Federalism

Trump's Threat to Withhold Federal Funds from States that Expand Voting By Mail Highlights Growing Menace to Federalism and Separation of Powers

A president who can attach his own new conditions to federal grants to states could use that power to undermine state autonomy on many issues - especially now that federal spending has been massively expanded during the coronavirus crisis.

|

Earlier today, President Trump threatened to withhold federal grants from the states of Michigan and Nevada if they proceed with plans to expand vote-by-mail options in order to make it safer to vote in the midst of the ongoing coronavirus pandemic. It isn't clear what specific funds Trump has in mind, or even whether he has any meaningful plan to make good on the threat at all. Still, the danger that the White House can use the threat of withholding grants to bully the states should be taken seriously. If the president is able to impose his own new conditions on federal grants to states and localities, it would be a serious threat to both federalism and separation of powers. The vast expansion of federal spending and state dependence thereon during the coronavirus crisis has made this an even more serious danger than before.

To my knowledge, there are no federal grants to Michigan, Nevada, or other states that Congress has conditioned on forbidding or severely restricting voting by mail. The extent of mail voting is one of of many aspects of election administration that the Constitution largely leaves to state governments.

In my view, expanding vote by mail makes excellent sense at a time when in-person voting could risk spreading a deadly disease, particularly among elderly voters and poll workers, who are especially vulnerable to the coronavirus. Empirical evidence undercuts claims that postal voting is particularly prone to fraud, or that it necessarily advantages one party over the other. In this 2014 post, I criticized claims that allowing early voting by mail exacerbates the problem of political ignorance.

But whether expanding mail voting is a good idea or not, the president has no authority to use federal grants to pressure states on the issue. The Constitution gives Congress, not the president, the power to allocate federal spending, including imposing conditions on state and local government grant recipients. Supreme Court precedent also imposes constraints on those conditions to protect state autonomy, most notably that any onditions  "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds,"  not added later by the president or by creative judicial interpretation of vague statutes.

If the president can get around such restrictions and impose his own new conditions on federal grants to state governments, he could use that power to bully states and localities on a wide range of issues. Conservatives who might be happy to see Trump wield that authority should ask how they would feel when Joe Biden (or some other future Democratic president) does the same thing. The same tools Trump uses to pressure blue and purple states can easily be turned against red states. Either way, centrally enforced homogeneity will undermine the variation in state policy that is crucial to coexistence in a diverse and deeply divided nation.

Those tempted to dismiss Trump's threat as mere bluster should recall this is far from the first time the administration has tried to bully states and localities by usurping the spending power. In a long series of "sanctuary city" cases, Trump has repeatedly tried to use that tactic to force state and local governments to cooperate with his immigration agenda. Nearly all court decisions on the issue (with one notable exception) have so far rejected the administration's tactics on the ground that Trump cannot impose spending conditions that were not authorized by Congress.

Many of the sanctuary city cases involved administration efforts to withhold relatively modest-size federal law enforcement grants. But the threat to federalism and separation of powers goes far beyond that specific case. The same tactics used by the administration in sanctuary cities cases, can also be used to coerce states and localities by threatening to withhold far more significant federal grants.

Congress, of course, also sometimes adopts ill-advised grant conditions. But the need to build up majorities in two houses representing a range of diverse interests makes it harder to enact sweeping new conditions, and provides some protection for the autonomy of politically diverse states. The president can act more aggressively and faces fewer such constraints.

The vast expansion of federal spending during the ongoing coronavirus crisis exacerbates the danger posed by executive usurpation in this sphere. Thanks to that expansion and the catastrophic decline in states' own tax revenue,  state and local governments are now more dependent on federal aid than at any time in living memory. In that state of affairs, a president empowered to attach his own new conditions to federal grants will have more opportunity to abuse that authority than ever.

Ideally, we should limit the danger by taking steps to ensure a quick recovery, while also carefully limiting proposed bailouts of states to those that are genuinely needed to deal with the emergency. But we must reckon with the possibility that the crisis will continue for a long time, and that massive expansions of federal spending will continue along with it.

If that happens, growing state dependency on federal grants will almost unavoidably have serious negative effects. For example, it will diminish state incentives to compete for residents who "vote with their feet," since one of the main incentives for such competition is the desire for new tax revenue—which will be less pressing the more states can instead get money from Washington.

As long as the crisis continues, we cannot prevent all such problems, or even come close to it. But vigilant enforcement constitutional constraints on presidential attempts to usurp the spending power can forestall at least one threat to federalism and separation of powers.

This specific threat by Trump may ultimately come to nothing. But even if he does not act on it, this probably isn't the last we have heard of presidential efforts to exploit the coronavirus crisis to attach new conditions to federal grants to state governments, thereby circumventing Congress and gaining new leverage over states and localities.

NEXT: Court Enjoins Enforcement of "Stay Safe Ohio" Order Against Gyms

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Give it up … The Babylon Bee you’ll never be.

    1. I Make Money At H0me.Let’s start work offered by Google!!Yes,this is definitely the most financially rewarding Job I’ve had . Last Monday I bought a great Lotus Elan after I been earning $9534 this-last/5 weeks and-a little over, $10k last month . . I started this four months/ago and immediately started to bring home minimum $97 per/hr

      Heres what I do……► Online Jobs provid

  2. I seem to remember Obama doing EXACTLY this — several “Dear Colleague” letters from the US Dept of Education to state K-12 officials come to mind.

