics, invoked “every battlefield and patriot grave” in pleading with the union to stay together. His characterization of these “chords of memory” as “mystic” suggests Lincoln’s acknowledgement that reason alone was an inadequate foundation for politics.
It is significant that America’s Founders appealed to philosophy when in revolutionary mode, but to historical experience when governing. John Dickinson, for example, said at the constitutional convention that “experience must be our only guide. Reason may mislead us.” The Federalist is rife with historical references ranging from ancient Greece to medieval Europe.
History served two purposes for the founding generation. One was to seal popular commitment to the country and its principles with the emotional attachment of shared memories. The second—which Trump’s disregard for the past also undermines—was that history was a better guide to governing than abstract philosophy alone. Philosophers make mistakes. So, of course, do statesmen, but history provides a better classroom for statecraft.
The issue is the burden of trust we place on abstract reason or the intelligence of any one statesman at any one time. Alexis de Tocqueville foresaw the risk. Americans, he wrote, comprised the nation least likely to study the French philosopher René Descartes—famous for concluding that “I think, therefore I am”—but likeliest to follow his individualist precepts. What Tocqueville called “the philosophical method of the Americans” included utilizing “tradition only as information” rather than as authority.
Yet reverence for custom—which evolves, but slowly—is a compelling alternative to the impulses of the moment that so often entrap Trump, while a shared historical memory is likelier than philosophical argumentation to unite a divided country and provide a stable link to the past and future.
Lincoln understood the importance of this intergenerational authority. In his 1860 Cooper Union Address, he proved that the founding generation had opposed slavery. That did not mean we were bound to whatever they had done. Significantly, however, Lincoln counseled a spirit of deference to historical forebears: “What I do say is, that if we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, cannot stand….”
In scripted remarks, Trump has paid lip-service to this general idea. In appointing judges, has appealed to the authority of the Founders. In State of the Union addresses, he has evoked national memories ranging from D-Day to the civil rights movement. But in daily practice and spontaneous speech—when he is unshackled to words written for him by others—he lives in a never-ending now devoid of any context beyond himself.
In a sense, Trump’s much-mocked bungling of history is less troubling than his wholesale disregard for it. Knowing that they sit where Washington and Lincoln did might induce humility in presidents. It might also encourage arrogance. But either is preferable to treating the office as though it had been created for, and unoccupied until, Donald Trump.


thebulwark--2020-05-02--Decoding Bill Barr’s Threats To State Coronavirus Orders

Attorney General William Barr has chosen to further his patron ’ s desire to “ reopen ” the economy quickly by warning state and local authorities not to go too far with their coronavirus-related restrictions .
On April 27 , Barr instructed DOJ prosecutors to be on the lookout for any state or local ordinance that “ crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections ” because in such cases “ the Department of Justice may have an obligation to address that overreach in @ @ @ @ @ @ @ ’ s challenges to state governments will be determined by how Barr ’ s DOJ defines “ too far , ” and where it attempts to draw the line between the “ appropriate exercise of authority , ” on the one hand , and an “ overbearing infringement of constitutional and statutory protections , ” on the other .
Narrow , precisely targeted challenges to obviously abusive state restrictions of constitutional rights that have no relation to slowing the spread of the coronavirus would be a proper exercise of federal authority .
But @ @ @ @ @ @ @ that of state governors and local authorities on precisely how far it is wise to go to protect health and safety within a given state or community would be an abuse of power on the part of the attorney general .
It would be , on its face , using the government ’ s law enforcement power to support the political agenda of an incumbent president seeking reelection .
Distinguishing between a legitimate exercise of federal authority and an abuse of power begins with a look at the constitutional framework .
There ’ @ @ @ @ @ @ @ .
While there is no “ pandemic exception ” to the fundamental liberties the Constitution safeguards , the Supreme Court made it clear over a hundred years ago in Jacobson v. Massachusetts that the Constitution does not prohibit government from taking necessary , temporary measures to safeguard the health and safety of the community in an emergency : Determining the limits on the government ’ s authority to restrict liberty in times of emergency requires a balancing test , but the scales are heavily weighted in favor of deference to the emergency measures @ @ @ @ @ @ @ permitted to second-guess the wisdom or efficacy of a government ’ s emergency actions .
They should intervene only when the action “ has no real or substantial relation to [ protecting public health or safety ] or is , beyond all question , a plain , palpable invasion of rights secured by the fundamental law.
” [ emphasis added ] That ’ s a high bar for any court challenge to clear .
And the bar is particularly high when it comes to protecting the health and safety of the public against @ @ @ @ @ @ @ stated in Jacobson : So , how does Barr ’ s shot across the bow of state and local governments stack up against this constitutional framework ?
So far , the signals from Barr are murky , but troubling .
Barr ’ s message has been delivered in three bites : ( 1 ) A Statement of Interest filed by the DOJ in a Mississippi case in which a church claimed that local authorities took improper action to stop it from holding drive-in services ; ( 2 ) The memo Barr sent to @ @ @ @ @ @ @ the lookout for restrictive measures that go too far ; and Let ’ s look at these one by one .
The Statement of Interest filed by the DOJ in support of the plaintiff in a Mississippi lawsuit—the only official action Barr has taken to date—appears on its face to have been a legitimate challenge to an arguably discriminatory local restriction on religious assembly .
The plaintiff in that case was a Baptist church that had been prohibited from holding drive-in services , even though the church required parishioners to remain in their @ @ @ @ @ @ @ closed .
Mississippi ’ s statewide order allowed all essential businesses to continue operations , and designated churches as essential .
But the city Greenville banned drive-in church services anyway , even though they adhered to the guidelines established by the CDC and the state .
At the same time , the city permitted drive-in restaurants to serve customers with their windows open .
As a result , the city ordinance arguably singled out religious assembly for less favorable treatment than equivalent secular pursuits .
The church ’ s challenge , supported by @ @ @ @ @ @ @ voluntary revision of the ordinance , and in the end no harm was done to either the Constitution or the state ’ s efforts to slow the spread of the virus .
While the DOJ ’ s opposition to the Greenville ordinance , standing alone , may have been a defensible use of federal authority , it does raise the question of whether that authority will be exercised selectively , only when it furthers Barr ’ s ( or Trump ’ s ) political agenda .
Religious liberty is not the only right @ @ @ @ @ @ @ of states have used coronavirus restrictions to curtail abortion access , arguing that it is non-essential .
Is Barr going to challenge these ordinances , too ?
Is he going to challenge state ordinances that set up hurdles to absentee voting ?
Or will Barr focus only on the constitutional rights that are most prized by Trump ’ s base ?
Then there ’ s Barr ’ s memo to DOJ prosecutors , which suggests without being explicit that the targets of this campaign may well be selected through a political filter .
@ @ @ @ @ @ @ “ are not limited ” to religious matters , it clearly puts discrimination against “ religious institutions and religious believers ” front and center .
Where else does Barr target his army of prosecutors ?
The memo mentions only discrimination against “ disfavored speech ” and “ undue interference with the national economy.
” “ Disfavored speech ” could be anything—maybe a right to “ Liberation ” protests or even a warning against any state restriction that might prohibit Trump from holding a campaign rally .
“ Undue interference with the national economy @ @ @ @ @ @ @ .
For starters , how are the lawyers at the Department of Justice supposed to reasonably calculate the national economic consequences of state and local ordinance ?
The answer , of course , is that they can not .
The only purpose of such a threat is to intimidate lawmakers into not adopting measures that might frustrate or delay Trump ’ s “ open America again ” policy .
But the most revealing window into Barr ’ s intentions is his interview with Hugh Hewitt .
In speaking to Hewitt , Barr articulated @ @ @ @ @ @ @ inaccurate view of the purpose , scope , and efficacy of state stay-at-home and shelter-in-place orders .
According to Barr , the orders were adopted only “ for the limited purpose of slowing down the spread , that is bending the curve .
We didn ’ t adopt them as the comprehensive way of dealing with this disease.
” Who says ?
Weren ’ t the measures adopted to more broadly stop the virus from killing people ?
What state declared that the minute the curve flattened , their orders would automatically be @ @ @ @ @ @ @ were still dying ?
Barr then declares that that war has been won , and therefore new therapies are needed : “ [ N ] ow is the time that we have to start looking ahead and adjusting to more targeted therapies.
” When and where did Barr get his medical degree ?
Who made him chief health officer of the United States ?
Who put him in charge of deciding which therapies are medically indicated , and which go “ too far ?
” The answer , of course , is precisely @ @ @ @ @ @ @ afield of his Constitutional authority .
But it gets worse .
Barr doesn ’ t merely want to substitute his own views for those of health professionals , he wants to leave it to business executives .
Here ’ s more from his Hewitt interview : These statements of bias from the attorney general would be bad enough because they represent a political , not a legal , opinion .
But he wasn ’ t finished .
Barr continues : This attorney general has shown , time after time , that he is @ @ @ @ @ @ @ the laws , but merely the cat ’ s paw of the president .
And now , in the midst of a pandemic , he is showing it again .

