Thursday, December 10, 2020

Why So Many Conservatives Believe the 2020 Election Was Stolen. By David A. Hopkins

Why So Many Conservatives Believe the 2020 Election Was Stolen

WEDNESDAY, DECEMBER 09, 2020

It was easy to predict before the 2020 election that Donald Trump would never personally acknowledge that he lost fairly, if indeed he were to lose. This expectation was apparent enough from any casual observation of Trump's behavior over his entire career in public life. Trump had even made accusations of widespread illegal voting in 2016, immediately after his surprising electoral success, so there was little reason to wonder whether he would dismiss the validity of any contest in which he was actually defeated.


What's become clear in the weeks following the vote is that this view is spreading widely within the Republican Party. A Monmouth University poll found that 77 percent of Trump supporters believed that Joe Biden's victory was due to fraud. Lawsuits and protests in multiple states have sought to overturn the results of the election or visit revenge on the officials responsible for counting the votes. Attuned to the winds blowing within their party, most Republican members of Congress either openly deny that Biden is the rightful president-elect or simply refuse to explicitly acknowledge Trump's defeat, a play-it-coy strategy that is reminiscent of many Republican elected officials' treatment of the "birther" conspiracy theory during the Obama administration.


In a provocative recent piece, New York Times columnist Ross Douthat, a conservative critic of Trump, confirmed the popularity of the stolen-election theory on the American right—even among those whom he describes as "people I would not have expected to embrace it." Searching for explanations for this development, he not only lays responsibility on Trump's own claims and those of the president's vocal allies in the conservative media, but also describes a pre-existing skepticism of bureaucratic, academic, and journalistic institutions fueled by the underrepresentation of conservatives within their ranks. This perceived exclusion, Douthat argues, naturally encourages an anti-authority mentality on the right that easily leads to a search for alternative forms of knowledge—or "knowledge"—fulfilling a psychological demand for challenging the official accounts of emotionally unwelcome events. In other words, the very insistence of the "liberal media" and "liberal experts" that Trump was unambiguously defeated in a fair election is breeding a kind of reflexive resistance to the idea among those who distrust these traditional sources of information.


The dynamic that Douthat describes is likely an important part of the story. But there's another reason for the appeal of claims that the 2020 election was stolen from Trump that draws a bit more on conservatives' own long-held working theories of electoral politics.


The landslide victories of Ronald Reagan in the 1980s convinced many conservatives that there was no tradeoff between ideological purity and popular success—to the contrary, that an unambiguous embrace of the conservative cause brought reliable electoral reward. Subsequent Republican losses in presidential elections have often been explained away as cases when the party was rejected by the electorate after straying from its true ideological path, thereby reducing the participatory enthusiasm of the party base while causing other voters to lose respect for the GOP's wavering devotion to its own supposed principles. This view cites George H. W. Bush's loss in 1992 after violating the "no-new-taxes" pledge that he was elected on four years before; the Democratic gains in 2006 and 2008 after the George W. Bush administration deviated from small-government doctrine on domestic policy; and the back-to-back defeats of John McCain and Mitt Romney, both dismissed in retrospect as imperfectly loyal standard-bearers for the conservative movement.


Had Trump also lost in 2016, conservatives could have easily explained his defeat without revising this theory; simply pointing in the direction of Trump's politically inconsistent personal history and various rhetorical heterodoxies during the campaign would have allowed them to claim that he, too, failed because he wasn't a faithful enough conservative. But once elected, Trump began to preside over a strongly ideological administration that quickly and enduringly achieved both the committed support of leading conservative media figures and a remarkable, arguably unmatched degree of mobilized passion within the Republican popular base. If Republican presidential candidates only lose when they turn their back on conservatism and disappoint their own party's grassroots supporters, Trump's presidency seemed like it was custom-built to avoid such a fate.


On top of this, the belief that voter fraud is a serious problem in American elections, and that it is perpetrated in particular by liberal Democrats in big cities, has long been prevalent among conservatives. For years before the 2020 election, this claim has been used to justify the passage of voter ID laws and other restrictive measures by Republican-controlled state legislatures despite the absence of hard evidence substantiating it.


Even without Trump's own accusations further stirring the pot, then, the situation was ripe in 2020 for many conservatives to believe that the only way the president could lose would be through a fraudulent election, and that Democrats had both the means and the inclination to commit such fraud. The narrow popular margins in pivotal states, the record amount of mail-in voting, the late reporting of urban vote piles, and the victory of an opponent (Biden) whom few conservatives view as a particularly wily or charismatic adversary all serve as additional fodder for this conspiratorial thinking, but it would probably have spread after a defeat of any size or scope. Rather than revisit decades of assumptions about the administration of, and dynamics of vote choice in, American elections, it is psychologically easier to simply conclude that any defeat of a conservative popular hero must have been rigged by unscrupulous liberals.


Partisans on both sides are susceptible to conspiracy theories in the wake of political disappointment; claims of biased voting machines circulated for a time among Democratic supporters in the wake of George W. Bush's 2004 re-election, for example. But most Democrats subscribe to foundational assumptions that, though they may also be factually incorrect at times, allow for the possibility of electoral defeat that is at least legally—if perhaps not morally—legitimate. Rather than assert outright theft, they more commonly accuse Republicans of cynically exploiting popular prejudices or riding waves of corporate cash to victory, or blame their own side's candidates and advisors for blowing the race through strategic incompetence. (Even the 2020 results, by no means a total failure for Democrats, have inspired plenty of internal recriminations.) Conservatives, by contrast, are more likely to assume that Republican defeat must be the electorate's punishment for the sin of ideological impurity. If Trump gave the American public the steadfast conservatism it supposedly craves, it's emotionally satisfying for them to conclude that maybe the voters didn't actually intend to end his presidency after all.