    How was that different???

    1. I remember Obama being harshly criticized for those letters. Just as Trump is being criticized for this. In my opinion, trying to steal an election by suppressing votes, plus intruding on states’ rights, is more important than how colleges deal with internal disciplinary problems, but I get that others might find what the colleges were doing more objectionable…that’s a good-faith disagreement.

      So, I think your point is: Both Obama and Trump were doing really bad things, and it’s great that Obama was criticized and Trump is now being criticized. Right? Because it’s hard to read that from your post . . . you almost seem to be defending Trump for his latest despicable actions. You might want to clean that up, to make your actual stance more clear.

      1. I think maybe the point is that Obama got criticized, and none the less was permitted to do it. Are you suggesting that Trump should only face verbal obstacles?

        1. I think the point is that whenever Trump is criticized, there are some who seem to think “But Obama” or “But Hillary” is somehow relevant. I can just see Dr. Ed as a criminal defense attorney: “But Your Honor, other defendants did bad things.” OK, so what?

          Neither Obama nor Hillary are president. Trump is. So whatever bad things they may have done, or would have done, none of them is relevant to a current abuse of power.

          1. Did the Dear Colleague letters matter when Obama was President?

          2. “Precedence”

        2. What Obama was allowed to do was write a “Dear Colleague” letter. What Trump is allowed to do is issue a veiled or direct threat. Now, ACTUALLY FOLLOWING THROUGH would be, I think, impeachable. But if Trump wants to do his daily verbal or text diarrhea, and nothing more, then I think it’s fine. (Constitutionally-speaking…it’s still repulsive behavior. And for people who think that access to voting is A. Big. Deal. . . . even if Trump limits his idiocy to words and not actions, I suspect that some of the few persuadable voters will be less likely to vote for him come November.)

          1. It is not impeachable. Remember when the Senate accepted that the president can do anything that is not specifically criminally illegal in order to gain political advantage. Withholding funds to force voter suppression is allowed.

            1. I’ll just mention the legal point that what the Senate thinks is utterly irrelevant to what is or is not impeachable. What the Senate thinks is, of course, supremely-relevant to whether or not a president is convicted in a Senate trial, post-impeachment.

          2. The “Dear Colleague” letters were regs….

            1. Guidance, not rulemaking.

          3. If you didn’t think the “Dear Colleague” letter was a threat, you weren’t paying attention to anything in higher ed, where it was universally understood as a clear threat to comply with new standards or face huge fines and never-ending litigation.

        3. What’s this about? Is there something wrong with mail-in ballots? And the article suggests that Michigan wasn’t issuing ballots, just applications.

          1. NToJ,
            I think Trump’s point is: “I personally use mail-in voting, and that’s fine. But other voters are less ethical or honest than I am, so mail-in voting is a really bad idea in general and therefore should be suppressed.”
            Aside from the irony (re Trump’s integrity/honesty) being thick enough to cut with a knife, it is at least a logically-consistent argument; and I can’t say that about much of what our president says or write.

          2. Whatever the article or any other article says is irrelevant because Trump said “ballots”.

              1. Trump said “ballots”, then everybody (hostile to him) proceeds to respond as though he’d said “applications”.

                1. The president also said “applications.” Here is his Tweet,

                  https://twitter.com/realDonaldTrump/status/1263170880298942464

          3. Seems they’re more susceptible to fraud.

            I mean, if all these unopened ballots are just lying around on the sidewalk waiting for anyone to come along, pick them up, and fill them out, then send them in…

            https://www.890kdxu.com/nevadas-vote-by-mail-primary-stirs-fraud-concerns-as-unclaimed-ballots-pile-up-something-stinks-here/

          4. It’s about Trump being a fucking asshole, and his supporters going along, for the umpteenth time.

            Nothing else.

            Oh, except trying to stop people from voting, another GOP perennial.

              1. Oh great, elimination of signature verification AND all those mail in ballots just lying around on the ground?

                It’s seriously like just leaving hundred dollar bills on the ground and trusting no one to take them…

      2. My point is one of standards.

        Western (i.e. Southern) Maine has always allowed a rougher game of High School Basketball than Eastern (i.e Northern) Maine. But they are consistent on that.

        So too here — if Obama can do it then Trump can do it.

      3. Obama may have been criticized, but to my knowledge not by Ilya Somin, which suggests that he is a hypocrite and a partisan hack. Am I wrong?

        1. Always.

    2. Presumably because there was a textual hook thorugh Title IX. Not that I necessarily think Professor Somin would think it’s different, but it wasn’t a broad withholding of funds generally. It was an interpretation of the provision withholding funds for sex discrimination.

    3. How was that different???

      Read the statute and you’ll see.

    4. “I seem to remember…”How was that different???”

      You’re the one seeming to remember it, you tell us.

  3. “To my knowledge, there are no federal grants to Michigan, Nevada, or other states that Congress has conditioned on forbidding or severely restricting voting by mail.”