Attorney General William Barr has chosen to further his patron’s desire to “reopen” the economy quickly by warning state and local authorities not to go too far with their coronavirus-related restrictions.
On April 27, Barr instructed DOJ prosecutors to be on the lookout for any state or local ordinance that “crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections” because in such cases “the Department of Justice may have an obligation to address that overreach in federal court.”
The legitimacy of Barr’s challenges to state governments will be determined by how Barr’s DOJ defines “too far,” and where it attempts to draw the line between the “appropriate exercise of authority,” on the one hand, and an “overbearing infringement of constitutional and statutory protections,” on the other.
Narrow, precisely targeted challenges to obviously abusive state restrictions of constitutional rights that have no relation to slowing the spread of the coronavirus would be a proper exercise of federal authority.
But simply substituting Barr’s judgment for that of state governors and local authorities on precisely how far it is wise to go to protect health and safety within a given state or community would be an abuse of power on the part of the attorney general. It would be, on its face, using the government’s law enforcement power to support the political agenda of an incumbent president seeking reelection.
Podcast · August 15 2023 A.B. Stoddard: All the Ex-President’s Conspirators Donald Trump has been a low-rent mobster for his entire career, and now he’s getting…
Distinguishing between a legitimate exercise of federal authority and an abuse of power begins with a look at the constitutional framework. There’s ample authority to guide the analysis.
While there is no “pandemic exception” to the fundamental liberties the Constitution safeguards, the Supreme Court made it clear over a hundred years ago in Jacobson v. Massachusetts that the Constitution does not prohibit government from taking necessary, temporary measures to safeguard the health and safety of the community in an emergency:
[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
Determining the limits on the government’s authority to restrict liberty in times of emergency requires a balancing test, but the scales are heavily weighted in favor of deference to the emergency measures. Under Jacobson, courts are not permitted to second-guess the wisdom or efficacy of a government’s emergency actions. They should intervene only when the action “has no real or substantial relation to [protecting public health or safety] or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” [emphasis added]
That’s a high bar for any court challenge to clear. And the bar is particularly high when it comes to protecting the health and safety of the public against communicable diseases. As the Supreme Court stated in Jacobson:
The right to practice religion freely does not include the liberty to expose the community . . . to communicable disease.
So, how does Barr’s shot across the bow of state and local governments stack up against this constitutional framework?
So far, the signals from Barr are murky, but troubling.
Barr’s message has been delivered in three bites:
(1) A Statement of Interest filed by the DOJ in a Mississippi case in which a church claimed that local authorities took improper action to stop it from holding drive-in services;
(2) The memo Barr sent to DOJ prosecutors instructing them to be on the lookout for restrictive measures that go too far; and
(3) A lengthy interview Barr gave to conservative talk-radio host Hugh Hewitt.
Let’s look at these one by one.
The Statement of Interest filed by the DOJ in support of the plaintiff in a Mississippi lawsuit—the only official action Barr has taken to date—appears on its face to have been a legitimate challenge to an arguably discriminatory local restriction on religious assembly.
The plaintiff in that case was a Baptist church that had been prohibited from holding drive-in services, even though the church required parishioners to remain in their cars at all times with their windows closed. Mississippi’s statewide order allowed all essential businesses to continue operations, and designated churches as essential. But the city Greenville banned drive-in church services anyway, even though they adhered to the guidelines established by the CDC and the state. At the same time, the city permitted drive-in restaurants to serve customers with their windows open. As a result, the city ordinance arguably singled out religious assembly for less favorable treatment than equivalent secular pursuits.
The church’s challenge, supported by the DOJ, quickly led to a voluntary revision of the ordinance, and in the end no harm was done to either the Constitution or the state’s efforts to slow the spread of the virus.
While the DOJ’s opposition to the Greenville ordinance, standing alone, may have been a defensible use of federal authority, it does raise the question of whether that authority will be exercised selectively, only when it furthers Barr’s (or Trump’s) political agenda.
Religious liberty is not the only right protected by the Constitution. A number of states have used coronavirus restrictions to curtail abortion access, arguing that it is non-essential. Is Barr going to challenge these ordinances, too? Is he going to challenge state ordinances that set up hurdles to absentee voting?
Or will Barr focus only on the constitutional rights that are most prized by Trump’s base?
Then there’s Barr’s memo to DOJ prosecutors, which suggests without being explicit that the targets of this campaign may well be selected through a political filter.
While it concedes that disfavored state restrictions “are not limited” to religious matters, it clearly puts discrimination against “religious institutions and religious believers” front and center. Where else does Barr target his army of prosecutors? The memo mentions only discrimination against “disfavored speech” and “undue interference with the national economy.”
“Disfavored speech” could be anything—maybe a right to “Liberation” protests or even a warning against any state restriction that might prohibit Trump from holding a campaign rally. “Undue interference with the national economy” is similarly both expansive and vague. For starters, how are the lawyers at the Department of Justice supposed to reasonably calculate the national economic consequences of state and local ordinance? The answer, of course, is that they cannot. The only purpose of such a threat is to intimidate lawmakers into not adopting measures that might frustrate or delay Trump’s “open America again” policy.
But the most revealing window into Barr’s intentions is his interview with Hugh Hewitt.
In speaking to Hewitt, Barr articulated a narrow, biased, and highly inaccurate view of the purpose, scope, and efficacy of state stay-at-home and shelter-in-place orders.
According to Barr, the orders were adopted only “for the limited purpose of slowing down the spread, that is bending the curve. We didn’t adopt them as the comprehensive way of dealing with this disease.”
Who says? Weren’t the measures adopted to more broadly stop the virus from killing people? What state declared that the minute the curve flattened, their orders would automatically be rescinded, no matter how many people were still dying?
Barr then declares that that war has been won, and therefore new therapies are needed: “[N]ow is the time that we have to start looking ahead and adjusting to more targeted therapies.”
When and where did Barr get his medical degree? Who made him chief health officer of the United States? Who put him in charge of deciding which therapies are medically indicated, and which go “too far?”
The answer, of course, is precisely: No one. This is far afield of his Constitutional authority.
But it gets worse.
Barr doesn’t merely want to substitute his own views for those of health professionals, he wants to leave it to business executives. Here’s more from his Hewitt interview:
You know, I also think that we have to give businesses more freedom to operate in a way that’s reasonably safe. They know their business. They have the capacity to figure out, as the Marines say, “improvise, adapt, and overcome,” how to conduct their business in a way that’s safe. I think we have to give businesses that opportunity.
These statements of bias from the attorney general would be bad enough because they represent a political, not a legal, opinion. But he wasn’t finished. Barr continues:
I think the president’s guidance has been, as I say, superb and very common sensical, and I think a lot of the governors are following that.
This attorney general has shown, time after time, that he is not a faithful and impartial executor of the laws, but merely the cat’s paw of the president.
And now, in the midst of a pandemic, he is showing it again.