Wednesday, December 9, 2020

Texas AG Asks the Supreme Court for a Coup. By Noah Feldman

Texas AG Asks the Supreme Court for a Coup

Ken Paxton and Donald Trump have a bizarre view of justice.


Texas AG Asks the Supreme Court for a Coup

Ken Paxton and Donald Trump have a bizarre view of justice.


By Noah Feldman, December 9, 2020, 4:45 AM GMT+9

Texas has filed an application to the Supreme Court to initiate a lawsuit against Pennsylvania, Michigan, Wisconsin and Georgia — four swing states that Joe Biden won in the presidential election. The lawsuit is a piece of theater, not a credible legal strategy.


The lawsuit exploits a quirk in the Constitution that allows a state to sue another state directly in the Supreme Court, without starting in the lower courts. That gives the justices an opportunity to weigh in, in the event that any of them chooses to do so.


It’s unlikely that the justices will say anything about this suit, allowing it to become moot once President-elect Biden is sworn in. And if any of the justices do issue a statement, it won’t change the election outcome. So on that level, there is nothing to worry about.


Nevertheless, the attempt reflects a deeper perception of the court — and that perception is worrisome. President Donald Trump has made it clear he would like the Supreme Court to somehow find a way to overturn the vote.


In Trump’s fantasy world, apparently shared by Texas attorney general Ken Paxton, the Supreme Court will engage in a constitutional coup d’état and give Trump a second term. This idea is based on a view of the court as entirely partisan. It’s disrespectful of the rule of law. And it’s wrong, whether held hopefully on the right or fearfully on the left.


You know a lawsuit isn’t serious when it opens with an epigraph — kind of like a novel might. The Texas application starts with a quotation from John Adams: “[T]hat form of government which is best contrived to secure an impartial and exact execution of the law, is the best of republics.”


This may sound like an obvious appeal to the rule of law, which Adams cared about a lot. But on closer analysis, it’s actually a weirdly appropriate choice. It comes from a 1776 letter by Adams known as his “thoughts on government.” In the letter, Adams attacks the idea of democracy — rule by the people. He argues for separation of powers and for a judiciary that can “mediate” between the popular legislature and the executive. If you were going to file a brief with the Supreme Court asking it to throw out the people’s choice for president, Adams’s letter might be just the ticket.


The problem, of course, is that while the rule of law is a wonderful thing, and the Constitution does create a tripartite system of government, the Supreme Court isn’t supposed to overthrow elections in the name of “balance” (to use another of Adams’s favorite words).


In fact, the invocation of Adams to ask the justices to overturn the will of the people kind of makes you want to quote Lin-Manuel Miranda paraphrasing Alexander Hamilton: “Sit down, John!” Or as James Madison wrote to Thomas Jefferson in 1788: “John Adams has made himself noxious to many particularly in the southern states by the political principles avowed in his book.”


If the elitist Adams didn’t care much for the people or their will, at least he had a complex and well-developed constitutional theory on which to rely. Not so Trump and his affiliates.


The Texas lawsuit is literally asking the court to disqualify the electors from the four swing states that went to Biden. That would plunge the country into a constitutional crisis. It would be the end of democracy in the United States. A majority of nine justices would have replaced 330 million citizens as our rulers.


It’s possible that the fantasy that the court would actually do this is rooted in a mistaken understanding of what happened in the Bush v. Gore case. Trump and the Texas lawyers seem to think that problematic case amounted to the Supreme Court giving the election to George W. Bush when Al Gore had in fact won.


The reality was more complicated. The justices back in the year 2000 stopped a recount that, at the time, was believed to have the possibility of giving the closely contested election to Gore. To be sure, that decision relied on a bizarre interpretation of the equal protection clause to say that differences in recount techniques violated the Constitution. But the whole problem that Bush v. Gore addressed was a situation in which it was genuinely unclear who had won the election. It came down to just a handful of votes. The result was, in effect, a coin toss — and the justices stopped the coin from being tossed, assuring that Bush won. I think that decision was blatantly wrong, but in any event, multiple subsequent recounts suggested that Bush would’ve won anyway.


Regardless of whether a mythic version of Bush v. Gore is to blame, it’s bad for the functioning of our democracy that elected officials like the Texas attorney general (to say nothing of Trump) think it is acceptable to go on the record asking the Supreme Court for a coup d’état.


The justices are sometimes ideological when it comes to jurisprudence. Some of them are sometimes partisan. Bush v. Gore had unfortunate partisan overtones. But the Supreme Court would not break democracy. Not even John Adams, the skeptic of popular self-rule, would have wanted that result.


This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.


Out of Office, Trump Won’t Matter Much. By Jonathan Bernstein

Out of Office, Trump Won’t Matter Much

Republicans are largely ignoring the president’s views as it is. Why would that change after January?


Out of Office, Trump Won’t Matter Much

Republicans are largely ignoring the president’s views as it is. Why would that change after January?


By

,

December 9, 2020, 9:31 PM GMT+9

Don’t let the door hit you ...

Don’t let the door hit you ...


Photographer: Tasos Katopodis/Getty


Don’t let the door hit you ...

Don’t let the door hit you ...


Photographer: Tasos Katopodis/Getty


Photographer: Tasos Katopodis/Getty


Get Jonathan Bernstein’s newsletter every morning in your inbox. Click here to subscribe.


