Constitution

Going Rogue

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As we enter the height of presidential campaign season, the Trump administration is making its case for a second term in the White House. And oh what a case it is.

It is only Wednesday, but already this week we have gotten plenty of fun news. The Secretary of State announced that the United States would impose sanctions on a prosecutor of the International Criminal Court who is investigating American personnel for war crimes. The Center for Disease Control announced an order prohibiting evictions of private tenants from privately owned residences for unpaid rent. The president himself encouraged his supporters in North Carolina to commit vote fraud.

And now, a memo directing the Office of Management and Budget to withhold federal funds from "anarchist jurisdictions" like, um, New York City. The key element:

Sec. 3.  Restrictions on Federal Grant Funding.  To advance the policy set forth in section 1 of this memorandum:

(a)  Within 14 days of the date of this memorandum, and updated as appropriate but no less than every 6 months thereafter, the Attorney General, in consultation with the Secretary of Homeland Security and the Director of OMB, shall publish on the Department of Justice website a list identifying State and local jurisdictions that have permitted violence and the destruction of property to persist and have refused to undertake reasonable measures to counteract these criminal activities (anarchist jurisdictions).

(b)  In identifying anarchist jurisdictions, the Attorney General, in consultation with the Secretary of Homeland Security and the Director of OMB, shall consider, as appropriate:

(i)    whether a jurisdiction forbids the police force from intervening to restore order amid widespread or sustained violence or destruction;

(ii)   whether a jurisdiction has withdrawn law enforcement protection from a geographical area or structure that law enforcement officers are lawfully entitled to access but have been officially prevented from accessing or permitted to access only in exceptional circumstances, except when law enforcement officers are briefly withheld as a tactical decision intended to resolve safely and expeditiously a specific and ongoing unlawful incident posing an imminent threat to the safety of individuals or law enforcement officers;

(iii)  whether a jurisdiction disempowers or defunds police departments;

(iv)   whether a jurisdiction unreasonably refuses to accept offers of law enforcement assistance from the Federal Government; and

(v)    any other related factors the Attorney General deems appropriate.

(c)  Within 30 days of the date of this memorandum, the Director of OMB shall issue guidance to the heads of agencies on restricting eligibility of or otherwise disfavoring, to the maximum extent permitted by law, anarchist jurisdictions in the receipt of Federal grants that the agency has sufficient lawful discretion to restrict or otherwise disfavor anarchist jurisdictions from receiving.

As with many executive orders issued by this president, this one might be a lot of public relations fanfare with very little policy punch. Once the OMB starts getting down to legal technicalities, it might well find that lo and behold there are very few federal funds that can be conditioned under existing statutory authority on whether a jurisdiction engages in adequate law enforcement. Of course, that alone might not be enough to prevent the administration from trying to push the envelope and wait for a court to strike down their efforts sometime next year.

At this point, it is yet another demonstration that this administration cares not a whit about about the proper constitutional separation between federal and state authority. There are plenty of local political officials who amply deserve losing office for neglecting their responsibilities for providing the effective protection of individual rights of the citizens who live within their jurisdictions. Whether any of that will redound to Trump's electoral advantage remains to be seen, but the president seems incapable of recognizing the limits on his own legal authority or of understanding the basic features of the American constitutional system.

Meanwhile, Joe Biden answered a question about presidential national mask mandates by asserting that "I am a constitutionalist." Unfortunately, he did not follow that up by recognizing that the president has no authority to issue national mask mandates, and he contrasted his own concern with constitutional limits with the apparent lack of such concern on the part of the other candidates for the Democratic nomination for the president (one of whom he selected as his vice president). On the whole, not a reassuring message about either party's commitment to respecting constitutional limits on power.

Pick your poison.

NEXT: George Mason University President Announces Anti-Racism Will Be "Important Component" of Reaccreditation

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  1. Four years ago, I would have cared — I don’t anymore.

    These are not normal times and Lincoln did far worse, as did FDR.

    GO, TRUMP, GO!!!

    1. Exactly. FUCK THE CONSTITUTION. Fuck our laws. Let’s sanction those bastards at the World Court. Bunch of do-gooders. Give me some good ole neo-Nazis any day . . . much better than liberals.

      1. Trump is NOT a Neo-Nazi, but if I were forced to chose between them and the Bitchy Little Marxists, with no third option, rest assured that I would not chose the Bitchy Little Marxists.

        As an aside, do we even *have* more than, maybe, a couple hundred Neo-Nazis in this country? Total?

        I know everyone fears them, but then we also fear Great White Sharks and I honestly believe there are a lot more of those….

        1. Ever wonder why whenever the media wants to find a quote from the KKK they scare up David Duke (the washed up guy from the culture wars in the 90’s who claimed to be a high ranking Klan member turning out to just be a self declared guy in a white robe) from whatever he is up to these days?