thebulwark--2020-05-03--How Livestreaming Can Help Us Better Understand Church

Church went online in unprecedented numbers in the past few weeks , as thousands of priests , ministers , reverends , and preachers across the United States sought to carry on their Sunday services in some form .
The Church Online Platform , which offers plug-and-play software for church livestreaming , reported on March 17 that more than 6,000 churches had newly signed up during the previous week , with some 4.7 million devices logging on during the first weekend of the U.S. quarantine—a 300 percent increase over the pre-pandemic average .
The streaming volume was so high that the @ @ @ @ @ @ @ So what will happen as the state-imposed sheltering in place loosens and churches begin to reopen their doors ?
Will more people decide to stay home , especially with lingering concerns about infection ?
Will the unprecedented move online have some permanent effect on how people go to church ?
We can find clues by looking back to 2007—the year Amazon introduced the Kindle ebook reader .
Many commentators wondered whether print books would survive .
Four years later , in May 2011 , Amazon reported that ebooks surpassed print books in unit @ @ @ @ @ @ @ and Borders closed .
It seemed that ebooks were bound to take over .
But that didn ’ t happen .
In fact , 2013 seems to have been the high-water mark for ebooks as a percentage of overall book sales .
By early 2017 , ebook sales were falling by double-digit percentages , and reports were out that hardcovers alone had once again surpassed ebooks in unit sales .
Today , some thirteen years after the Kindle ’ s release , ebooks represent roughly 15 percent of all U.S. book sales .
@ @ @ @ @ @ @ early adopters , curious churchgoers , and people forced by circumstances to try the experience .
By fall 2019 , about 22 percent of churches livestreamed their entire service .
Now , the coronavirus pandemic has expanded livestreaming to many more , as church staff have found themselves trying to figure out the details of camera and microphone placement and the technical vagaries of YouTube , Facebook Live , Zoom , and the Church Online Platform .
As the novelty of livestreaming wears off , users will likely settle into a mixed view @ @ @ @ @ @ @ will find it lacking and appreciate in-person church more than ever .
For example , it seems likely that few elderly churchgoers will take to livestreaming .
In normal times , they tend to depend on church for fellowship and spiritual sustenance .
The present pandemic , with its special risk for their health , can be terribly isolating , and the lack of weekly in-person interaction with fellow churchgoers is undoubtedly creating real suffering for many people .
But the elderly are less likely to be able to have the tools and @ @ @ @ @ @ @ church activities , and less likely to find in them the kind of fellowship and consolation they need .
Other churchgoers , though , will likely love the streaming Sunday services now available to them , including especially people with disabilities and others who are homebound .
And members of churches that create compelling and engaging services online may prefer to stick with it long-term .
But enthusiasm for streaming church probably won ’ t be enough to sustain continued widespread adoption after things open back up .
To see why , let @ @ @ @ @ @ @ .
Part of the reason people began buying ebooks is that they were cheaper than print .
When Amazon first released the Kindle , the company sold ebooks for less than $ 10 .
Publishers pushed back , saying that this price was going to kill their ability to continue publishing new books .
Eventually , after the courts settled the dispute , the prices started going up .
Suddenly , print books started to look more appealing again .
For the same price , why not have a nice print edition ?
@ @ @ @ @ @ @ , too .
Even if churchgoers love it , it ’ s not entirely up to them .
Pastors , staff , and other leaders will play big roles in deciding whether and how it continues .
After quarantine livestreaming , some might see the benefits—especially convenience and the evangelistic opportunity of reaching new audiences—and decide to keep doing it .
Others will take issue with online communion ( about which , more in a moment ) , or struggle theologically or relationally with questions of embodiment , or simply be overcome by @ @ @ @ @ @ @ only worth doing under extreme circumstances .
Either way , the future of church livestreams will be negotiated between congregations and their leaders , and influenced by the strengths and weaknesses of their technologies .
No one should be surprised if we see post-pandemic churches livestreaming at higher rates than before the crisis but lower than today .
Like a mirror , online church reflects certain aspects of church “ IRL ” —church “ in real life.
” But it ’ s more like a funhouse mirror , accentuating some aspects while obscuring @ @ @ @ @ @ @ us to see the gathered church more clearly .
Pastors and congregations are already beginning to .
You hear it in the Zoom calls friends and church leaders are having .
You read it in the articles writers are publishing , and in the posts and comments on social media .
More and more , people are recognizing and articulating church IRL ’ s benefits .
They ’ re making those benefits conscious , visible .
While scholars debate the many nuances of mediated communication , churchgoers feel them .
In moments of @ @ @ @ @ @ @ difficulties .
Just when we ’ re caught up in the rhythms of liturgy and singing , we encounter the whiplash of a buffering circle .
Isolation clings to the edges of our Sunday services .
Tables set with bread and wine are now cluttered with tablets and cameras and keyboards and power cords .
A common collection of artifacts and icons once inhabited a familiar , unified space .
Feeling some disorientation is understandable .
But it ’ s not terminal .
Tracing out these once-straight lines in their digitized , reconstituted @ @ @ @ @ @ @ example of ebooks can be instructive .
Ebooks helped us realize that reading is about more than just absorbing information .
It ’ s also about engaging and experiencing .
People began to nostalgically invoke the feel of print books , even to the point of fetishizing them .
They began to rhapsodize about the smell and texture of the ink and paper .
They waxed eloquent about writing notes in the margins , or finding old notes—or yellowed newspaper clippings or other ephemera—in used copies .
They appreciated the book ’ s @ @ @ @ @ @ @ it back up .
Print lovers even resorted to brain science to talk about spatial memory , concentration , and remembering a story ’ s chronology .
Much as ebooks have shown us what we love about print books—and led us to accentuate and savor those features a little bit more—church livestreaming may help us do the same for church IRL .
Church livestreaming reminds us that church IRL is about more than just absorbing a sermon .
Church IRL is about more than the pastor up front .
It ’ s also @ @ @ @ @ @ @ .
Church encounters don ’ t just include the friends and family we sit with—but also the strangers sitting down the row , or the lone person who quietly slips in the back .
We knew that before .
We know it now more consciously , more intimately .
With ebooks , we started to realize that ereaders don ’ t just replace books but also bookshelves , those most useful items of furniture—and status symbols—that guests can browse and by which acquaintances can become friends .
A print book , with its @ @ @ @ @ @ @ the cover , can become a conversation starter in coffee shops and airports in a way that secretive ebooks can not .
They even become a form of exchange and self-disclosure , creating a market for sharing , trading , and reselling .
Church livestreaming encourages us to focus on existing friends , the people we like .
Church IRL doesn ’ t let us off so easy .
Gathered in one place , we encounter not just those we reach out to , but those who reach out to us .
Sometimes @ @ @ @ @ @ @ Sometimes we need them to .
And sometimes they reach out when we wish they didn ’ t , which is good for our souls , too .
Even at its best , livestreaming makes the stranger invisible , the chance encounter impossible , and the annoying acquaintance avoidable .
Livestreaming is showing us how important such inconveniences are .
Readers weren ’ t the only ones rediscovering print books ’ advantages .
Publishers were too .
They started banking on the pleasure of print books .
Remember the coloring-book craze of 2015 @ @ @ @ @ @ @ not provide .
The physicality of it .
The immersive focus and attention it required .
Publishers and book-buyers fed off each other as coloring books found new reception in non-bookstores like Hobby Lobby , Michael ’ s , and Joann Fabrics .
Pastors and church leaders can take a cue from these publishers .
What services look like , both online and in-person , can be better in the future—if pastors are willing to listen and learn , discuss and discern .
The sudden widespread experience of online church means a variety @ @ @ @ @ @ @ talking together , pastors , congregations , sociologists , and theologians can find forms of “ digital church ” that will serve the universal church in the centuries to come .
These discussions have been happening for years already , but now have a new immediacy .
They are complicated by the great variety of differing practices among Christian denominations .
( John Dyer offers helpful primers on two of the most difficult subjects , communion and baptism , and how differing Christian practices could shake out .
For example , while online @ @ @ @ @ @ @ is not difficult to imagine some American evangelical traditions accepting a “ memorialist , ” symbolic online communion . )
We may find that thinking more deeply about these questions will challenge church IRL to more deeply reflect on the meaning of human bodies , the words of Jesus and Paul , and the power and role of the Holy Spirit .
Church IRL is about more than watching from a distance .
It ’ s about coming near .
It ’ s about more than listening to the music , but about @ @ @ @ @ @ @ .
And it ’ s about hearing the voices of others .
In my church every Sunday , I see a young man with Down syndrome .
He sits across the aisle near the front .
And he wholeheartedly participates body , soul , and voice .
He drums his hands and bobs his head in time with the drummer on stage .
He sings the quieter songs at a volume that often rises above others ’ and is occasionally very out of tune .
He dances and jumps up and down .
@ @ @ @ @ @ @ a voice that reaches every ear .
Each Sunday , no matter whether I am feeling joy or heartache , lament or celebration , my heart is lifted by his presence and participation I know I am not the only one .
For now , though , I miss the way his worship inspires my own .
My gaze is directed by the camera operator alone .
Church livestreaming , for all its technical features , will struggle to open our hearts to grace like this .
Even so , in this moment @ @ @ @ @ @ @ energy animating churches around the globe inspires me and gives me hope .
Most of all , I am excited for how our collective experiences with church livestreaming will hold up a mirror for churches “ in real life ” to see what they ’ re doing in a new light .