Questions about President Donald Trump and the Republican Party just get more and more complicated. Take, for example, Senator Lindsey Graham’s comments about Trump’s future influence (via Ed Kilgore, who has a good item about it):


He has a lot of sway over the Republican Party. If he objects to anything Biden [does], it would be hard to get Republicans on board. If he blessed some kind of deal, it would be easier to get something done. In many ways, he’ll be a shadow president.


This seems intuitively correct at a time when scores of Republicans, including most of the party in Congress, seem to be afraid to admit that Trump lost the election. Sure, it’s also true that numerous Republicans in key positions of authority — judges, state and local officials, state legislators — stood up to Trump and refused to undermine democracy on his behalf. But it sure seems as though Trump dominates the party. And yet …


Congressional Republicans who won’t call Joe Biden the president-elect are nevertheless voting for a defense-authorization bill that Trump opposes, ignoring his veto threat. Republican senators may vote this week to overturn an arms sale Trump wants. The president’s nomination of Judy Shelton to the Federal Reserve Board has been just as unsuccessful as his earlier unorthodox picks. Trump is almost entirely AWOL in negotiations over appropriations, and his preferences have been ignored in negotiating the coronavirus relief and stimulus bill. As for the pandemic itself, most Republican governors are now attempting to slow the spread and pushing for the use of masks. That’s not Trump’s policy.


In short: All these Republicans find it remarkably easy to defy Trump right now, while he’s still president, on most matters of public policy. Sure, many of them are on his side on the issues. But in most cases that’s because they were already there, often before he was.


The question is how all of this changes once Trump is out of office, assuming for now that he’ll remain politically active and highly visible (neither a sure thing). Graham’s assertion is telling. To begin with, it’s purely reactive: Trump will, Graham says, be able to keep Republicans from supporting Biden’s initiatives, not persuade Republicans to adopt his own policy agenda. But is there even much to what Graham does anticipate? Surely Republicans aren’t going to need Trump’s influence to oppose most of what Biden wants; they’ll do that both on substantive grounds and as part of the same rejectionist strategy they think was successful against Presidents Bill Clinton and Barack Obama.


As for the other possibility, that Trump could endorse any major compromise: Really? Does anyone think that Trump will do that at all? The truth is, to the extent Trump has any influence within the party, he has mostly used to build personal loyalty to himself. It’s hard to imagine he’ll have any greater cause to fight for after he leaves the White House.


This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.


Tuesday, December 8, 2020

Under-reacting to SCOTUS Theocracy by Michael C. Dorf

Under-reacting to SCOTUS Theocracy
 by Michael C. Dorf

In a recent op-ed in USA Today, Professor Laurence Tribe and I argued that last week's SCOTUS ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, and especially Justice Neil Gorsuch's concurrence in the case, should raise alarm bells for those who care about imposing very high costs on the American public in order to accommodate or even write into law the views of traditional religious conservatives. We were especially concerned by the juxtaposition of how Justice Gorsuch bent over backwards to find illicit discrimination against traditional religion while essentially mocking a line of cases that provides the bedrock for reproductive rights. We concluded our essay with a literary allusion: "A court that affords no protection to unenumerated rights to bodily integrity and privacy, while simultaneously eroding the separation of church and state would look less like our familiar institution and more like the highest judicial authority of a place like Gilead — the theocratic and misogynist country in Margaret Atwood’s dystopian 'The Handmaid’s Tale.'"

The overwhelming majority of responses I saw to our op-ed were supportive, but some were not. For example, UVA Law Professor Julia Mahoney on Twitter said that Professor Tribe and I needed "to get a grip and calm down" because there's no "sympathy for a 'Gilead' style theocracy among any of the Justices." Yet that response mostly takes issue with our metaphor about the end point of the Court's current path. We did not mean that the result in Roman Catholic Diocese was reminiscent of Gilead.

But enough about the suggestion that Professor Tribe and I overreacted to Roman Catholic Diocese. Here I argue that the bigger problem is under-reaction. People who should know better--like Professor Cass Sunstein--as well as people who don't know any better but nonetheless have a large platform--like NY Times columnist Bret Stephens--have written oddly laudatory accounts of the case. I'll consider the defenses of Roman Catholic Diocese from weakest to strongest, beginning with Stephens, moving to Sunstein, and then concluding by discussing a thoughtful (but still wrong) NY Times op-ed by Professors Michael McConnell and Max Raskin.

Stephens begins as follows:

It may take a terrorist attack, a war or some other national emergency, but America will one day thank Justice Neil Gorsuch for his stirring words last week in Roman Catholic Diocese of Brooklyn v. Cuomo. “Government,” he wrote in a concurrence to the 5-4 majority opinion, “is not free to disregard the First Amendment in times of crisis.”
Stephens thus suggests that when some future crisis threatens other civil liberties besides religion, Justice Gorsuch will man the barricades to protect, say, a right to stage a public protest, which is also enshrined in the First Amendment.

Maybe, but instead of imagining how Justice Gorsuch would perform in the future, we do better to look to his actual record. Doing so, we discover that Justice Gorsuch isn't even a consistent champion of the First Amendment's Free Exercise Clause. He believed he detected religious discrimination against observant Catholics and Jews because their worship services weren't advantaged sufficiently relative to comparable secular indoor gatherings like concerts, sporting events, and lectures, but when the President of the United States publicly and repeatedly announced his animus against Muslims as a ground for restricting entry into the US from a reverse-engineered list of overwhelmingly-Muslim countries, Justice Gorsuch and his fellow Republican appointees looked the other way.

