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Defying the Odds

Defying the Odds
New book about the 2016 election.

Sunday, February 17, 2019


In Defying the Odds, we discuss Trump's dishonesty and his record of disregarding the rule of law.  In our forthcoming update, we bring the story up through the 2018 election.

In his 2019 State of the Union, he said:  "But we must reject the politics of revenge, resistance, and retribution, and embrace the boundless potential of cooperation, compromise, and the common good."

But seriously ... Trump is into retribution.

Hail Caesar

In Defying the Odds, we discuss Trump's place in the American constitutional system

Lloyd Green at The Guardian:
A shutdown averted, a constitutional crisis born. On Friday, Donald Trump declared a national emergency to gain additional funds for his much promised border wall, bypassing Congress and raiding the Pentagon for $3.6bn, already a legally dubious proposition in the eyes of the justice department. So much for Mexico paying.
Once upon a time, Trump and his legal minions brayed against unilateral executive actions, calling them tyrannical. Not any more. Barack Obama is out of the White House.
Hail Caesar, hello his praetorian.
Take Jay Sekulow, Trump’s personal lawyer. In April 2016, in a brief to the supreme court attacking Obama’s unilateral expansion of the Deferred Action for Childhood Arrivals (Daca) program, Sekulow painted Obama as a despot.
Echoing James Madison, founding father and fourth president, Sekulow thundered that the “accumulation of all powers, legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”. He also compared Obama and his executive order to Harry Truman’s unconstitutional seizure of America’s steel mills during the Korean war.

According to Sekulow, Truman “violated controlling precedent and abdicated [his] constitutional duty to faithfully execute the law”.
In other words, by expanding Daca without a congressional green light, Obama had committed an impeachable offense.
 Justice Robert Jackson Concurring opinion, Youngstown v. Sawyer, 343 U.S. 579 (June 2, 1952)"
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. [Footnote 4/4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Saturday, February 16, 2019

Trump Lies About Border Data, Praises Dictator Justice

In Defying the Odds, we discuss Trump's dishonesty and his record of disregarding the rule of law

Katie Bo Williams and Marcus Weisgerber at Defense One:
He rejected the claims by Democrats — and data from his own U.S. Customs and Border Protection — that most drugs seized at the border are being caught at ports of entry, not on unguarded frontiers.
“It’s wrong, it’s wrong. It’s a lie. It’s all a lie,” he said.
According to U.S. Customs and Border Protection statistics, 90 percent of heroin, 88 percent of cocaine, 87 percent of meth and 80 percent of fentanyl seized along the border in the first 11 months of 2018 was intercepted at legal crossing points.
Asked where he gets his statistics, the president said, “I get many stats.”
But there remains little evidence of any crisis the wall could solve. Illegal border crossings haven’t been as low since 1971; most illegal drugs are smuggled through ports of entry, not hauled across the open border; and there’s no evidence that undocumented immigrants commit more crime than native-born Americans. Meanwhile, the nation’s intelligence chiefs didn’t mention border crossings among the major threats to national security in their January congressional testimony.
Trump also appeared to suggest that he believed the perceived problem of drug smuggling into the United States could be resolved by more liberal use of the death penalty.
“When I asked [Chinese president Xi Jinping], I said you have a drug problem? ‘No, no, no.’ I said you have 1.4 billion, what do you mean you have no drug problem? ‘No, we don’t have a drug problem.’ I said why? ‘Death penalty. We give death penalty to people that sell drugs.’ End of problem.”
A 2016 report from Brookings Institution found that despite more than 500 Chinese laws regarding illegal drugs, these “’relentless and draconian countermeasures’ have been relatively ineffective against the country’s drug problems.
Last year, Trump said of the Chinese president: "He's now president for life. President for life. No, he's great. And look, he was able to do that. I think it's great. Maybe we'll have to give that a shot some day."