Church went online in unprecedented numbers in the past few weeks, as thousands of priests, ministers, reverends, and preachers across the United States sought to carry on their Sunday services in some form. The Church Online Platform, which offers plug-and-play software for church livestreaming, reported on March 17 that more than 6,000 churches had newly signed up during the previous week, with some 4.7 million devices logging on during the first weekend of the U.S. quarantine—a 300 percent increase over the pre-pandemic average. The streaming volume was so high that the platform reported outages during subsequent weekends.
So what will happen as the state-imposed sheltering in place loosens and churches begin to reopen their doors? Will more people decide to stay home, especially with lingering concerns about infection? Will the unprecedented move online have some permanent effect on how people go to church?
We can find clues by looking back to 2007—the year Amazon introduced the Kindle ebook reader. Many commentators wondered whether print books would survive.
Four years later, in May 2011, Amazon reported that ebooks surpassed print books in unit sales. Bookstore chains like B. Dalton and Borders closed. It seemed that ebooks were bound to take over.
But that didn’t happen. In fact, 2013 seems to have been the high-water mark for ebooks as a percentage of overall book sales. By early 2017, ebook sales were falling by double-digit percentages, and reports were out that hardcovers alone had once again surpassed ebooks in unit sales. Today, some thirteen years after the Kindle’s release, ebooks represent roughly 15 percent of all U.S. book sales.
Livestream Goes Mainstream
Like ebooks, church livestreaming first attracted early adopters, curious churchgoers, and people forced by circumstances to try the experience. By fall 2019, about 22 percent of churches livestreamed their entire service. Now, the coronavirus pandemic has expanded livestreaming to many more, as church staff have found themselves trying to figure out the details of camera and microphone placement and the technical vagaries of YouTube, Facebook Live, Zoom, and the Church Online Platform.
As the novelty of livestreaming wears off, users will likely settle into a mixed view of streaming church services. Some people will find it lacking and appreciate in-person church more than ever. For example, it seems likely that few elderly churchgoers will take to livestreaming. In normal times, they tend to depend on church for fellowship and spiritual sustenance. The present pandemic, with its special risk for their health, can be terribly isolating, and the lack of weekly in-person interaction with fellow churchgoers is undoubtedly creating real suffering for many people. But the elderly are less likely to be able to have the tools and the knowledge necessary to participate in online church activities, and less likely to find in them the kind of fellowship and consolation they need.
Podcast · August 15 2023 A.B. Stoddard: All the Ex-President’s Conspirators Donald Trump has been a low-rent mobster for his entire career, and now he’s getting…
Other churchgoers, though, will likely love the streaming Sunday services now available to them, including especially people with disabilities and others who are homebound. And members of churches that create compelling and engaging services online may prefer to stick with it long-term. But enthusiasm for streaming church probably won’t be enough to sustain continued widespread adoption after things open back up. To see why, let’s return to the ebook story.
Part of the reason people began buying ebooks is that they were cheaper than print. When Amazon first released the Kindle, the company sold ebooks for less than $10. Publishers pushed back, saying that this price was going to kill their ability to continue publishing new books. Eventually, after the courts settled the dispute, the prices started going up. Suddenly, print books started to look more appealing again. For the same price, why not have a nice print edition?
Something similar may happen for church livestreams, too. Even if churchgoers love it, it’s not entirely up to them. Pastors, staff, and other leaders will play big roles in deciding whether and how it continues. After quarantine livestreaming, some might see the benefits—especially convenience and the evangelistic opportunity of reaching new audiences—and decide to keep doing it. Others will take issue with online communion (about which, more in a moment), or struggle theologically or relationally with questions of embodiment, or simply be overcome by technical hurdles, and decide livestreaming is only worth doing under extreme circumstances. Either way, the future of church livestreams will be negotiated between congregations and their leaders, and influenced by the strengths and weaknesses of their technologies. No one should be surprised if we see post-pandemic churches livestreaming at higher rates than before the crisis but lower than today.
Mirroring the Church
Like a mirror, online church reflects certain aspects of church “IRL”—church “in real life.” But it’s more like a funhouse mirror, accentuating some aspects while obscuring others. This livestream reflection can help us to see the gathered church more clearly.
Pastors and congregations are already beginning to. You hear it in the Zoom calls friends and church leaders are having. You read it in the articles writers are publishing, and in the posts and comments on social media. More and more, people are recognizing and articulating church IRL’s benefits. They’re making those benefits conscious, visible.
While scholars debate the many nuances of mediated communication, churchgoers feel them. In moments of vulnerability, we are detoured by technical difficulties. Just when we’re caught up in the rhythms of liturgy and singing, we encounter the whiplash of a buffering circle. Isolation clings to the edges of our Sunday services. Tables set with bread and wine are now cluttered with tablets and cameras and keyboards and power cords. A common collection of artifacts and icons once inhabited a familiar, unified space.
Feeling some disorientation is understandable. But it’s not terminal. Tracing out these once-straight lines in their digitized, reconstituted form takes time.
Again, the example of ebooks can be instructive. Ebooks helped us realize that reading is about more than just absorbing information. It’s also about engaging and experiencing. People began to nostalgically invoke the feel of print books, even to the point of fetishizing them. They began to rhapsodize about the smell and texture of the ink and paper. They waxed eloquent about writing notes in the margins, or finding old notes—or yellowed newspaper clippings or other ephemera—in used copies. They appreciated the book’s physical presence reminding them regularly to pick it back up. Print lovers even resorted to brain science to talk about spatial memory, concentration, and remembering a story’s chronology.
Much as ebooks have shown us what we love about print books—and led us to accentuate and savor those features a little bit more—church livestreaming may help us do the same for church IRL. Church livestreaming reminds us that church IRL is about more than just absorbing a sermon. Church IRL is about more than the pastor up front. It’s also about engaging with the people around us. Church encounters don’t just include the friends and family we sit with—but also the strangers sitting down the row, or the lone person who quietly slips in the back. We knew that before. We know it now more consciously, more intimately.
With ebooks, we started to realize that ereaders don’t just replace books but also bookshelves, those most useful items of furniture—and status symbols—that guests can browse and by which acquaintances can become friends. A print book, with its title emblazoned along the spine and on the cover, can become a conversation starter in coffee shops and airports in a way that secretive ebooks cannot. They even become a form of exchange and self-disclosure, creating a market for sharing, trading, and reselling.
Church livestreaming encourages us to focus on existing friends, the people we like. Church IRL doesn’t let us off so easy. Gathered in one place, we encounter not just those we reach out to, but those who reach out to us. Sometimes we want them to reach out. Sometimes we need them to. And sometimes they reach out when we wish they didn’t, which is good for our souls, too. Even at its best, livestreaming makes the stranger invisible, the chance encounter impossible, and the annoying acquaintance avoidable. Livestreaming is showing us how important such inconveniences are.
Readers weren’t the only ones rediscovering print books’ advantages. Publishers were too. They started banking on the pleasure of print books. Remember the coloring-book craze of 2015? Coloring was an experience ebooks could not provide. The physicality of it. The immersive focus and attention it required. Publishers and book-buyers fed off each other as coloring books found new reception in non-bookstores like Hobby Lobby, Michael’s, and Joann Fabrics.
Pastors and church leaders can take a cue from these publishers. What services look like, both online and in-person, can be better in the future—if pastors are willing to listen and learn, discuss and discern. The sudden widespread experience of online church means a variety of trials and errors, and by talking together, pastors, congregations, sociologists, and theologians can find forms of “digital church” that will serve the universal church in the centuries to come.
These discussions have been happening for years already, but now have a new immediacy. They are complicated by the great variety of differing practices among Christian denominations. (John Dyer offers helpful primers on two of the most difficult subjects, communion and baptism, and how differing Christian practices could shake out. For example, while online communion is impossible for Catholics, it is not difficult to imagine some American evangelical traditions accepting a “memorialist,” symbolic online communion.) We may find that thinking more deeply about these questions will challenge church IRL to more deeply reflect on the meaning of human bodies, the words of Jesus and Paul, and the power and role of the Holy Spirit.
Church IRL is about more than watching from a distance. It’s about coming near. It’s about more than listening to the music, but about joining and singing with our own voices. And it’s about hearing the voices of others. In my church every Sunday, I see a young man with Down syndrome. He sits across the aisle near the front. And he wholeheartedly participates body, soul, and voice. He drums his hands and bobs his head in time with the drummer on stage. He sings the quieter songs at a volume that often rises above others’ and is occasionally very out of tune. He dances and jumps up and down. He shouts “Alleluia!” in a voice that reaches every ear. Each Sunday, no matter whether I am feeling joy or heartache, lament or celebration, my heart is lifted by his presence and participation I know I am not the only one. For now, though, I miss the way his worship inspires my own. My gaze is directed by the camera operator alone.
Church livestreaming, for all its technical features, will struggle to open our hearts to grace like this. Even so, in this moment of anxiety and danger, the creative energy animating churches around the globe inspires me and gives me hope. Most of all, I am excited for how our collective experiences with church livestreaming will hold up a mirror for churches “in real life” to see what they’re doing in a new light.