Is that an unfair comparison, given the national security context of the Travel Ban Case? Hardly. Chief Justice Roberts (who is not a liberal, even if the appointment of extremists even further to his right sometimes makes him look moderate in comparison) took the occasion of the Travel Ban litigation to formally overrule Korematsu v. US. Yet, in granting extreme deference to political authorities based on bogus assertions of national security, the majority that Justice Gorsuch joined in Travel Ban more nearly followed than repudiated Korematsu. As Professor Jamal Greene wrote in the Yale Law Journal, the conservatives' self-congratulatory purported repudiation of Korematsu in Travel Ban was "not just empty but also grotesque." As Professor Greene explained, Travel Ban 

condemns racism with one hand but deploys tokenism with the other. The statement [nominally overruling Korematsu] appears in a case in which the majority blessed transparent religious bigotry on the part of the sitting President while cloaking itself in righteous indignation over a seventy-four-year-old decision whose wrongness is a matter of incompletely theorized consensus. 
Given Justice Gorsuch's willingness to sacrifice Muslims to a bogus national security emergency, it takes a special kind of naïveté to believe that his paean to the First Amendment in times of a real public health emergency in a case involving Christians and Jews was not likewise empty and perhaps even grotesque.

Stephens compounds his naïveté with ignorance. The majority in Roman Catholic Diocese had to reckon with the Court's 1990 opinion by Justice Scalia in Employment Division v. Smith, which construed the First Amendment's Free Exercise Clause as an anti-discrimination principle but not as a right of religiously motivated individuals or institutions to exceptions from "neutral, generally applicable" limits that apply to everyone. Thus, the Court in Roman Catholic Diocese at least claimed that NY Governor Andrew Cuomo's order discriminated against religion. As I explain below, that claim was far-fetched, but the Justices made it nonetheless. Stephens, by contrast, gives up the game when he writes that "[t]he right to the free exercise of religion, even if subject to regulation, deserves greater deference than the right to attend your local cineplex." Stephens is not actually complaining about discrimination against religion. He is asserting that religious institutions should receive specially favorable treatment. One might think that's a sound idea on normative grounds, but it's not currently the state of constitutional law. 

Brett Stephens can perhaps be excused for his ignorance, as he is not a lawyer. I would urge Stephens to stay in his lane, except that his lane is pollyanish and dangerously wrong climate denialism. In any event, let's move on to more serious people.

Professor Sunstein is obviously much much more sophisticated about law than Bret Stephens, but that only makes his take on Roman Catholic Diocese all the more perplexing. Describing liberals as overreacting to the opinion, Professor Sunstein writes: "If we take the court’s ruling on its own terms, it’s small potatoes. Everyone on the court agreed that if New York discriminated against houses of worship, its action would have to be struck down, pandemic or no pandemic. That idea breaks no new ground." Professor Sunstein thus attacks a straw man.

No one said that it is novel or objectionable for courts to strike down regulations that actually discriminate against religion. The idea that breaks new ground is the expansive definition of what counts as discrimination in cases like Roman Catholic Diocese. Governor Cuomo's now-defunct limits of ten worshippers in red zones and twenty-five in orange zones were, to repeat, more favorable for religious gatherings than for comparable secular gatherings. If I wanted to give a lecture on the ways in which eating animals leads to increased risk of zoonotic pandemics, the governor's order, while in effect, would have barred my doing so, even though a minister, priest, rabbi, or imam in the building next door could give a sermon saying God will protect congregants from COVID-19 as part of a worship service of the same size.

Professor Sunstein fawningly quotes Justice Gorsuch's statement that "there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques." Yet Professor Sunstein does not even address--much less refute--the response that Justice Sotomayor, joined by Justice Kagan, provides. Quoting the concurrence of Chief Justice Roberts in a May case from California, Justice Sotomayor writes: 

New York applies “[s]imilar or more severe restrictions . . . to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” Likewise, New York “treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
Whereas Professor Sunstein does not acknowledge the actual issue in Roman Catholic Diocese--what counts as religious discrimination?--Professors McConnell and Raskin are substantially more nuanced. They recognize that a typical patron of a bike shop or liquor store will not sit in a stationary position and sing for an hour or more, but, they point out, the people who work in bike shops, liquor stores, and other businesses deemed essential do linger in their place of work where they can be exposed (even if masked) to a great many possibly infected customers over the course of a shift. Parishioners-to-grocery store-customers may not be an apples-to-apples comparison, McConnell and Raskin admit, but parishioners-to-workers is.

The op-ed by Professors McConnell and Raskin is level-headed but nonetheless wrongheaded for three reasons. First, Supreme Court cases make precedent not based on what they might have said but based on what they actually said. Maybe a sound opinion could have been written justifying the result in Roman Catholic Diocese by comparing the health risks to workers and to worshippers, but the actual precedent-setting opinion the Court wrote doesn't do that. The per curiam majority discusses "shoppers." Likewise, Justice Gorsuch complains about limits that apply to worship services but not to customers who wish "to pick up another bottle of wine [or] shop for a new bike."

Second, the fact that Governor Cuomo may have drawn imperfect lines between worshippers and workers is not persuasive evidence of discrimination in any conventional sense. Dissenting in a similar case from Nevada in July, Justice Kavanaugh expounded the view that a majority of the Court now appears to embrace: discrimination against religion exists if there is even one similarly situated secular actor treated more favorably than a religious actor, even if most similarly situated secular actors are treated no better than or even worse than religiously motivated ones. As I explained in a blog post discussing that case, this view, which builds on an argument advanced by Professor Laycock, relies on a conception of discrimination that one finds nowhere else in constitutional law.