    I’d have to see exactly what the rationale was if they went so far as doing this, but are you sure there aren’t any federal grants conditioned on something general like ballot security?

    1. any federal grants conditioned on something general like ballot security?

      There is plenty of evidence available that states that vote by mail does not decrease or increase vote fraud. Which is already extremely rare in the US. There is one documented case that caused the election results to be thrown out which was for the North Carolina’s 9th District. And of course it was caused by a Republican.

      It should also be noted that requiring an ID to vote also doesn’t decrease or increase vote fraud. Nor does it increase the integrity of the election.

      1. I really think we need to distinguish clearly between absence of evidence, and evidence of absence. We have the former for vote fraud, in no small part because any effort to collect evidence gets shut down.

        1. That’s correct Brett. But the entire argument seems inane. It should be a no brainer that we need to have ID and proof of citizenship for voting, and we need to have procedures that don’t lend themselves to fraud.

          But Democrats say, “No, you can’t have secure voting and elections until you prove beyond a reasonable doubt that there is ‘widespread’ voter fraud.” Here, “widespread” is not a definite number of course, but whatever voter fraud you do manage to find, widespread is more than that.

        2. I thought that, after his election, Trump assembled a partisan group to investigate voter fraud. And after spending a lot of time and money doing this investigation, the conclusion was that voter fraud was almost non-existent, per capita, and did not seem to have an actual impact on election results. A big nothing-burger. There was so little evidence of fraud that the investigation shut down early. But surely you are not citing to this sort of ‘shutting down efforts’ as support for the proposition that voter fraud is a serious concern in this country.

          (Personally, I have seen voter fraud. It always has consisted of a voter officially living in Location X, but voting in Location Y [almost always, where they are attending university]. So, they vote only one time, but technically, not in the location where they are supposed to. I have to be honest…that’s the sort of “illegal” voting that does not bother me a bit.)

          1. “I thought that, after his election, Trump assembled a partisan group to investigate voter fraud. And after spending a lot of time and money doing this investigation, the conclusion was that voter fraud was almost non-existent, per capita, and did not seem to have an actual impact on election results. ”

            You got the first part right, but not the second part; What happened was that the group wasn’t able to do the investigation, because they got absolutely no cooperation with any state where Democrats were in charge.

            I think they probably could have managed to prove a significant amount of fraud in the states that did cooperate, but you’re right they were a partisan group, so they weren’t all that eager to prove the existence of Republican vote fraud. So they ultimately shut down.

            ” I have to be honest…that’s the sort of “illegal” voting that does not bother me a bit.”

            Might piss you off if you were a “Townie”, having to live long term in a town where the local politics were largely dictated by people who parachuted in for a few years, lived in a dormitory, and then fled the results of their votes.

            1. Nope. I lived for a time in Durham, NH, where the town was several thousand, and the students quintuple that. The students were there, were paying taxes, were using resources, were pouring money into the town…no, not an iota of concern that they also were voting here…they were here 9 months of the year (at a minimum), after all.

              1. You’re an unusual townie if you think that way. In my experience townies resent the students controlling the local politics.

            2. Since they could have proved alot of fraud in states that cooperated, they should have done that. The demonstration that there was significant fraud in a number of states could be used as a predicate for further state and federal investigations to determine its frequency throughout the country. That knowledge would be the basis of new legislation to prevent fraud in future elections.

          2. NH found a lot who voted twice….

            1. Bullshit. Another fake Dr Ed anecdote.

              Sadly, you’ve done it so often that half the readership automatically assumes you write untrue things. So, even when your broken clock is telling accurate time, we ain’t gonna believe you.

              1. To be fair, 2 is “a lot”… if you’re three years old.

        3. I really think we need to distinguish clearly between absence of evidence, and evidence of absence. We have the former for vote fraud, in no small part because any effort to collect evidence gets shut down.

          Bullshit on all counts.

          First, what you are really saying is, “I, Brett Bellmore, am confident there is widespread fraud, despite the lack of evidence. Indeed, that very lack just proves how clever the fraudsters are.”

          Second, there have been lots of efforts to find fraud, including some by Republicans, and they haven’t found significant amount.

          So shove it up your ass. What it’s about is vote suppression. The more careless members of your cult have admitted as much.

          1. Bernard, the fact that you resort to insults and expletives indicates a lack of confidence in your arguments. Besides, it would be nice to keep it civil.

            “Editor’s Note: We invite comments and request that they be civil and on-topic. “

            1. Bernard should be careful.

              Prof. Volokh censors liberals, moderates, libertarians, RINOs, and especially Artie Ray (banned on Wednesday, Oct. 6, 2010, at 6:02 p.m., for those with ostensibly poor memories).

              You, Publius, however, are welcome to write about gassing liberals, imposing the “Second Amendment solution,” putting Democrats face-down in landfills, sending me to a Zyklon B shower, knocking on my door, or just about anything you wish to contribute here . . . so long as you keep it conservative.

              1. Welcome back.

      2. There’s more than one documented case of voter fraud that swung an election.

        https://www.nytimes.com/1994/02/19/us/vote-fraud-ruling-shifts-pennsylvania-senate.html

        1. Congrats on your deep cut story that does not really prove the widespread federal scheme many on here are taking on faith.