          The answer is they can’t find any organized Klan to give them a quote because there simply is NONE in the country, but they need to keep up The Narrative and specter that there is a ton of Klan so call up David Duke and get him to opine. “Done and done” then says the lazy reporter.

            1. Prosecutors also said Flynn committed perjury and Rittenhouse is a double murderer.

              1. Yes, because both of those things are true.

                1. Yes, because both of those things are true.

                  If you’re so stupid that you don’t know the difference between murder and self-defense (and you clearly don’t) then perhaps you’d be better off just logging off permanently and saving yourself future embarrassment.

                  1. “If you’re so stupid that you don’t know the difference between murder and self-defense (and you clearly don’t) then perhaps you’d be better off just logging off permanently and saving yourself future embarrassment.”

                    Same for you.

              2. Although Flynn rather transparently did commit perjury, I’m not aware of any of the prosecutors involved in his case actually saying so.

                1. In the first FBI record of that conversation, the agents said they did not believe Flynn was lying. Then their more political superiors got involved and it changed.

          1. “Ever wonder why whenever the media wants to find a quote from the KKK they scare up David Duke”

            He’s not currently in prison, seems likeliest.

        2. “As an aside, do we even *have* more than, maybe, a couple hundred Neo-Nazis in this country? Total?”

          Pop out of Massachusetts and visit, say, Northern Idaho. then reconsider just how many people it takes to make a significant disruption to American society.

          https://en.wikipedia.org/wiki/Tom_Metzger

          You might also look up The Order (white supremacist organization)

    2. I suppose it’s good to have someone who represents the viewpoint and can check our complaints about “them.”

      That said, I seem to recall that people in Germany in the early 1930s were saying the same thing — times are really tough, something needs to be done, and this constitutional norm shit is really prissy.

      I seem to recall Oren Kerr saying before the election that if you want someone who cares about constitutional norms, Trump is not your candidate.

      1. For gods sake, obama and bush before him threw out the last remnants of constitutional norms, as have scotus and congress in parallel Trump is not unique in this, and in many ways more restrained then obama ever was in his use of executive powers. Trump talks and threatened an awful lot, but the actions are rarely as severe as what the chattering class claims.

        I refuse to be gaslit into voting for the totalitarian marxist wannabes in the dnc

        1. ” Trump is not unique in this, and in many ways more restrained then obama ever was in his use of executive powers.”

          Trump has been extremely ineffective at putting his dictatorship into effect. You see this as an argument FOR Trump keeping the job?

      2. Norms are the people in government trying to protect the life, liberty, and property of citizens.

        Democrat governments allow riots and release felons without charge while using the full force of their institutions to close churches and hair salons.

        1. “Democrat governments allow riots”

          The current Republican government has a poor history of stopping them.

          1. The current Republican government has a poor history of stopping them.

            The stupidity of that comment cannot be overstated.

            Remind us all who it is that controls law enforcement in every single city and state in which the rioting has been going on for the past 3 months, as well as the decisions to repeatedly play catch-and-release with the perpetrators.

            1. “Remind us all who it is that controls law enforcement in every single city and state in which the rioting has been going on for the past 3 months,”

              President Trump.

              “The stupidity of that comment cannot be overstated.”

              You brought your own stupidity to the comment.

      3. It’s sometimes difficult to tell that Trump is not a Democrat, but at least he’s never talked about packing the Supreme Court.

        1. “at least he’s never talked about packing the Supreme Court.”

          Mitch took care of the details for him.

    3. Dr Ed., are you familiar with the concept of destroying the village in order to save it? Because that’s precisely what’s happening here. Make no mistake, in the short term you may be getting what you want, but your village is being destroyed and you’re ultimately going to end up with ashes. This is not going to end well.

      1. Abraham Lincoln suspended the writ of Habeas Corpus in Maryland, which never was in rebellion. The 1964 Civil Rights Act *was* unconstitutional.

        I’m not worried.

        1. I’m not talking about disagreements over policy and constitutional law. I’m talking about having a president who throws gasoline on every fire he sees. I’m talking about a president who just urged his supporters to commit voter fraud. I’m talking about a president who encourages racists, who openly courts strife and division, and has destroyed our international reputation and prestige, and who encourages foreign interference in our elections, and does everything he can to undermine our democratic institutions.

          This is not Lincoln suspending habeas corpus during a civil war. This is Caligula.

            1. Well, Trump has not yet appointed a horse to the US Senate, but I have no doubt he would if he thought he could make some money from it.

            2. Caligula is a poorly-made historical porno.

              Sure sounds like Trump.