What's really going on is that the Roman Catholic Diocese majority are disregarding the Smith rule while pretending to follow it. Cuomo's order didn't single religion out for adverse treatment. True, one could say that the order--insofar as it undercounted the risks to workers at the likes of bike shops and liquor stores--was not narrowly tailored to the state's compelling interest in health. It should therefore fail heightened scrutiny if heightened scrutiny applies. Yet under Smith, one only gets to the narrow tailoring inquiry of heightened scrutiny after determining that a law discriminates against religion. If a court can use the narrow tailoring inquiry itself to ascertain whether a law discriminates against religion, then the court has effectively overruled Smith.

And that's not at all surprising. Professors Laycock and McConnell are two of the legal academy's most prominent and effective critics of Smith. For over thirty years, each of them has been arguing that free exercise should be construed as no mere anti-discrimination principle but as the basis for a right of religiously motivated individuals to exemptions from neutral, generally applicable laws, unless the government can satisfy strict scrutiny. In the current Court they appear to have found a receptive audience.

Now to be clear, I myself have expressed serious reservations about Smith. I think the case was wrongly decided as an original matter and that, notwithstanding stare decisis, there are somewhat persuasive arguments for overruling it--although I worry that the current Court would use the overruling of Smith as a license to gut anti-discrimination law. But whatever one thinks about whether Smith should be overruled, unless and until it is overruled, it's at best confusing and at worst dishonest to say that a case like Roman Catholic Diocese involves discrimination against religion.

Third, and finally, none of the authors I've critiqued here--not Stephens, Sunstein, nor McConnell and Raskin--grapples with Justice Gorsuch's alarming and unprovoked attack on just about all unenumerated rights. Professors McConnell and Raskin seem especially oblivious to this peril. They write that Roman Catholic Diocese provides assurance that "when public health measures intrude on civil liberties—not just religious exercise, but other constitutional rights—judges will" protect us from overreaching.  Yet it is precisely those "other constitutional rights" that Justice Gorsuch's mocking of "penumbras" and "substantive due process" endangers.

The danger is precisely the one that Professor Tribe and I identified: a Court that sees discrimination against religion where there is in fact modest accommodation of religion but that disparages reproductive rights. Our critics are right that the US is not yet Gilead, but even baby steps on the road there should be identified and resisted.

Monday, December 7, 2020

Will Congress Stop Trump’s Lawlessness? by Jonathan Bernstein


Will Congress Stop Trump’s Lawlessness?
by Jonathan Bernstein, bloomberg.com
December 7, 2020 06:53 AM

Not how it works.
Photo by: Photographer: Spencer Platt/Getty
Get Jonathan Bernstein’s newsletter every morning in your inbox. Click here to subscribe.

What should be done with a president who is openly asking numerous elected officials to break the law — and not just to violate statutes, but to do so in an effort to illegally overturn an election result?

This is what’s happening. There is no provision for state legislatures to throw out election results if they decide they don’t like the winner. There’s no provision for them to do so even if they have really good reasons and strong evidence of misconduct, and not just unsupported and false accusations. Candidates have a right to contest elections, but every state has laws and procedures for doing so. What Trump wants to happen is for legislators to just ignore those procedures — to break the law. Responsible Republican elected officials and Republican judges (and of course plenty of Democrats) are refusing, and explaining how dangerous all of this is.

(To be clear: There’s a farfetched theory that the wording of the Constitution gives legislatures unusually strong powers within state governments when it comes to presidential elections. But no one thinks that those legislatures, once they’ve determined that presidential electors will be chosen by popular vote according to various rules and regulations, can come back after those elections and change their minds and award the electors to the candidate of their choice. That’s not how the law works.)

So what should be done? One way to look at it is pretty simple. Trump has (again) violated his oath of office and committed obviously impeachable offenses. He therefore he deserves to be impeached, removed and disqualified from holding any future office. The case is straightforward. He’s clearly attempting to break the law and undermine the constitution. It’s clearly a major violation, not a trivial one. And yes, there’s plenty of time to impeach him if 218 members of the House and 67 senators were willing. There are no mandatory procedures in impeachment and removal (although there are precedents), and there’s no real question about the evidence in this situation, since Trump is openly trying to overturn an election he lost. If Congress wanted to, they could get it done in a week.

Impeachment, however, is a political act, not a judicial one. It’s clear that Republicans in Congress have no appetite for punishing Trump’s behavior; to the contrary, a fair number of them are fully committed to joining his attempt to violate the Constitution, and most of the rest are simply ducking the issue. Democrats, with their House majority, could decide to impeach Trump for a second time only to have him survive a second time, and doing so would hardly be unreasonable. However, it’s clear by now that impeachment (along with acquittal) would do nothing to pressure Trump to obey the law and the Constitution. Nor would it likely have any other positive effect. To the contrary: All those Republicans who are currently staring at their shoes and saying nothing would likely wind up endorsing Trump’s actions, which is even worse than having them stay quiet about it.

This is without doubt extremely unsatisfying for defenders of the republic. Nor is it all that reassuring that only some Republicans have actively joined Trump’s attempt to undermine democracy. It’s too easy to see things getting worse the next time around. I suppose the most optimistic thing I could say is that it’s easy to overestimate the antidemocratic faction with the Republican Party, mainly because the president is squarely part of that group. But it’s unfortunately easy to imagine that faction growing considerably during Joe Biden’s presidency.