Trump Emergency

In Defying the Odds, we discuss Trump's place in the American constitutional system

David French at National Review:
One thing that is abundantly clear from reading the full text of President Trump’s declaration of a national emergency on the southern border — he’s barely even deigning to explain why there is a particular crisis today, or why that crisis is so grave that it requires the military to combat it. At its heart it’s a contemptuous document. It’s the proclamation of a monarch, not an argument by a president. And it should fail in court.
Before today, legal writers were guessing at the statutes the president would use to justify defying the will of Congress and using the military to build his border wall. Now we know. In his declaration, he’s exclusively using 10 U.S.C. 2808 to reallocate up to $3.6 billion from Department of Defense construction projects — more than double the amount that Congress allocated for wall construction in its border compromise. (He intends to use other funds as well for wall construction, but those aren’t applicable to the emergency declaration.)
The intent is clear — to grant the military the power to build out military installations, and a “military installation” is a “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or . . . without regard to the duration of operational control.” Each of the precisely described forms of installation represents facilities that support the troops. Under basic rules of statutory construction, the “other activity” must also fulfill that same purpose. As the Supreme Court held in Circuit City Stores v. Adams, when “general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”

A border wall, by contrast, is a civilian structure to be manned by civilian authorities to perform a civilian mission. The troops would not be creating a military fortification for military use. Not only is it not “military construction,” it’s also not “necessary” in order to support the use of the armed forces — unless one wants to make the fantastical argument that the wall somehow “protects” the troops who are building the wall. They are not defending the border from actual invasion as defined by the law of armed conflict or relevant American law. They are assisting in a law-enforcement mission that is mainly designed to prevent the commission of federal misdemeanors, not to stop an army that intends to take and hold American territory

At Lawfare  Scott R. Anderson abd Margaret Taylor acknowledge that a president has discretion to call a national emergency, but:
Can § 284’s authorization to build a “fence” to “block drug smuggling corridors” really be used to build a wall across the entire southern border? Is the wall really a “military construction project” of the sort authorized by § 2808? Does the president’s declaration of national emergency really “require[] the use of the armed forces” as required by § 2808? The patchwork of legal authorities on which the Trump administration is relying exposes the administration to a wide array of these challenges. One possible outcome may be a partial victory and partial defeat, in which the Trump administration is able to rely on some authorities and associated funding but not others. Regardless, plaintiffs are likely to seek—and federal courts seem likely to grant—injunctions that stop the federal government from taking any irrevocable steps towards building the wall while these legal challenges are resolved. In this sense, the primary function of these challenges may be to buy time until Congress is able to impose new limitations on the use of these funds and authorities, or even until a new Congress or a president is elected in 2020 who no longer wishes to pursue this agenda.

Friday, February 15, 2019

Defeat, Then Blunder

Robert Costa et al. at WP:
After three weeks of pained negotiations to keep the federal government open, President Trump almost blew the whole thing up again on Thursday.
Headed for another defeat on his signature promise to make Mexico pay for a southern border wall, the president was frustrated after a briefing by Homeland Security Secretary Kirstjen Nielsen and others on details of the final deal to avoid a shutdown, according to officials involved in the discussions. Trump threatened not to sign the legislation, the officials said, putting the government on the brink of another damaging shutdown.
Senate Majority Leader Mitch McConnell (R-Ky.) was on the phone with Trump at least three times during the course of the nerve-racking day, pressing him to stay the course and asserting that Democrats had actually lost the spending fight, two people familiar with the conversations said.

“We thought he was good to go all morning, and then suddenly it’s like everything is off the rails,” said one senior Republican aide.
By midafternoon, however, Trump was back on board — agreeing to sign the legislation with the caveat that he would also declare a national emergency in an attempt to use existing government funds to pay for wall construction. It was an option that Republican leaders had urged him to avoid but eventually accepted as necessary to escape the corner in which Trump — and his party — were trapped. McConnell promised Trump he would encourage others to support the emergency in a bid to get the president to sign, according to people familiar with the conversations.
Trump refused to sign the bill Thursday until the White House Counsel’s Office convinced him it would not preclude him from declaring a national emergency, two senior administration officials said. The president is expected to declare the emergency and sign the bill Friday morning, a senior White House official said.