          1. In this vein, a breaking story:

            Democratic Party official admits to stuffing ballot boxes in Philadelphia elections

            “A Philadelphia elections judge and Democratic Party official pleaded guilty Thursday to stuffing ballot boxes in favor of Democratic candidates in elections in 2014, 2015 and 2016, while collecting thousands of dollars in cash to make the changes.

            Prosecutors hinted at an even broader conspiracy by an unnamed “political consultant” who charged his clients “consulting fees” then used some of the money to pay off multiple Election Board officials.

            The U.S. Attorney’s Office in Philadelphia won Thursday’s guilty plea from Domenick J. DeMuro, who served as a judge of elections, responsible for overseeing a polling place during voting. DeMuro was also a Democratic Party ward chairman.

            He charged up to $5,000 an election to ring up votes for the political consultant’s clients.

            Prosecutors said DeMuro stuffed the ballot box in elections for judicial candidates as well as federal, state and local offices.”

            1. Truly a national plot. None of these suppressive tactics will help much if they’re paying off election officials.

              These weak-ass few and far between anecdotes rather make the case that your assumption of massive fraud in national elections is ridiculous.

    2. There were grants through the Help America Vote Act of 2002, but I don’t believe they are ongoing, and were a one time thing.

    3. Somin clearly said “to his knowledge” meaning he is not sure of that. In fact, he probably hasn’t the slightest clue.

      1. To be fair, unless the policy gets beyond a tweet, it’s probably not going to be specified enough to analyze.

  4. The menace to federalism is not that the federal government imposes conditions on funds that it gives to the states (whether to thwart Democrat voter fraud or any other reason). The menace to federalism is that states are dependent on federal funds.

    This is just part and parcel of the wholesale usurpation of power by the federal government. In 1859 federal spending was around $2.70 per person, per year, or $80 adjusted for inflation. And with that money, the federal government was able to provide a common defense and carry out the limited powers delegated to it by the States under Article I of the constitution. Today that number is around $11,000, all of it for no good reason.

    1. Well, no good reason except the invention of ICBMs…

      1. And we never use them.

        1. They get used every day. Peace is their profession.

    2. per person, per year
      all of it for no good reason.

      Yeah, why can’t the government be just like 1859, with all those persons who were SUPER cheap for the government for some reason? Interesting choice of date, makes one wonder about you…Not even against the New Deal, against the post-Civil War setup. Like some sort of hipster radicalism.

      The quality of life and death rates we allow now all require a government infrastructure that I’m sorry you don’t like, but just about everyone else does, and which you have no doubt benefited from a whole bunch.

      1. No, the government infrastructure you think is required is not only unnecessary, it is actively harmful to quality of life.

        1. Like the infrastructure that keeps aircraft from crashing into each other?

        2. No evidence offered. Because you’re operating on pure ideology here.

  5. If, as some (in particular, as some in the Obama administration have argued in writing), the President already has the statutory authority to close post roads and to operate post services as he sees fit, why are funding concerns even an issue? President Trump is, if nothing more, a master of misdirection: drawing attention away from existing statutory authority is perhaps a tactic — a golden apple for the fairest Somin among us.

  6. Every State in the Union offers some sort of Vote by Mail. But it comes down to the restrictions placed on who can do so. Ironically – NY had one of the more stringent requirements on who could vote by mail. Until recently.

  7. Elections officials from all political stripes acknowledge that mail-in ballots are far more vulnerable to fraud. Stories of political operatives who routinely scam senior citizens out of their absentee ballots are so widespread that the term “granny farming” was coined. Even the New York Times, when reporting on suspicions of election fraud in North Carolina last year, noted that “absentee ballots are especially susceptible to manipulation.”

    And allowing third-party ballot delivery would do nothing to reduce that vulnerability. Recent history indicates it would make it worse.

    In Texas, paid political operatives known as politiqueras run rampant in the Rio Grande Valley, collecting ballots and manipulating electoral outcomes. In Florida, an elderly man who was blind swore an affidavit that an operative scammed him out of his absentee ballot.

    In fact, the concept of allowing a third party to deliver or submit a ballot on another’s behalf is known by election workers as “ballot harvesting.” While it has only been legal in a single state for one election cycle, its impact has already been profound.

    California became the first state to legalize the practice, and it was practiced there during the 2018 midterm election cycle. Following huge gains by California Democrats in those elections, political operatives from both parties agreed that the Democrats’ mastery of ballot harvesting led to seven GOP-held congressional districts flipping blue, including every seat in once reliably Republican Orange County. The provision on page 643 of Pelosi’s ACCESS Act bill would have extended this practice nationwide. Link

    1. This sounds like a bunch of anecdotes. (The Texas one is odd, too, since politiqueras bribe people for their in person vote.) When you say “political operatives from both parties agreed…” can you link? And you kind of dance around whether it’s nefarious. Maybe it changed the outcome because mail-in ballots increased turnout, not fraud. I assume you don’t have an objection to increased turnout, only fraud.

      1. It’s an excerpt from the linked piece. For the particular part you asked about they link this: https://www.sfchronicle.com/politics/article/California-s-late-votes-broke-big-for-13432727.php

        I think the CA elections were swayed because Democrats had people going door to door and “ballot harvesting.”