1. Natalie Jackson on the polls in 2020 and how everyone involved could do better.

2. Katy Pearce on social media and the Armenia-Azerbaijan war.

3. Robert Farley on Space Force.

4. Nathaniel Rakich on Trump’s popularity — and Biden’s.

5. Ross Douthat on believing in vote-stealing conspiracy theories.

6. E.J. Dionne Jr. has a nice one about anti-Trump conservatives. The main thing I’d underline is that a Burkean conservatism — the impulse to remember that things could be worse, and can be made worse even by those with the best of intentions — is the farthest thing from the radicalism of Newt Gingrich, Rush Limbaugh and Donald Trump.

7. And my Bloomberg Opinion colleague Andreas Kluth on the vaccine and poor nations.



Published on December 7, 2020, 7:53 AM EST
Comments 0

Tuesday, December 1, 2020

Climate change is really hard

Climate change is really hard

I sadly do not have the answers here
Matthew Yglesias
1 hr ago

Member J.S. emailed me last week to ask “curious if you have a ‘what to do about climate change’ post in the works. I know Vox has covered that quite a bit but don't recall you writing about it much when you were there. Would be interested to see your ‘what we can actually do about this given political realities take.’”

The short answer is that I don’t have such a post in the works because I don’t know exactly what we should do about climate change. What I think the political realities show is that some of the primary season arguments about here’s a $2 trillion plan versus a $7 trillion plan versus a $1,782 quazillion plan were sort of pointless — the limiting factor on climate action is now and has never been a lack of aspirational pledges. My main take, in line with the overall theme of this blog, is that the climate change problem is an extremely hard board to bore for some reasons that are pretty fundamentally baked into the structure of the issue.

Emily Atkin wrote a post at Heated taking issue with some stuff I’ve said. She writes that “we have to do every single thing humanly possible.” I agree with the spirit of what she’s saying. But in the interest of being pedantic, let’s note that I don’t think we should dispatch the Air Force to start bombing coal plants in China and India even though the emissions benefits would potentially be very large. Obviously nobody in the climate movement thinks we should do that — that would be nuts.

So, yes, that’s pedantic. But it underscores to me the overarching truth: Making progress on climate is really hard. It’s actually harder than the “do everything possible” rhetoric implies, because we really do have to do all this stuff, but on the other hand, we are balancing a bunch of other considerations. And since we can’t bomb our way to reduced emissions, we also need to cope with a lot of tricky coordination problems.

I don’t have any super-original ideas about the path forward. But to the extent that I have a different take on this from anyone else, it’s that instead of looking at an IPCC target and then seeing how far short of it we are and falling into despair, it’s worth starting with how genuinely difficult the problem is and appreciating that meaningful progress has been and continues to be made.

The climate problem is genuinely difficult
I think it’s useful to return to first principles here — the structure of the climate problem makes it genuinely hard to solve.

That structure is twofold:

Even under optimistic assumptions, abandoning the energy infrastructure you already have in favor of some new infrastructure involves present-day costs for the purpose of achieving future gains.

Because climate pollution operates on a global scale, each country will receive less than 100 percent of the future gains that it makes sacrifices for.

That’s hard!

Like many Americans, I am overweight and I periodically try to become less so. But it is challenging. Not because I’m a science denier or because I’m corrupt and on the take from Big Late Night Snacking but because the health benefits of not snacking accrue in the long run, while the pleasure benefits of snacking accrue in the short term. Now imagine if the benefits were not just in the future, but spread across every overweight person the country. But then imagine if some other pundit’s overeating could undo my efforts by making me gain weight. So the only way for a bunch of us scattered around the globe to all diet together.

Nobody would ever get in shape.

I don’t think my diagnosis is at all unusual, but it does lead me to a big difference in tone from a lot of the climate commentary you hear. A lot of it seems to assume that there is some obvious, technically tractable and politically viable solution that politicians are just perversely refusing to implement. But that isn’t true and it’s impressive that we make any progress at all.

Nobody really prioritizes climate change
Famously, lots of people who are fired up about climate change also eat beef or use gas stoves or fly around on planes to go on vacation.

And famously, the reply to that is this is a collective problem that you’re not going to solve by shaming people about their individual consumption choices.

But if you go to a nice blue jurisdiction where everyone collectively cares about the collective problem of climate change, you still see lots of issues. Here in DC we’re not raising residential parking fees. We’re not changing historic preservation laws so I can install energy efficient windows. We’re not banning the installation of new gas-fired furnaces.

Now there are various reasons people give to oppose all these things, just like there are reasons people eat beef (tasty) and fly on planes (convenient). But a state or city that really prioritized climate would clearly want to require new construction to meet exacting energy efficiency standards but otherwise remove all barriers to density while reallocating road space away from cars to more energy-efficient modes of transportation.

What you see is that there simply isn’t much appetite for prioritizing climate at the city or state level, any more than there is at the individual lifestyle level. That’s in part for the same reason. If you could honestly tell the preservationists that letting me have my efficient windows would solve climate change they would probably listen to reason. But of course it won’t solve climate change. In the scheme of things, the enforcement of the Logan Circle Historic District rules doesn’t really matter — at least not any more than my next plane flight matters.

But this stuff just aggregates upwards. Norway does a lot of great environmental policy, but it’s all built on an economic foundation of oil and gas extraction. The Norwegians are good progressive folks and maybe they’d agree to “leave it in the ground” if everyone else agreed to do it too, but otherwise you’re asking them to forego economic benefit for trivial climate impact.