thebulwark--2020-05-03--Constitutional Stupidity, Constitutional Tragedy

As some Republicans begin to complain about restrictions on liberty , with the attorney general of the United States saying that stay-at-home orders are “ disturbingly close to house arrest ” and armed protests at Michigan ’ s state Capitol , it ’ s worthwhile to return to a century-old Supreme Court case , Lochner v. New York .
Decided in 1905 , the case struck down a maximum-hours law aimed at bakers .
Conservatives such as Justice Scalia loathed Lochner for protecting a right—the liberty of contract—that was not clearly named in the Constitution .
Progressives saw the Lochner @ @ @ @ @ @ @ states with regard to maximum hours and minimum wage laws .
There is today an ongoing debate about the legitimacy of Lochner , including within originalist circles .
Yet whatever we think of the legitimacy of Lochner , it ’ s incredibly useful in illuminating the nature and logic of the police powers of the states .
While insisting on a broad understanding of “ the liberty of the individual protected by the Fourteenth Amendment , ” the Lochner Court nevertheless recognized that liberty was subject to regulation for legitimate public purposes .
@ @ @ @ @ @ @ powers , the states have wide latitude to regulate for the “ safety , health , morals , and general welfare of the public.
” The Court acknowledged , as it did long before and has long after , that the police powers are somewhat vaguely defined .
But even from an expansive understanding of liberty , the key question is whether the law or regulation at issue is plainly adapted to a legitimate public purpose .
In Lochner , the Court was skeptical that regulating “ the hours of labor in the @ @ @ @ @ @ @ treating bakers in a manner different from the printer , carpenter , or clerk , was plainly adapted to legitimate concerns of safety , health , morals , or public welfare .
Why bakers ?
What is the connection between the hours the baker works and “ the healthful quality of the bread ” he makes ?
Justice John Marshall Harlan , the great dissenter from Plessy v. Ferguson , also dissented in Lochner , urging that the regulation could be upheld “ to protect the physical well-being of those who work in @ @ @ @ @ @ @ months before Lochner was handed down , Justice Harlan wrote an opinion in Jacobson v. Massachusetts that upheld a state law allowing local authorities to require vaccinations .
Against an outbreak of smallpox , the city of Cambridge required such vaccinations .
The Court , recognizing “ liberty itself ” as “ the greatest of all rights , ” nevertheless insisted that it does not include “ an absolute right in each person ” to be “ wholly freed from restraint.
” The “ safety of the general public ” may demand regulations @ @ @ @ @ @ @ .
All the more so “ against an epidemic of disease which threatens the safety of its members.
” Indeed , an epidemic might justify regulations we would not ordinarily tolerate if the public health and safety required it .
As the Court recognized in both Jacobson and Lochner , such a power could be abused .
Under the guise of regulating for the public welfare—say , preventing the spread of COVID-19—a state might reach into areas that have nothing to do with preventing the spread of disease .
We should be concerned @ @ @ @ @ @ @ liberty or treats similarly situated persons or businesses in an arbitrary manner .
And certainly , tracking the spread of COVID-19 could be used to track individuals for illicit purposes .
Such regulations are constitutionally problematic .
Consider the classic Supreme Court case along these lines : Yick Wo v. Hopkins ( 1886 ) .
At issue was a seemingly benign San Francisco city ordinance that allowed laundries housed in brick or stone buildings to operate without restrictions , while requiring that laundries operating out of wooden buildings be licensed .
( The @ @ @ @ @ @ @ fires . )
Just a year before , the Court had upheld the regulation of business hours in laundries as a legitimate health and safety measure , also out of concern for fire hazard .
But the San Francisco statute seemed to have been inspired by other motives : It turned out that the laundry licensing board , with no explanation , granted permits to laundries operating in wood structures when the applicants were white—but denied them when the applicants were Chinese .
Under the guise of public-safety regulations , the city was @ @ @ @ @ @ @ in a wholly arbitrary manner against laundries owned and operated by Chinese immigrants .
The Court ruled unanimously in Yick Wo ’ s favor : A putative regulation of public safety had been implemented for no other practical reason than “ hostility to the race and nationality ” of the petitioners , rendering it an arbitrary and unjustified regulation in “ the eye of the law.
” Incidentally , Yick Wo was a legal resident , not a citizen—but he still had constitutional rights .
None of this is to defend every city @ @ @ @ @ @ @ .
There are real questions of overreach .
Yet there ’ s no question the states have the power to regulate in sweeping ways for the public health .
Even the robust sense of liberty articulated by the Lochner Court recognized this in no uncertain terms .
The attorney general ’ s instruction to his department to be on the lookout for city and state regulations that violate civil liberties would be easier to accept as primarily being about the law had he shown any concern for legal and constitutional violations by the @ @ @ @ @ @ @ take a closer look at the president .
Trump ’ s constitutional stupidity is beyond having to demonstrate at this point .
It has done real damage to American constitutionalism over the last three years .
But with COVID-19 Trump ’ s constitutional stupidity has helped exacerbate tragedy .