        I don’t think I have a problem with voting by mail, as such, nor increased turnout. But “ballot harvesting” seems pretty obviously problematic and ripe for fraud and abuse.

        Although I’m not sure about increased turnout. We should probably limit voting to people who own property or are net taxpayers.

        1. But then when you have California mandating balloting by mail, but then opening special in person voting centers, but just in the heavily Democratic areas….

          1. 1,000% fabrication. Every word of that is a lie.

            1. True or False:

              The State of California opened a new, in person voting area, in the heavily Democratic area around the 30th Street in Lancaster, for the 25th Congressional District special election, despite everyone receiving a mail in ballot, just the week before the final election.

              True or False: There was no such opening in any heavily Republican area.

              https://signalscv.com/2020/05/trump-calls-25th-district-election-rigged-after-new-polling-location-opened/

              1. Notice the change from plural to singular in your comments

    2. Except…the states that have been doing it for years with few problems demonstrate otherwise.

      1. What are you talking about? Ballot harvesting has only been legal in one state for one election cycle, CA in 2018.

        1. This is the second time I’ve run across this. “Ballot harvesting” was done by both parties in California. The term makes it sound like unsealed ballots were collected and returned to the collection point– alla the North Carolina incident–with an intervening time interval in which nefarious actions could be taken. In Pennsylvania the ballot is sealed in an inner envelop which is in turn placed in a second envelop which must be signed. California employs the same system.

      2. I was referring to the vote-by-mail states.

  8. Just not note, there was no problems with, and no surge of cases after, the WI and IL primary elections during the pandemic. We can run November like normal.

    If we do, then people on BOTH sides can’t claim it was stolen.

    1. Except Trump claimed without evidence that 3 million people illegally voted for Clinton costing him the popular vote. If there is one thing I’m certain of: Trump will be claiming the election was rigged/stolen in some fashion regardless of the outcome. It could be because he lost the whole thing, lost the popular vote, won both but didn’t get a majority of the vote, the Democrats retain the House, or any other reason the votes don’t go his way. Even under the unlikely scenario there is a red wave, he’ll probably be saying the election was rigged in the places Democrats won. In the absence of universal adulation he will say there is a conspiracy against him. He could win literally every vote in the country save one, and he would go on a long twitter rant about how that one person is illegally being unfair to him and committing treason.

      1. Yea yea, and the left went on forever about butterfly ballots and hanging chads…I get it.

        Let me rephrase then….if we run November like normal, than there won’t be any EXTRA reasons for one side or the other to claim the election was stolen.

        1. here won’t be any EXTRA reasons for one side or the other to claim the election was stolen.

          Who said Trump needs reasons. His own unhappiness with the results will be enough.

          1. Yes, nobody needs any reasons, free speech and all that. But there won’t be any extra pegs to hang your hat on.

            Besides, I suspect 2016 will be worse if Trump wins again.

            1. *it will be worse than 2016

  9. Somin forgot to mention the threat to the power of the purse. The House won’t back the border wall? Blue states don’t back the border wall? Oh, wait a minute, they do! Their federal law enforcement grants got re-purposed. By the way, nice little road and bridge budget you got there, Massachusetts. Shame if anything should happen to it.

  10. Also? Expect Trump shortly to announce that any states which don’t re-open their economies as recklessly as he prefers, and kick people off unemployment to get them back into the packing plants, can kiss their unemployment supplements goodby.

    We’ve got ourselves a full-blown dictator now. And a Republican Party which backs dictatorship.

    1. I’ve reported this comment to the politburo. Expect a knock on your door in the next day or so.

    2. Here’s a bucket of water; take care of that hair on fire.

    3. “full-blown dictator”

      LOL

      Take a walk or a drink and relax.

      Making your comment confirms you do not believe the hyperbole nature of the comment. If he was a “full-blown dictator” you would never be making it, you’d be too afraid.

      1. That isn’t what dictator means, Bob. Try harder.

        1. “That isn’t what dictator means”

          “Thus, in modern usage, the term “dictator” is generally used to describe a leader who holds or abuses an extraordinary amount of personal power. Dictatorships are often characterised by some of the following: suspension of elections and civil liberties; proclamation of a state of emergency; rule by decree; repression of political opponents; not abiding by the rule of law procedures, and cult of personality.” wikipedia

          “suspension of …civil liberties; … repression of political opponents”

          Please show me a dictatrship which does not employ a secret police and arrest or kill political opponents.

    4. Someone said back during the 2016 campaign that Trump’s detractors take him literally but not seriously while his supporters take his seriously but not literally. I find it astonishing that Lathrop is still doing the same thing.

      Trump can say any damn thing he wants. But until he acts on it, he’s a blowhard, not a dictator.

      1. Exactly. Even a lot of his supporters are willing to say he’s a blowhard. We’re just willing to endure it as long as nobody better on policy is available.

        1. Brett,
          I can think of about 150 ultra-right Republican politicians who would be just as consistent on conservative policy as Trump, with the benefit of not being pathological liars, sexual molesters, insane, or delusional. All it would have taken in 2016, or every year since, is to form a consensus as to a “Trump, but with integrity” alternative. We Republicans have no one to blame for Trump but ourselves.