It’s hard.

The technical problems are also hard
The good news about the state/local policies I named above is that they would work. Apartment buildings and bus lanes are proven technologies that reduce emissions. But of course they don’t reduce emissions to zero.

When you start talking about getting emissions really really really low, you end up having to talk about Hard Technical Problems. You’re talking about electric heat in cities where the winters are too cold for heat pumps. You’re talking about batteries big enough to store excess solar power in the summer and dispense it in the winter. You’re talking about electrifying international cargo shipping. You’re talking about dramatic changes to agriculture or peoples' eating habits.

These are, again, not new points. But I think they are worth dwelling on. For example, at least part of the answer to the question “why don’t we just make everyone manufacture concrete without causing tons of CO2 emissions?” is that nobody knows how to do that.

In the realm of less-hard technical problems, we know that solar panels and windmills work and we know how to make more of them. But as you install more and more renewable power, you need to find the land for it. You need to build the transmission lines. You need in a specific way to overcome the myriad obstacles to building new stuff at large scale.

And you need policies that solve these problems in specific ways.

Timelines aren’t policies
I was frustrated during the 2020 Democratic primary by a tendency among journalists to evaluate plans based on how “ambitious” they were, generally defined by what timelines they selected for decarbonizing this or that sector of the economy.

Ambition is great. Man would not have attained the possible unless time and again he had reached out for the impossible.

But a timeline is not a policy. Bernie’s plan, for example, called for decarbonizing the transportation sector by 2030. Try to think about how you would actually do that. You’d have to make the sale of new internal combustion engine cars illegal basically right away. But not only is that wild politically, the capacity doesn’t even exist to make that many electric cars. It would be less exciting (but necessary) to try to spell out exactly what it is you are going to do to spur electric vehicle adoption. How does it work?

A lot of people got frustrated with pricing-centric ideas like a carbon tax or cap and trade. But one appealing thing about those ideas is that they are comprehensive and they denote a lever that reduces emissions rather than an aspiration to reduce them. When you decide the price stuff doesn’t work politically, then you’re in a world where you need a very detailed topic-by-topic plan, explaining exactly which subsidy carrots and regulatory sticks you are using to move emissions.

I’m not a price dogmatist, but the basic Hayekian point that the price lets you aggregate a lot of information is sound. Without it you have a very complicated policy task to solve and you do have to solve it — declaratory aspirations aren’t enough. That’s not to say they are bad, but if you are going to get angry about the lack of ambition in certain plans you owe it to yourself to be equally angry about the lack of detail in certain more ambitious plans.

The problem is very international
The global nature of the global warming problem is of course well-known. But I do think that it tends to fall out of view in some intra-progressive conversations about climate change.

Just eyeball this chart and you’ll see that US-specific measures are not the ballgame here.


Now, yes, the moral and ethical case for America to lead on emissions reduction is strong. We should not let the global dimensions of the problem paralyze us.

Still the fact remains that this is a global problem.

And much of the world is still at a level of economic development where its aspiration is to consume a lot more energy. There are substantial numbers of people, especially in sub-Saharan Africa and India, living with no electricity.


Even a very ambitious rollout of zero-carbon electricity in African is mostly going to improve lives by giving people electricity (it’s very useful) rather than reducing emissions, emissions that will likely rise as a result of economic development. Similarly, giving every Indian an electric car would lead to a huge increase in aggregate energy use because very few Indian people have cars.


These are not causes for inaction. Giving everyone in Africa access to a reliable supply of cheap, non-polluting electricity would be a huge win for human welfare. But it wouldn’t reduce greenhouse gas emissions and also wouldn’t change the larger point that African leaders are going to want their countries to industrialize, with all the implications for higher emissions from industry, agriculture, and concrete that follows from that.

Stepping back: As we know, asking American politicians to make present-day sacrifices to benefit a global public mostly in the future is very challenging.

If you take that exact same ask and bring it to countries that are poorer (so the marginal value of more energy consumption is higher), faster-growing (so present sacrifice for future gain is less appealing), but smaller than the United States (so local sacrifice for global gain is a worse deal) and the ask gets that much harder.

There’s some good news
I encounter a lot of people who say and do things about climate policy that don’t make sense to me, and it often turns out that they believe that, absent a radical change in policy direction, we are hurtling toward a level of climate change that foretells human extinction or the collapse of civilization. That context helps make their words and actions a lot more comprehensible.

But it’s not true.

The technical details of this are outside my wheelhouse but I’d urge everyone to read David Wallace-Wells on how the worst-case scenarios have become less likely and Kelsey Piper on why climate change is not a genuinely “existential” threat. Media industry gossip is closer to my wheelhouse, and something I’ve heard from several climate-focused journalists over the years is they don’t like to spend time correcting apocalyptic climate rhetoric because they believe strongly that global governments should act with more urgency so they think punching left like that is a bad idea. I see where they’re coming from there, and 100 percent agree that the focus should be exhorting more emissions-reduction policy, not infighting.

That said, I do worry about three problems with uncorrected apocalypticism:

In some cases I think it’s creating undue psychological distress among individual citizens, rather than raising pressure on political or economic elites.

Anchoring around the idea of “IPCC goals or apocalypse” (which to be clear is not what the IPCC is saying) can lead you to seriously underrate the value of marginal reforms, which exacerbates the failure to prioritize.

A lot of politicians — Joe Biden, for example — will casually toss off the idea of “existential” threat and then go on to propose Biden-esque meliorist solutions that are at odds with the rhetoric and makes them look a little ridiculous.