As some Republicans begin to complain about restrictions on liberty, with the attorney general of the United States saying that stay-at-home orders are “disturbingly close to house arrest” and armed protests at Michigan’s state Capitol, it’s worthwhile to return to a century-old Supreme Court case, Lochner v. New York.
Decided in 1905, the case struck down a maximum-hours law aimed at bakers. Conservatives such as Justice Scalia loathed Lochner for protecting a right—the liberty of contract—that was not clearly named in the Constitution. Progressives saw the Lochner decision as hindering legitimate regulations by the states with regard to maximum hours and minimum wage laws.
There is today an ongoing debate about the legitimacy of Lochner, including within originalist circles.
Yet whatever we think of the legitimacy of Lochner, it’s incredibly useful in illuminating the nature and logic of the police powers of the states.
Podcast · August 15 2023 A.B. Stoddard: All the Ex-President’s Conspirators Donald Trump has been a low-rent mobster for his entire career, and now he’s getting…
While insisting on a broad understanding of “the liberty of the individual protected by the Fourteenth Amendment,” the Lochner Court nevertheless recognized that liberty was subject to regulation for legitimate public purposes.
Under what have been termed the police powers, the states have wide latitude to regulate for the “safety, health, morals, and general welfare of the public.”
The Court acknowledged, as it did long before and has long after, that the police powers are somewhat vaguely defined. But even from an expansive understanding of liberty, the key question is whether the law or regulation at issue is plainly adapted to a legitimate public purpose. In Lochner, the Court was skeptical that regulating “the hours of labor in the occupation of a baker,” and treating bakers in a manner different from the printer, carpenter, or clerk, was plainly adapted to legitimate concerns of safety, health, morals, or public welfare.
Why bakers? What is the connection between the hours the baker works and “the healthful quality of the bread” he makes? Justice John Marshall Harlan, the great dissenter from Plessy v. Ferguson, also dissented in Lochner, urging that the regulation could be upheld “to protect the physical well-being of those who work in bakery and confectionery establishments.”
Just two months before Lochner was handed down, Justice Harlan wrote an opinion in Jacobson v. Massachusetts that upheld a state law allowing local authorities to require vaccinations. Against an outbreak of smallpox, the city of Cambridge required such vaccinations. The Court, recognizing “liberty itself” as “the greatest of all rights,” nevertheless insisted that it does not include “an absolute right in each person” to be “wholly freed from restraint.” The “safety of the general public” may demand regulations of liberty with regard to public health. All the more so “against an epidemic of disease which threatens the safety of its members.” Indeed, an epidemic might justify regulations we would not ordinarily tolerate if the public health and safety required it.
As the Court recognized in both Jacobson and Lochner, such a power could be abused. Under the guise of regulating for the public welfare—say, preventing the spread of COVID-19—a state might reach into areas that have nothing to do with preventing the spread of disease. We should be concerned with such overreach, which threatens individual liberty or treats similarly situated persons or businesses in an arbitrary manner.
And certainly, tracking the spread of COVID-19 could be used to track individuals for illicit purposes. Such regulations are constitutionally problematic. Consider the classic Supreme Court case along these lines: Yick Wo v. Hopkins (1886).
At issue was a seemingly benign San Francisco city ordinance that allowed laundries housed in brick or stone buildings to operate without restrictions, while requiring that laundries operating out of wooden buildings be licensed. (The idea being to reduce the potential for fires.)
Just a year before, the Court had upheld the regulation of business hours in laundries as a legitimate health and safety measure, also out of concern for fire hazard. But the San Francisco statute seemed to have been inspired by other motives: It turned out that the laundry licensing board, with no explanation, granted permits to laundries operating in wood structures when the applicants were white—but denied them when the applicants were Chinese. Under the guise of public-safety regulations, the city was in fact using the ordinance to discriminate in a wholly arbitrary manner against laundries owned and operated by Chinese immigrants.
The Court ruled unanimously in Yick Wo’s favor: A putative regulation of public safety had been implemented for no other practical reason than “hostility to the race and nationality” of the petitioners, rendering it an arbitrary and unjustified regulation in “the eye of the law.” Incidentally, Yick Wo was a legal resident, not a citizen—but he still had constitutional rights.
None of this is to defend every city or state ordinance with regard to COVID-19. There are real questions of overreach. Yet there’s no question the states have the power to regulate in sweeping ways for the public health. Even the robust sense of liberty articulated by the Lochner Court recognized this in no uncertain terms.
The attorney general’s instruction to his department to be on the lookout for city and state regulations that violate civil liberties would be easier to accept as primarily being about the law had he shown any concern for legal and constitutional violations by the administration he serves.
Perhaps he should take a closer look at the president. Trump’s constitutional stupidity is beyond having to demonstrate at this point. It has done real damage to American constitutionalism over the last three years. But with COVID-19 Trump’s constitutional stupidity has helped exacerbate tragedy.


thebulwark--2020-05-04--Forget Competence, Trump Wants Loyalty

Forget Competence, Trump Wants Loyalty

This is a sad tale of three nondescript federal agencies .
But it could end with obliteration of the legitimacy of the federal government as we know it .
The United States government has approximately 2 million full-time employees , excluding uniformed military personnel and U.S .
Postal Service workers .
Like any large employer , the feds have a human resources agency that deals with health and retirement benefits for federal employees , among other important issues .
It ’ s called the Office of Personnel Management ( OPM ) .
Yet like much else in the executive branch @ @ @ @ @ @ @ professional way before Donald Trump took office , OPM is being brutally politicized to rid suspected “ Never Trumpers ” of their career positions .
Federal workers and their families—as well as the public they serve—will lose as a result .
Some background : OPM is an “ independent establishment ” created by Congress and housed within the executive branch .
It is headed by an acting director , Michael Rigas , who took over in March .
His predecessor at OPM , Dale Cabaniss , suddenly stepped down after she served only @ @ @ @ @ @ @ one week after Rigas was put in charge of OPM , he was also was tapped to serve simultaneously as the acting deputy director for management of the Office of Management and Budget ( OMB ) .
OMB is an office within the White House that prepares the president ’ s budget ; its mission is to “ assist the President in meeting his policy , budget , management and regulatory objectives and to fulfill the agency ’ s statutory responsibilities.
” ( You may recall when OMB was last in the headlines @ @ @ @ @ @ @ it broke the law by withholding hundreds of millions of dollars appropriated to the Department of Defense for security assistance to Ukraine in the summer of 2019 . )
The third government agency in this story is the Presidential Personnel Office ( PPO ) .
Also lodged in the White House bureaucracy , the PPO vets new appointees and candidates for White House positions—approximately 4,000 in total , of which about 1,600 are subject to Senate approval .
In 2018 , an investigation by the Washington Post revealed that the Trump PPO was @ @ @ @ @ @ @ , some with little professional experience apart from their work on Trump ’ s campaign , ” including “ a college dropout with arrests for drunken driving and bad checks and a Marine Corps reservist with arrests for assault , disorderly conduct , fleeing an officer and underage drinking.
” In February , Trump installed John McEntee , 29 , as the new director of the PPO .
McEntee has been involved in Trump world since 2015 .
Before joining the Trump campaign as a volunteer , he had been the starting quarterback @ @ @ @ @ @ @ his trick shots went viral—and he later worked at Fox News .
After the 2016 election , McEntee became Trump ’ s personal assistant—but in 2018 he was fired by then-chief of staff John Kelly and escorted out of the White House after being denied a security clearance reportedly due to problems related to online gambling and his taxes .
Within 24 hours , he was rehired to Trump ’ s reelection campaign as a senior adviser for campaign operations .
But with Kelly long gone , McEntee was brought back into government @ @ @ @ @ @ @ the PPO , McEntee hired a college senior , James Bacon , 23 , to serve alongside him .
Bacon previously worked for McEntee on the president ’ s reelection campaign .
McEntee has initiated a Never Trump witch hunt .
According to Politico , he held a meeting on February 20 “ with White House liaisons of Cabinet departments where he asked officials to find Trump appointees who may be anti-Trump , according to an administration official familiar with the meeting.
” He also reportedly “ told them that PPO was going @ @ @ @ @ @ @ at some point and re-vet them to see if they ’ ve been disloyal in any way.
” While dramatic changes are “ likely to be delayed until after November , ” McEntee reportedly warned the agencies “ to stop moving around officials who are viewed as anti-Trump to other agencies.
” So how do the political happenings at OPM , OMB , and PPO come together ?
McEntee is reportedly behind the resignation of Dale Cabaniss from the directorship of OPM .
She had been confirmed by a 54-38 vote on September @ @ @ @ @ @ @ did not serve in that position merely in an “ acting ” capacity since July 2015 .
She resigned in the midst of the coronavirus crisis , Politico reported , “ because of , what two people familiar with the matter said , was poor treatment , ” most notably from McEntee .
Around the same time Cabaniss quit as director , OPM ’ s then-chief of staff , Jonathan Blyth , was also moved out of his position , reportedly “ reflect [ ing ] McEntee ’ s growing clout within the @ @ @ @ @ @ @ of the conservative Heritage Foundation who replaced Cabaniss , OPM has refused to brief numerous congressional committees on the status of the agency and its handling of federal workers during the coronavirus outbreak .
“ We ’ ve never been denied a briefing like this before , ” a Senate aide told Politico .
Rigas has also reportedly told others at the agency “ that he questions the constitutionality of the 1883 Pendleton Act .
.
.
and believes that all executive branch employees should be political appointees.
” The Pendleton Civil Service @ @ @ @ @ @ @ assassination of newly inaugurated President James A. Garfield , who , while boarding a train in Washington , D.C. , was shot by Charles Guiteau—a stalker who had been denied a political appointment .
The statute was designed to remedy the “ spoils system ” under which civil-service jobs were awarded to loyalists , supporters , and friends .
The Pendleton Act established a system of federal hiring based on merit rather than political affiliation , and has become a hallmark of good government in America .
The law made it illegal to @ @ @ @ @ @ @ barred solicitations of campaign dollars on federal government property , and allowed the president to carve out particular positions for political appointments , among other reforms .
The dismantling of the Pendleton Act has already begun .
On April 22 , for example , Dr. Rick Bright was dismissed as the director of the Biomedical Advanced Research and Development Authority ( BARDA , a division of the Department of Health and Human Services , HHS ) and deputy assistant secretary of HHS for preparedness and response .
He said in a statement that @ @ @ @ @ @ @ refusal to direct money to Trump ’ s COVID-19 drug of choice , hydroxychloroquine , one of several “ potentially dangerous drugs promoted by those with political connections.
” Meanwhile , under Rigas ’ s dual-management posture , OMB effectively supplanted OPM as the agency issuing policy memos relating to the federal workforce and the coronavirus , beginning in March .
Rep. Gerry Connolly ( D-Va. ) , who chairs a government operations subcommittee that oversees OPM , complained that “ the Trump administration ’ s mismanagement and political appointees have once again @ @ @ @ @ @ @ ” when “ at the very moment we need OPM to operate smoothly and efficiently , including expanding telework for all eligible workers and contractors , we are instead faced with uncertainty that threatens to paralyze this agency.
” What is at stake here is the politicization of the federal workforce to the detriment of science , the public interest , and basic competence in government .
Not to mention the health and well-being of federal employees who continue to work amid the pandemic , as well as the soundness of national policy @ @ @ @ @ @ @ vital services are performed on behalf of the American people .
A day of reckoning is coming for Trump and his cronies for catastrophically disavowing and botching the federal government ’ s handling of the COVID-19 pandemic that has already claimed over 67,000 lives in the United States .
November is a time for holding the president and his political appointees accountable at the ballot box , and to bring to an end his corrosion of our system of laws , norms , professional civil service , and law enforcement .