          1. None of whom would have won in 2016.

            Last GOP wins in the 3 states that decided it. Wisconsin 1984, Michigan and Pennsylvania 1988.

            1. Jeb Bush would have cleaned Hillary’s clock. Marco Rubio very likely the same. We are, of course, playing a speculative game…you and I have NO IDEA how the electorate would have responded to either of those two, running without the corrosive effect of Trump cutting them down to his moronic followers/acolytes.

              And, Brett’s premise did not talk about, “Who would have been a better candidate in terms of winning an election?” He specifically framed the question as, “We’re backing Trump only because he was so uniquely good at articulating values on policies we care about.” It’s the latter premise that is, objectively, wrong on its face.

        2. Brett,

          We are beyond policy disputes. He’s not just a blowhard. He’s a menace.

      2. until he acts on it

        “The threat is stronger than its execution.” – Aron Nimzovitch

        But he is acting on his aspirations to be a dictator. Firing IG’s because he doesn’t like them doing their job? Punishing Amazon because he doesn’t like the WaPo’s reporting? Demanding that officials pledge absolute loyalty, and issue statements just short of worship? Appointing unqualified family members and cronies to important jobs?

        Sure. Kushner is just the guy to head up Middle East peace efforts, and Covid-19 vaccine development, and who knows what else.

        Look, Rossami. The guy wants to be a dictator. He has no notion of any limit on his powers. To support him, to vote for him in November, is to vote to send the country down the drain.

        1. “Firing IG’s because he doesn’t like them doing their job? ”

          I see this sort of thing from you all the time. “Firing IG’s” is objective fact, and all Presidents fire IG’s.

          “because he doesn’t like them doing their job” is your presumption of ill intent, that you apply to everything Trump does.

          You could have said, “because he doesn’t like how they’re doing their job”, and been reasonably grounded in the facts. But, no, you had to go there.

          Well, not really, you didn’t need to go there because you started there, and have been there for at least 4 years…

          1. So give us a list of all the fired IGs and the presidents that fired them.

          2. Yeah, Brett, look it up. Your knee-jerk assumptions are getting you in trouble again.

            Obama fired precisely one IG. And laid out his cause quite carefully. And he still sued. And lost.

            1. “Obama fired precisely one IG”

              So Brett is right, all presidents do fire some IGs.

              1. Your pedantry only highlights your ridiculous double standard.

        2. “Firing IG’s”

          Oh noes, he fired a subordinate officer from an office that has only existed in its present form since 1978.

          Clutch those pearls harder.

          1. The TDS runs strong in this one.

  11. “There’s little doubt that as the number of mail-in ballots increases, so does fraud. A 2012 report in The New York Times noted that voter fraud involving mail-in ballots “is vastly more prevalent than the in-person voting fraud that has attracted far more attention, election administrators say. In Florida, absentee-ballot scandals seem to arrive like clockwork around election time.” According to a Wall Street Journal report on voter exploitation in Hispanic communities in Texas, mail-in ballots have “spawned a mini-industry of consultants who get out the absentee vote, sometimes using questionable techniques.” Poor, elderly, and minority communities are most likely to be preyed upon by so-called ballot “brokers.”

    Concerns about fraud in mail-in ballots were serious enough that a 2008 report produced by the CalTech/MIT Voting Technology Project recommended that states “restrict or abolish on-demand absentee voting in favor of in-person early voting.”

    “The convenience that on-demand absentees produces is bought at a significant cost to the real and perceived integrity of the voting process,” the report added. “On the face of it, early voting can provide nearly equal convenience with significantly greater controls against fraud and coercion.” Similarly, another academic study done in 2008 from Reed College flagged various concerns related to absentee voting and conceded there is a “great deal of literature on turnout” but when it comes to mail-in ballots there is “a dearth of research on campaign effects, election costs, ballot quality, and the risk of fraud.””

    https://www.realclearpolitics.com/articles/2020/04/24/28_million_mail-in_ballots_went_missing_in_last_four_elections_143033.html

    1. The study has no data behind that particular proposition.

  12. I’m more interested in what he thinks is illegal about sending applications. Particularly as it applies to Michigan/Nevada and not the other states that do it.

    Will anyone ever ask him to name the elements of something he claims is an offense and how they are met? Probably not. But a man can dream.

    1. Again, Trump said “ballots”, not applications.

      1. And he was wrong/lying

        1. Yeah, he’s wrong a lot, and lies about as often as any politician, though most of it is braggadocio that’s not really intended to be believed.

          1. Because he’s a terrible person with zero morals or respect for others. And you support him. Well done.

          2. lies about as often as any politician

            Bullshit.

            Lying is a reflex with Trump. Something, anytrhing,happens he doesn’t like? It didn’t happen, per Trump.

            You can’t hide behind “All politicians lie.” Trump is sui generis.

          3. Brett Bellmore : “and lies about as often as any politician”

            Let’s hear it for our very own Baghad Bob, folks! A round of applause for Brett : specializing in the choicest up-is-down and black-is-white rhetoric since January 20, 2017.

            I gotta admit there’s something dizzyingly meta about lying about how much Trump lies – but it could possibly get even worse. Brett might chose to defend his absurd statement, and so lie about lying about lying……..