I’m not 100 percent sure what people, in general, should say or do about this.

But for the record, where we are with current policies is not great, but it’s well short of the level of warming described in the IPCC’s RCP 8.5 scenario from which the “worst case scenario” narratives are drawn.


This is very important because as Martin Wetizman has emphasized, in an expected value sense, a large share of the cost of climate change comes from the possibility of utter catastrophe (Toby Ord’s recent book on existential risk in general is excellent).

I bring this up not so much to say “calm down everyone,” but as to note that the risk of backsliding is underrated. The Trump Administration was not “doing nothing” on climate; they were seeking to shift the United States from the current policies’ path toward something closer to the “no climate policies” path. The Bolsonaro government in Brazil is doing something similar. If literally the only thing Biden achieves is to keep us on the current policies path, everyone is free to find that disappointing (I would be disappointed) but it’s still a meaningful contribution to avoiding total catastrophe.

Of course we should press for more than that. But “I want to avoid electoral backlash” is not just the motto of a coward, it’s an important piece of political stewardship. If coming out for a fracking ban cost Biden the presidency, that would have been a very bad climate outcome.

What is to be done?
That’s a lot of words and the answer is still: I don’t know.

I will say that relative to the media I consume, I think my analysis would tend to put less weight on the idea of fossil fuel companies as a Big Bad and more on general status quo bias combined with collective action problems. Why doesn’t your state pass a law eliminating mandatory parking minimums? Why doesn’t DC eliminate street parking on 14th Street and create protected bus lanes? It’s not Big Oil, it’s that people like their damn parking. And achieving a final ideological triumph over neoliberalism won’t change that either. And to be honest about it, while people like me who are eyeball-deep in land use and transportation issues find it natural to see these things as central to the climate problem, if you ask a west coast nature enthusiast who loves weekend hikes, she’ll tell you that the real solution is to get everyone electric cars.

Which is to say again that the problem is difficult and there is a genuine difficulty persuading people to genuinely prioritize climate — which is different from emphasizing the climate benefits of acting on their own pet issues or just kind of slapping climate branding on a comprehensive vision of social reform.

But my basic view is that when we see specific controversies come up, it’s constructive to keep in mind the real difficulty of making headway on the problem, the importance of the headway that has already been made, the need to keep the international dimensions in view, to push ourselves and our networks and allies to be better prioritizers, and to always remember that technological innovations are critically precise because they help cut through some of these Gordian knots.

Donald Trump’s coronavirus adviser Scott Atlas resigns

Donald Trump’s coronavirus adviser Scott Atlas resigns


Scott Atlas, a senior fellow at the rightwing Hoover Institution, was appointed in August after condemning state lockdowns on Fox News © AFP via Getty Images

Scott Atlas, Donald Trump’s most trusted coronavirus adviser, has resigned, bringing to an end a controversial tenure that epitomised many of the administration’s battles with public health experts over how to deal with the pandemic.

Dr Atlas confirmed on Monday he would leave his post following a stormy three months during which he pushed the US president to oppose coronavirus mitigation measures, drawing condemnation from prominent scientists including his own colleagues at Stanford University.

In a resignation letter dated December 1, Dr Atlas wrote: “We identified and illuminated early on the harms of prolonged lockdowns, including that they create massive physical health losses and psychological distress, destroy families, and damage our children.”

He added: “Although some may disagree with those recommendations, it is the free exchange of ideas that lead to scientific truths, which are the very foundation of a civilised society.”

While Mr Trump has refused to concede November’s presidential election, repeating unsubstantiated allegations of electoral fraud, Dr Atlas appeared to accept the result of the vote. “I sincerely wish the new team all the best as they guide the nation through these trying, polarised times,” he wrote.

Many of his opinions and statements run counter to established science and, by doing so, undermine public-health authorities

Mr Trump appointed Dr Atlas, a neuroradiologist and senior fellow at the rightwing Hoover Institution, in August following a series of appearances on Fox News in which he praised the president for opposing state lockdowns.

Within the administration, Dr Atlas proved a vociferous opponent of lockdowns, arguing instead for a response that would protect the most vulnerable while allowing the disease to spread in the wider community until herd immunity was achieved.

That approach won support from the president but provoked anger from many prominent scientists including at Stanford University, home to the Hoover Institution, who warned it would put millions of lives at risk.

In September, 78 Stanford scientists signed a public letter stating: “Many of his opinions and statements run counter to established science and, by doing so, undermine public-health authorities.”

Experts have criticised the Trump administration’s resistance to lockdowns even as cases, hospitalisations and deaths in the US all climb to record highs. The number of people in hospitals with the virus as of Monday was a record 96,039, according to the Covid Tracking Project.

Dr Atlas also ended up at odds with his colleagues on the White House coronavirus task force and elsewhere in the administration who were sidelined as his prominence grew.

He angered officials at the US Centers for Disease Control and Prevention, for example, when he pushed for the public health body to stop recommending that people without coronavirus symptoms be tested even if they had been in contact with someone with the virus.

Dr Atlas also publicly contradicted his fellow task force members Anthony Fauci, the head of the National Institute for Allergy and Infectious Diseases, and Robert Redfield, head of the CDC, after they told Congress that 90 per cent of Americans remained susceptible to the disease.

That row erupted when Dr Redfield was overheard on a flight saying: “Everything [Dr Atlas] says is false.”

Angela Rasmussen, a virologist at Columbia University, said: “He managed to spread misinformation, and indirectly, based on his incompetence and ignorance about infectious diseases, thousands of cases of Covid-19.”