This is a sad tale of three nondescript federal agencies. But it could end with obliteration of the legitimacy of the federal government as we know it.
The United States government has approximately 2 million full-time employees, excluding uniformed military personnel and U.S. Postal Service workers. Like any large employer, the feds have a human resources agency that deals with health and retirement benefits for federal employees, among other important issues. It’s called the Office of Personnel Management (OPM).
Yet like much else in the executive branch that worked in a fairly measured and professional way before Donald Trump took office, OPM is being brutally politicized to rid suspected “Never Trumpers” of their career positions. Federal workers and their families—as well as the public they serve—will lose as a result.
Some background: OPM is an “independent establishment” created by Congress and housed within the executive branch. It is headed by an acting director, Michael Rigas, who took over in March. His predecessor at OPM, Dale Cabaniss, suddenly stepped down after she served only six months on the job.
Just one week after Rigas was put in charge of OPM, he was also was tapped to serve simultaneously as the acting deputy director for management of the Office of Management and Budget (OMB). OMB is an office within the White House that prepares the president’s budget; its mission is to “assist the President in meeting his policy, budget, management and regulatory objectives and to fulfill the agency’s statutory responsibilities.” (You may recall when OMB was last in the headlines for a major political mess: When it broke the law by withholding hundreds of millions of dollars appropriated to the Department of Defense for security assistance to Ukraine in the summer of 2019.)
The third government agency in this story is the Presidential Personnel Office (PPO). Also lodged in the White House bureaucracy, the PPO vets new appointees and candidates for White House positions—approximately 4,000 in total, of which about 1,600 are subject to Senate approval. In 2018, an investigation by the Washington Post revealed that the Trump PPO was staffed with people “in their 20s, some with little professional experience apart from their work on Trump’s campaign,” including “a college dropout with arrests for drunken driving and bad checks and a Marine Corps reservist with arrests for assault, disorderly conduct, fleeing an officer and underage drinking.”
In February, Trump installed John McEntee, 29, as the new director of the PPO. McEntee has been involved in Trump world since 2015. Before joining the Trump campaign as a volunteer, he had been the starting quarterback for the UConn Huskies—where a video of his trick shots went viral—and he later worked at Fox News. After the 2016 election, McEntee became Trump’s personal assistant—but in 2018 he was fired by then-chief of staff John Kelly and escorted out of the White House after being denied a security clearance reportedly due to problems related to online gambling and his taxes. Within 24 hours, he was rehired to Trump’s reelection campaign as a senior adviser for campaign operations. But with Kelly long gone, McEntee was brought back into government earlier this year. Since taking over the PPO, McEntee hired a college senior, James Bacon, 23, to serve alongside him. Bacon previously worked for McEntee on the president’s reelection campaign.
McEntee has initiated a Never Trump witch hunt. According to Politico, he held a meeting on February 20 “with White House liaisons of Cabinet departments where he asked officials to find Trump appointees who may be anti-Trump, according to an administration official familiar with the meeting.” He also reportedly “told them that PPO was going to take a look at all appointees at some point and re-vet them to see if they’ve been disloyal in any way.” While dramatic changes are “likely to be delayed until after November,” McEntee reportedly warned the agencies “to stop moving around officials who are viewed as anti-Trump to other agencies.”
Podcast · August 15 2023 A.B. Stoddard: All the Ex-President’s Conspirators Donald Trump has been a low-rent mobster for his entire career, and now he’s getting…
So how do the political happenings at OPM, OMB, and PPO come together?
McEntee is reportedly behind the resignation of Dale Cabaniss from the directorship of OPM. She had been confirmed by a 54-38 vote on September 11, 2019—only the second person who did not serve in that position merely in an “acting” capacity since July 2015. She resigned in the midst of the coronavirus crisis, Politico reported, “because of, what two people familiar with the matter said, was poor treatment,” most notably from McEntee. Around the same time Cabaniss quit as director, OPM’s then-chief of staff, Jonathan Blyth, was also moved out of his position, reportedly “reflect[ing] McEntee’s growing clout within the administration.”
Under Rigas, an alumnus of the conservative Heritage Foundation who replaced Cabaniss, OPM has refused to brief numerous congressional committees on the status of the agency and its handling of federal workers during the coronavirus outbreak. “We’ve never been denied a briefing like this before,” a Senate aide told Politico.
Rigas has also reportedly told others at the agency “that he questions the constitutionality of the 1883 Pendleton Act . . . and believes that all executive branch employees should be political appointees.” The Pendleton Civil Service Reform Act was passed after the revenge assassination of newly inaugurated President James A. Garfield, who, while boarding a train in Washington, D.C., was shot by Charles Guiteau—a stalker who had been denied a political appointment. The statute was designed to remedy the “spoils system” under which civil-service jobs were awarded to loyalists, supporters, and friends.
The Pendleton Act established a system of federal hiring based on merit rather than political affiliation, and has become a hallmark of good government in America. The law made it illegal to fire government officials for political reasons, barred solicitations of campaign dollars on federal government property, and allowed the president to carve out particular positions for political appointments, among other reforms.
The dismantling of the Pendleton Act has already begun.
On April 22, for example, Dr. Rick Bright was dismissed as the director of the Biomedical Advanced Research and Development Authority (BARDA, a division of the Department of Health and Human Services, HHS) and deputy assistant secretary of HHS for preparedness and response. He said in a statement that his dismissal was a result of his refusal to direct money to Trump’s COVID-19 drug of choice, hydroxychloroquine, one of several “potentially dangerous drugs promoted by those with political connections.”
Meanwhile, under Rigas’s dual-management posture, OMB effectively supplanted OPM as the agency issuing policy memos relating to the federal workforce and the coronavirus, beginning in March. Rep. Gerry Connolly (D-Va.), who chairs a government operations subcommittee that oversees OPM, complained that “the Trump administration’s mismanagement and political appointees have once again brought chaos to the federal workforce,” when “at the very moment we need OPM to operate smoothly and efficiently, including expanding telework for all eligible workers and contractors, we are instead faced with uncertainty that threatens to paralyze this agency.”
What is at stake here is the politicization of the federal workforce to the detriment of science, the public interest, and basic competence in government. Not to mention the health and well-being of federal employees who continue to work amid the pandemic, as well as the soundness of national policy for reopening the government to ensure that vital services are performed on behalf of the American people.
A day of reckoning is coming for Trump and his cronies for catastrophically disavowing and botching the federal government’s handling of the COVID-19 pandemic that has already claimed over 67,000 lives in the United States. November is a time for holding the president and his political appointees accountable at the ballot box, and to bring to an end his corrosion of our system of laws, norms, professional civil service, and law enforcement.