      2. Brett Bellmore : “Again, Trump said “ballots”, not applications”

        Making excuses for President Dumpster-Fire is a sisyphean task, and maybe we should cut Brett some slack. But for the record :

        (1) DJT tweeted threats / invective against Michigan because the state was mailing “ballots” to its citizens.

        (2) Told he was wrong, DJT changed “ballots” to “applications” and retweeted six hours later. The threats and invective were unchanged.

        This happens so very often. A Trump cultist stubbornly pushes some inane defense to explain the current embarrassment, only to have Trump himself cut that defense off at the knees. It’s a hard life, that of the Trump cultist……

        1. Trump continued to say it was illegal, even after the correction. Which is manifestly is not.

  13. Hasn’t this been going on since at least the late ’70’s? Didn’t states both raise their drinking ages and lower speed limits in the ’70’s and ’80’s due to the feds threatening to withhold highway funding if they failed to comply?

    1. Yup, I became old enough to drink twice thanks to that.

      1. Ha ha me too! But Dyzalot that was Congress doing it, and they are permitted to put strings on federal funding unless it’s deemed overly coercive. The point is that the President cannot attach conditions not specified by Congress.

  14. Expanded voting-by-mail is a good idea. Sure it could be done wrong – so can lots of other things.

    The feds paying for states to implement voting-by-mail, on the other hand, is a bad idea. Do it yourself with your own state’s money.

    1. “Expanded voting-by-mail is a good idea. ”

      Elections should be in person on a single day. If you have a compelling reason, you can vote absentee.

      This was the system until very recently.

      There has been no increase in voting due to expanded options. No election since 1960 has exceeded that years 63.8% turnout.

      What it has done is increase controversy, each party tries to manipulate the system.

      1. ” No election since 1960 has exceeded that years 63.8% turnout.”

        Turnout is measured in two ways. By counting the total number of votes cast or as you have done, by comparing the total number of votes cast as a ratio to the total number of voters registered to vote. Your choice of measurement doesn’t support the claim you have made. If we were to change the election laws so that dogs are eligible to vote, and as a result every single human shows up at the polls to cast a ballot, the total number of votes cast will go up but the percentage measurement will go down, because the dogs didn’t vote.

  15. I would not think federalism applies here. Article I, Section 4 gives Congress the explicit power to alter state laws that regulate the “time, place, and manner” of holding elections.

    But Trump’s threat may be problematic for the same reason his threat to withhold federal funds from sanctuary cities didn’t work — because he may be arrogating to himself a power that belongs to Congress.

    1. That only applies to Congressional elections.

  16. In private business, Mr. Trump threatened to take legal of various sorts to get people to do what he wanted whether he had any legal basis for it or not. Except for narrow contexts like debt collection, there’s nothing illegal about threatening to take action.

    I’m not sure that he cares at this point whether law professors will get upset anout it.

  17. Hmm. Here in Oregon, all voting is by mail (no stamp needed), or by drop-box as late as 8:00 pm on voting day. That must drive Trump nuts.

  18. Well our choice is Trump’s threat or the Democrat’s threat to federalism. So Ilya Somin, which threat is worse? Which threat do you prefer? It is a choice of two evils, but we still need to pick the lesser evil, and at the moment that seems Trump, not Biden and the Democrats. Or do you prefer Biden, Whitmer, Pelosi, Schumer, AOC, Schiff, Ilhan Omar, Ayanna Pressley, Rashida Tlaib to protect our rights and support Federalism?

    1. Prof. Somin lays out the threat to federalism here. You just invoke Democrats.

      Kinda shows you’re maybe not so much voting for the lesser of two evils as much as rationalizing negative tribalism

      1. LL is not being partisan, he is pointing out the existence of a real threat to election integrity that the Democrats have been caught committing much more often than their opponents, all the way back to the Rutherford B. Hayes administration. It’s not prejudice if it really happened that way, and it did.

        1. Threats coming via reality usually don’t have only a cite to Rutherford B. Hayes.

        2. “LL is not being partisan, he is pointing out the existence of a real threat to election integrity that the Democrats have been caught committing much more often than their opponents”

          This is the sort of fact which reality-based observers might have cause to doubt.

      2. LOL, you know nothing about me, that is for sure. I am just invoking reality. There are only two realistic choices, Democrat or Republican. I have never in my life voted for either or those in a Presidential election, so don’t put me in your per-ordained tribe. Mostly I have voted third party, and realized that is useless. Yet I refuse to vote for someone that is determined to wreck our country. That means in the last election I didn’t vote Trump, didn’t vote Clinton and skipped the third party because they have no chance. I will do that yet again. I don’t waste your time telling me I am not a good citizen or have no right to complain. I have every right to complain under the Constitution to not vote for people determined to undermine the Constitution and who have colluded to to keep anyone else of the ballot.

    2. ” It is a choice of two evils, but we still need to pick the lesser evil, and at the moment that seems Trump, not Biden and the Democrats. Or do you prefer Biden, Whitmer, Pelosi, Schumer, AOC, Schiff, Ilhan Omar, Ayanna Pressley, Rashida Tlaib to protect our rights and support Federalism?”

