Tyranny On The Docket

The Supreme Court should unanimously choose democracy over tyranny, possibly as soon as today. I use “should” in both of its senses: it is the right thing to do and they will do it. The only question is whether they dismiss Texas’s outrageous lawsuit with or without an explanation. Greg Sargent of The Washington Post argues that we need to consider what’s at stake: 

President Txxxx has once again demanded that the Supreme Court invalidate millions of votes in four states, nullifying the election and keeping him in power illegitimately.

Indeed, Txxxx was unintentionally explicit on this point: He predicted that Joe Biden’s presidency will be corrupt, and commanded the court to overturn the election results on that basis, in the process making this command with no legitimate legal or constitutional basis at all.

As early as Friday, the Supreme Court is expected to weigh in on this demand, which has taken the form of a lawsuit waged by the state of Texas, and backed by Txxxx and his propagandists, against four swing states that Biden won. The court will likely refuse to hear the case.

All of which is why the scorching reply brief that Pennsylvania has now filed is an extraordinarily important document. It frames the stakes with appropriate urgency, by essentially arguing that the Texas lawsuit and its supporters are, in effect, asking the court to arbitrarily and lawlessly impose the will of Txxxx supporters on that of the majority that rejected Txxxx — i.e., tyranny.

Even if the court does reject the lawsuit, it’s important for Americans to understand what Txxxx and his co-conspirators are attempting. Now that more than 100 House Republicans, more than 15 Republican state attorneys general and the two GOP senators running in the Georgia runoffs have endorsed this lawsuit, we should be clear on what large swaths of the GOP are really supporting.

The Texas lawsuit asks the court to invalidate the outcomes in Pennsylvania, Michigan, Wisconsin and Georgia on the grounds that the voting in them was administered illegally, a claim that largely revolves around the dramatic expansion of vote-by-mail in them. That could clear the way for GOP-controlled state legislatures in all four to appoint pro-Txxxx electors.

The Pennsylvania brief attacks the core of Texas’s case . . . . Pennsylvania points out that numerous courts have already shot down the same irregularities alleged by Texas, including the falsehoods that verification standards weren’t followed and that poll-watchers weren’t allowed to witness counting. . . .

It’s in debunking the merit of Texas’s other claim — of harm done to it — that the bigger point is made.

As the Pennsylvania brief notes, intrastate disputes that the Supreme Court has heard generally involve alleged damage done by one state to another state’s “core sovereign interests.” This might involve, say, a dispute over a boundary or a body of water.

In this case, though, Texas is instead claiming that its voters have been harmed by the supposedly illegitimate pro-Biden outcome in the four other states.

Which Texas voters were harmed by this? Why, those who voted for Txxxx, of course, or at least didn’t vote for Biden. . . .

[The Pennsylvania] brief notes, what Texas is really demanding is this:

Far from trying to vindicate its own sovereign or quasi-sovereign interests, Texas is ultimately seeking redress for the political preferences of those of its citizens who voted for President Txxxx.

It adds:

Let us be clear. Texas invites this Court to overthrow the votes of the American people and choose the next President of the United States. That Faustian invitation must be firmly rejected.

. . . Stephen Vladeck, a law professor at the University of Texas at Austin, emails me this:

Texas is basically asking the Supreme Court to overturn the election for no other reason than because it has suspicions no one has been able to prove about mischief in other states. It’s not just a borderline frivolous legal suit; it’s an invitation to the Justices to simply substitute the preferences of a minority of voters for those of the clear majority.

We spend a great deal of time debating whether Republican elected officials endorsing this effort genuinely support its goals or instead are trying to realize other instrumental purposes, such as energizing the base or keeping Txxxx happy so he will endorse GOP candidates.

But even if those are also operative motivations, . . . would these elected Republicans be fine with this effort actually succeeding? There is just no evident reason to give them the benefit of the doubt . . . 

Mad King Donald?

Simon Rosenberg of NDN and the New Policy Institute writes:

One of the great animating principles which drove the founding of America and the design of our government was the quest to curtail the power of a single person to determine the fate of the nation without reasonable deliberation and what we call checks and balances.  There is perhaps no more quintessentially American idea than this – that the President is not a sovereign, but a partner in governing the nation with Congress and the Judiciary; that he or she serves the people, not themselves; that we are a nation of laws, not men and women.

After more than two years of his Presidency, it just isn’t clear that [the President] agrees with this timeworn American belief that the power of an executive in a democracy must be limited and checked.  At the core of Bob Mueller’s report to the American people are profound questions about [the President’s] willingness to trample democratic norms and laws, even openly working with a hostile foreign power to influence the outcome of an American election.  The President showers authoritarian strongmen like Putin, Kim, and Orban with praise, and denigrates our democratic allies.  In case after case – the unrelenting lying about everything, the refusal to divest from his businesses, the unilateral deployment of the military on US soil, the years of obstruction documented by Mueller and the unprecedented disregard for the oversight responsibilities of Congress, the many times the President’s policies have been stopped by US courts, the granting of security clearances over the objections of professional staff and the intelligence community, the wanton lawlessness of his Cabinet and staff, and the persistent invocation of emergency powers when no emergency exists (either the US economy is the best ever or we are in a national emergency, can’t be both) – the President has refused to abide by the laws and norms essential to making our democracy, or any democracy, work.  In many ways he has become the type of American leader our Founding Fathers tried so hard to prevent from ever occupying the White House. 

It is in this light that we must see, and ultimately challenge, the President’s use of tariffs with Mexico, China, and other nations in the world.  The way he is using them, without consulting Congress and by whimsically announcing and enacting them without public debate or deliberation, is simply outside any reasonable understanding of how our nation should be governed.  They are the actions of a tyrant, or a Mad King, not an American President.  They also, perhaps even more importantly, violate the entire theory of how the post WWII order, designed and built by the United States, was supposed to work.  Whimsical use of tariffs has been essentially outlawed or highly constrained in our global system, in ways similar to how we’ve approached chemical and nuclear weapons. Their escalating use in the pre-war period led to world war, and leaders from around the world came together and designed a system which sought to eliminate their existence entirely.  The President’s repeated deployment of tariffs to achieve not just economic but political objectives is a clear break from the norms and laws of the modern world. 

…. Congress has a profound duty to step in now and stop this dangerous abuse of Presidential authority before more harm is done to the United States and the world.  It can begin by advancing a bicameral, bipartisan bill already introduced into Congress that is designed to reign in the President’s abuse of his tariff authorities. 

…. Congress has an additional remedy it is considering now – impeachment and removal.  It is my own belief that if Congress does begin the process of removing the President, among the more persuasive arguments which will need to be made is [his] historic abandonment of the democratic principles which have inspired the world and made America great.  Refusal to embrace those principles, flirting and encouraging autocratic whimsy rather than democratic deliberation, is perhaps the greatest crime an American President can commit, for it is a betrayal of our nation’s most important contribution to human kind – that it is the people who are sovereign, not Mad Kings and tyrants.  There is perhaps no greater rationale for the removal of a President than failure to maintain fidelity to our democratic system itself.