Though White House officials insisted Thursday that Trump was acting in a defiant and assertive way, few Republicans, including the president’s closest allies, were pleased with the ending: $1.375 billion for fencing and other expenditures, plus an emergency gambit that many conservatives view as an executive overreach.

Thursday, February 14, 2019

Left Brain

In Defying the Odds, we discuss the Sanders candidacy and the leftward drift of the Democratic Party.

At Axios, Sam Baker and Ben Geman repot on new left-wing think tanks.
The universe of new or newly prominent progressive groups includes Data for Progress and New Consensus, who both worked with the Sunrise Movement, a group that's providing a lot of the advocacy muscle behind the Green New Deal.
  • The Green New Deal is now well on its way into the Democratic mainstream (though it remains vague), thanks largely to the mutually reinforcing combination of outside legwork and Ocasio-Corteznearly unrivaled abilityto drive the political conversation.
  • Data for Progress cofounder Sean McElwee also helped popularize the hashtag #AbolishICE, which then gained steam on the left, and then became part of Ocasio-Cortez’ platform, and then won its first endorsement from a senator — Kirsten Gillbrand — two days after Ocasio-Cortez won her primary.
Individual experts are also playing a big role as Democrats’ 2020 candidates look beyond the familiar left-of-center policy framework.
  • Multiple Democrats have sought the counsel of economist Stephanie Kelton, a former aide to Sen. Bernie Sanders who has helped popularize Modern Monetary Theory.
  • A pair of left-leaning economists from the University of California at Berkeley reportedly helped Sen. Elizabeth Warren craft her proposed wealth tax.
  • Economists Sandy Darity and Darrick Hamilton consulted on Sen. Cory Booker's "baby bonds" proposal and Sen. Kamala Harris' middle-class tax cut.

Wednesday, February 13, 2019

Farmers Not Winning

 In Defying the Odds, we talk about the social and economic divides that enabled Trump to enter the White House.  Those divides, however, are now working against him. Despite reports of robust economic growth, Trump's approval rating is sagging and some indicators are breaking bad.

Ryan McCrimmon at Politico:
President Donald Trump’s trade war is magnifying some of the toughest farm conditions since the crisis that bankrupted thousands of farmers in the 1980s — and threatening a constituency crucial to his reelection hopes.

The president’s trade policies have sent U.S. agricultural exports plunging, exacerbating already difficult economic conditions facing farmers. Average farm income has fallen to near 15-year lows under Trump, and in some areas of the country, farm bankruptcies are soaring.

...The Federal Reserve Bank of Minneapolis warned in November of rising Chapter 12 bankruptcies, used by family farmers to restructure debt. The Fed said that the strain of low commodity prices “is starting to show up not just in bottom-line profitability, but in simple viability.” The increase was driven by woes in Wisconsin’s dairy sector, which shrunk by about 1,200 operations, or 13 percent, from 2016 to October 2018.
Jesse Newman and Jacob Bunge at WSJ:
A wave of bankruptcies is sweeping the U.S. Farm Belt as trade disputes add pain to the low commodity prices that have been grinding down American farmers for years.
Throughout much of the Midwest, U.S. farmers are filing for chapter 12 bankruptcy protection at levels not seen for at least a decade, a Wall Street Journal review of federal data shows.

Bankruptcies in three regions covering major farm states last year rose to the highest level in at least 10 years. The Seventh Circuit Court of Appeals, which includes Illinois, Indiana and Wisconsin, had double the bankruptcies in 2018 compared with 2008. In the Eighth Circuit, which includes states from North Dakota to Arkansas, bankruptcies swelled 96%. The 10th Circuit, which covers Kansas and other states, last year had 59% more bankruptcies than a decade earlier.
States in those circuits accounted for nearly half of all sales of U.S. farm products in 2017, according to U.S. Department of Agriculture data.