      I prefer a grownup-in-chief to our current toddler-in-chief. I would have preferred the Democrats to have offered up a different choice, but I don’t consider the current incompetent to be a lesser evil. Mitch and his buds had a chance to put Pence in charge, but they passed because party.

  19. I have no idea how elections are ‘secured’ with vote by mail. Can anyone explain that? (I searched online, it’s a tough subject to search for.)

    1. In Oregon, every voter returns their ballot in a secrecy envelope that has a place for a signature. When ballots are returned, election workers compare the signature on the envelope to a reference sample signature collected when the voter registered to vote. Ballots with signatures that match are moved down the line, where they actual ballot is removed from the secrecy envelope, and then fed into the counting machine that actually reads the #2 pencil marks on the actual ballot. When the signature doesn’t appear to match, the intact secrecy envelope is held. Political parties are allowed to have observers watching the election workers who handle the ballots. Since each county has only one counting operation, the parties are easily able to produce enough observers., unlike the situation when traditional polling places were used.

  20. Just a thought for the lefties/liberals on here.

    In the past, increased turnout was presumed to help them, at least in presidential years. It certainly did for Obama, who got out marginal minority voters. But 2016 showed the Sailor Strategy of getting marginal white voters out to vote for Trump swung the election his way in key states. Increased turnout should not be presumed, in this election at least, to benefit your side’s electoral chances.

    1. If more people voting leads to more GOP victories, so be it.

      It’s a moral good expand the voting polity; ensures we get the government we deserve.

      1. “It’s a moral good [to] expand the voting polity'”

        That is a normative statement. Empirically, it may or may not result in a better society. But if your standard of “moral good” though is merely that we “get the government we deserve” than, well, than it’s impossible to limbo under.

        1. I don’t believe one can empirically measure ‘policy quality’ generated by a given electoral system. Which leaves us in normative-land.

          But even if you could make an empirical analysis of the issue, any measure would have to be nonpartisan, i.e. my side winning or not can’t be part of the calculus. Which makes your point irrelevant to the merits of expanding the franchise.

          1. Oh? Well you can measure things like GDP and standard of living and self reported polling questions related to happiness and self-actualization, which leaves us back into empirical land. There is a difference, say, between America and Mongolia or Saudia Arabia. Wasn’t the standard end of history trope is that we all would be trying to “get to Denmark”?

            You made a normative statement, sure, that’s fine. But own up to it at least, sheesh.

            1. Uh, I did own up to it. I just challenge the utility of empiricism in figuring out policy outcomes based on style of government.

              Haha, there’s enough confounding variables associated with party affiliation, I highly doubt that analysis is viable.

              Different countries are different, and I love mine. But there’s a reason political science doesn’t measure goodness.

              You can’t quantify everything. You can try, but for stuff like goodness you’ll just end up validating the experimenters’ point of view. For instance, look at the various liberty indexes floating around the ‘net. They’re lobbying docs, not empirical studies.

              1. Ye gads. You didn’t own up to it, you essentially replied that all normative values are equally as good since nothing can be measured. When I pointed out that there were measures, ones accepted at the highest levels too (and it goes without saying no measure is perfect), you retreat into another post-modernism that because no measure is perfect, why bother to measure at all.

                Look, I’m no positivist, but I’m with Lord Kelvin: “When you can measure what you are speaking about, and express it in numbers, you know something about it, when you cannot express it in numbers, your knowledge is of a meager and unsatisfactory kind; it may be the beginning of knowledge, but you have scarely, in your thoughts advanced to the stage of science.”

                1. Slap a poll or survey on that sucker and then it’s a number and it’s objective. Sure…

                  It’s a big trend in education. Put a B on an essay and that’s subjective and biased. Make up five totally subjective numbers on a rubric, average them, then it’s objective.

      2. It’s a moral good expand the voting polity; ensures we get the government we deserve.

        You mean, in the H. L. Mencken sense?

        1. That is where I got the vote from. I find something of a dark comfort in it these days.

    2. ” But 2016 showed the Sailor Strategy of getting marginal white voters out to vote for Trump swung the election his way in key states.”

      Herr Trumpenfuhrer was particularly hard on the states that tipped him to victory. If they vote for him again, it’s their own damn fault. His “easy to win” trade wars came down particularly hard on soybean farmers, for example. His current attempts to deflect any criticism of his incompetence by claiming that it’s coming from “radical socialists” and irrational Oompa-Loompa-haters shows desperation. If it works, then our nation deserves what it gets.

  21. Didn’t the nationwide 55 mph limit happen the same way? It was wrong then, too, but this nonsense predates Trump.

    1. Got Congress to go along on that one, IIRC. Whole different ballgame when it’s just the executive.

      1. Congress actually has the authority to decide spending by the Treasury. The President lacks this authority, by design of the Founders.

  22. Mitch and his pals didn’t think there was anything wrong with doing this to Ukraine, what’s the likelihood they’d convict now that he’s abusing his power with Americans?

  23. It’s not like this is new; Nixon, in ’74, used it to impose a national speed limit.
    It may not be good policy, but it seems a bit late to gripe about it now.

    1. As has been said now thousands of times, CONGRESS attached those strings to federal highway funding, not Nixon. It’s not the strings per se, but who gets to do the attaching.

Please to post comments