thebulwark--2020-05-04--How a Billionaire Could Guarantee Vote-By-Mail

For the last several weeks , I ’ ve been debating whether President Trump ’ s response to the coronavirus pandemic has been mendacious or simply foolish .
But why can ’ t it be both ?
Having learned nothing from his disastrous run-up to America ’ s pandemic meltdown , he now proposes to do the same thing to the presidential election .
President Trump is dead set against doing anything to encourage voting by mail in November .
“ I think a lot of people cheat with mail-in voting , ” he said last month .
“ I @ @ @ @ @ @ @ voter ID .
I think voter ID is very important , and the reason they don ’ t want voter ID is because they intend to cheat .
.
.
.
It shouldn ’ t be mail-in voting .
It should be you go to a booth and you proudly display yourself .
You don ’ t send it in the mail where people can pick up—all sorts of bad things can happen .
.
.
by the time it gets in and is tabulated.
” This is , of course , complete @ @ @ @ @ @ @ common .
In five states—Washington , Colorado , Utah , Oregon , and Hawaii—all voting is now by mail .
But even in many states where in-person voting is the default , anyone who wants to vote by mail can do so .
In California about two-thirds of all votes are cast that way .
Nor is voting by mail controversial .
In a recent poll , 72 percent of Americans considered conducting the November election by mail a good idea .
Of course , Trump ’ s concern that “ bad things @ @ @ @ @ @ @ a fig leaf for political calculation .
Trump is against vote-by-mail because he believes he has a better chance of winning a low-turnout train wreck of an election like the recent Wisconsin primary than he does in a well-managed , high turnout election .
Trump himself has said as much .
It ’ s tempting to demand that Republicans and Democrats in Congress put their differences aside and fix the problem .
But I think we all know how that movie ends .
Worse , there isn ’ t time as we ’ @ @ @ @ @ @ @ Plans drawn up by the U.S. Election Assistance Commission suggest that states wanting to set up a vote-by-mail system should have started the process at the beginning of April .
But we can ’ t do nothing .
It ’ s not an exaggeration to say that our democracy is potentially at stake .
Forcing people to stand in line to vote in the midst of a deadly pandemic is just as insane and , frankly , evil as forcing health care workers to treat coronavirus victims without proper masks .
Luckily , @ @ @ @ @ @ @ on President Trump ’ s goodwill .
Getting the remaining states geared up for voting by mail will cost only about a billion dollars—a relative pittance and 0.045 percent of what we have already spent on the $ 2.2 trillion CARES Act .
Besides the five states that conduct all elections by mail , 28 allow anyone to request an absentee ballot for any reason .
Setting up a vote-by-mail system in these states will be comparatively easy .
But 17 states still require what they consider an acceptable excuse before issuing a @ @ @ @ @ @ @ these states that require the bulk of the funding—and the pressure .
That pressure doesn ’ t have to rely on lobbying legislatures and the subsequent endless partisan food fights .
Any states that resist setting up vote-by-mail systems can be sued in state court and forced to do so .
Guaranteeing free and fair elections is what courts do .
As one of the developers of Certified Voter , I am all too familiar with the need for private actors to step up when the government fails to do its job .
@ @ @ @ @ @ @ some other public-spirited billionaire comes in .
For less than the $ 1.2 billion dollars he spent on his presidential run , the mayor could finance an organized campaign to force every state to make effective contingency plans for holding a 100 percent vote-by-mail election in November .
There is no doubt that at least some of these plans will be needed .
While it is unlikely that the whole country will be locked down , it is a near-certainty that there will be some coronavirus hotspots , perhaps entire states or even @ @ @ @ @ @ @ officials have determined that in-person voting is unsafe .
Americans should never be forced to choose between their health and their vote .
And it is hard to imagine any court asking them to .
On top of that , our public-spirited billionaire will be offering grants to help counties and states organize vote-by-mail .
These might be the first lawsuits in history where the remedy being imposed on a losing defendant is being forced to accept free money .
We simply can ’ t afford to leave protecting the November election to @ @ @ @ @ @ @ The efficiency and fairness of our elections have been the pride of America since the earliest days of the republic .
As we have seen with the primaries , the pandemic is placing that at risk .
We utterly failed to prepare our health care system for the coronavirus and now we are paying the price .
We can not afford to do the same thing to our election system .
Nor do we need to .
You wanted to make history , Mr. Mayor ?
Here ’ s your chance .
You @ @ @ @ @ @

For the last several weeks, I’ve been debating whether President Trump’s response to the coronavirus pandemic has been mendacious or simply foolish. But why can’t it be both? Having learned nothing from his disastrous run-up to America’s pandemic meltdown, he now proposes to do the same thing to the presidential election.
President Trump is dead set against doing anything to encourage voting by mail in November. “I think a lot of people cheat with mail-in voting,” he said last month. “I think people should vote with ID, voter ID. I think voter ID is very important, and the reason they don’t want voter ID is because they intend to cheat. . . . It shouldn’t be mail-in voting. It should be you go to a booth and you proudly display yourself. You don’t send it in the mail where people can pick up—all sorts of bad things can happen . . . by the time it gets in and is tabulated.”
This is, of course, complete nonsense. Voting by mail is already common. In five states—Washington, Colorado, Utah, Oregon, and Hawaii—all voting is now by mail. But even in many states where in-person voting is the default, anyone who wants to vote by mail can do so. In California about two-thirds of all votes are cast that way. Nor is voting by mail controversial. In a recent poll, 72 percent of Americans considered conducting the November election by mail a good idea.
Of course, Trump’s concern that “bad things can happen” with vote-by-mail is just a fig leaf for political calculation. Trump is against vote-by-mail because he believes he has a better chance of winning a low-turnout train wreck of an election like the recent Wisconsin primary than he does in a well-managed, high turnout election. Trump himself has said as much.
Podcast · August 15 2023 A.B. Stoddard: All the Ex-President’s Conspirators Donald Trump has been a low-rent mobster for his entire career, and now he’s getting…
It’s tempting to demand that Republicans and Democrats in Congress put their differences aside and fix the problem. But I think we all know how that movie ends. Worse, there isn’t time as we’re already a month behind schedule. Plans drawn up by the U.S. Election Assistance Commission suggest that states wanting to set up a vote-by-mail system should have started the process at the beginning of April.
But we can’t do nothing. It’s not an exaggeration to say that our democracy is potentially at stake. Forcing people to stand in line to vote in the midst of a deadly pandemic is just as insane and, frankly, evil as forcing health care workers to treat coronavirus victims without proper masks.
Luckily, we don’t have to rely on President Trump’s goodwill. Getting the remaining states geared up for voting by mail will cost only about a billion dollars—a relative pittance and 0.045 percent of what we have already spent on the $2.2 trillion CARES Act. Besides the five states that conduct all elections by mail, 28 allow anyone to request an absentee ballot for any reason. Setting up a vote-by-mail system in these states will be comparatively easy. But 17 states still require what they consider an acceptable excuse before issuing a voter an absentee ballot. It is these states that require the bulk of the funding—and the pressure.
That pressure doesn’t have to rely on lobbying legislatures and the subsequent endless partisan food fights. Any states that resist setting up vote-by-mail systems can be sued in state court and forced to do so. Guaranteeing free and fair elections is what courts do.
As one of the developers of Certified Voter, I am all too familiar with the need for private actors to step up when the government fails to do its job. And this is where Mike Bloomberg or some other public-spirited billionaire comes in. For less than the $1.2 billion dollars he spent on his presidential run, the mayor could finance an organized campaign to force every state to make effective contingency plans for holding a 100 percent vote-by-mail election in November. There is no doubt that at least some of these plans will be needed. While it is unlikely that the whole country will be locked down, it is a near-certainty that there will be some coronavirus hotspots, perhaps entire states or even just individual counties, where public health officials have determined that in-person voting is unsafe. Americans should never be forced to choose between their health and their vote. And it is hard to imagine any court asking them to.
On top of that, our public-spirited billionaire will be offering grants to help counties and states organize vote-by-mail. These might be the first lawsuits in history where the remedy being imposed on a losing defendant is being forced to accept free money.
We simply can’t afford to leave protecting the November election to chance—or worse, to President Trump. The efficiency and fairness of our elections have been the pride of America since the earliest days of the republic. As we have seen with the primaries, the pandemic is placing that at risk. We utterly failed to prepare our health care system for the coronavirus and now we are paying the price. We cannot afford to do the same thing to our election system. Nor do we need to.
You wanted to make history, Mr. Mayor? Here’s your chance. You’ve got my number.