        2. Abraham Lincoln got told off by the courts for pretending to have the power to suspend the writ, and it’s a major reason why I doubt that he is the best president the US has ever had.

          https://en.wikipedia.org/wiki/Ex_parte_Merryman

          1. Lincoln paid little attention to the Merryman decision. Did you read the article you linked to?

            “The administration would continue the arrests, regardless, with a new wave of arrests beginning in Maryland in September 1861.”

            “Several months later, faced with opposition to his calling up of the militia, Lincoln again suspended habeas corpus in the entire country and made anyone charged with interfering with the draft, discouraging enlistments, or aiding the Confederacy subject to martial law”

            “Lincoln and his administration continued to arrest and hold prisoners without giving such prisoners the procedural protections mandated by the Act. ”

            No one cares about your opinion about US presidents either.

      2. “Dr Ed., are you familiar with the concept of destroying the village in order to save it?”

        All he cares is that SOMEBODY is totally PWNING the libs.

  2. Quite a high bar (Is he a Constitutional scholar or not?) you set for Biden. and a low one (as in, Is he an adult or not?) you set for Trump.

    1. Heh. To be fair to Trump…he is sort of like a special-needs child, so he probably should be treated differently than normal people.

      1. You ableist bigot — you’d fit right in with the Neo-Nazis and bring their membership up to 201.

        1. So nice of you to extend the invitation on behalf of your friends.

    2. I would say that although Biden doesn’t behave liks a constitutional scholar and Trump doesn’t behave like an adult, Biden’s behavior comes much closer to a constitutional scholar’s than Trump’s does to an adult.

      1. Yeah, but in my experience half of the constitutional scholars out there approach the topic the way a pest exterminator approaches entomology: Studying the best ways to kill it.

        Trump’s indifference to it was better than their studied hostility.

        1. Your hostility to all forms of expertise is well known around here.

          1. Speaking of expertise, the Attorney General of the United States was interviewed on CNN yesterday. Wolf Blitzer ask Barr about Trump encouraging his supporters to vote twice.

            Barr responded : I don’t know what the law in the particular state says

            Blitzer : That would be illegal

            Barr : I don’t know what the law in the particular state says

            Blitzer : You can’t vote twice

            Barr : I don’t know what the law in the particular state says

            Blitzer : Is there any state that says you can vote twice?

            Barr obfuscated at bit more, said he didn’t know what the law in the particular state says once again, at which point Blitzer threw up his hands and said “You’re the Attorney General of the United States….”

            Two questions:

            1. Has there ever been a more shameless whore than Bill Barr?

            2. Can this freak-show dumpster-fire presidency end soon enough?

            You can watch the clip here : https://twitter.com/atrupar/status/1301299333938151424

            1. Blitzer could have done his homework and gotten a copy of the law — and didn’t.

              1. You could have intelligently – but you didn’t.

              2. Sigh. “responded intelligently” Can we have an edit function…

            2. Not that I’m trying to defend Trump, but… would doing what he suggested doing be illegal?

              His comments are typically incoherent, but I think he was saying that people should vote by mail, then go to the in-person polling site to try to vote again, in case the mail-in ballot hasn’t been counted: if it has been counted, then the poll workers shouldn’t give you a new ballot, and if it gets counted later, then they’ll see you voted twice and only count one ballot:

              If you get the unsolicited ballots, send it in, and then go — make sure it counted. And if it doesn’t tabulate, you vote. You just vote. And then if they tabulate it very late, which they shouldn’t be doing, they’ll see you voted, and so it won’t count. So, send it in early, and then go and vote. And if it’s not tabulated — you vote. And the vote is going to count.

              So, would that actually be illegal? The statute that the North Carolina Board of Elections cited, N.C.G.S. § 163-275(7), requires an “intent to commit a fraud”. If someone was in fact doing this to get their vote counted once, rather than to try to get it counted twice, it seems like they would lack the necessary mens rea.

              1. It would be nice to have president where one could actually work out what he meant – just sayin’

              2. “Not that I’m trying to defend Trump, but… would doing what he suggested doing be illegal?”

                Trying to vote twice? Yeah, it is illegal.

            3. “1. Has there ever been a more shameless whore than Bill Barr?”

              That’s the kind Mr. Trump likes.

  3. Oh boy the fun is going to start soon enough! Can’t wait for Q to send out the “go” text message to all the members of the Right Wing Conspiracy. This is the moment we have been planning for all this time!

  4. The ICC has absolutely no jurisdiction over US troops, but it’s hard to see the harm if they just investigating and gathering information. That’s perfectly legitimate. But if they actually try to enforce anything against former US military members, the President already has the authority to light shit up in The Hague.

    1. According to the Rome Treaty, the ICC can exercise jurisdiction based on either its personal jurisdiction (over nationals of states parties) or its territorial jurisdiction (over acts committed within states parties). Although the ICC doesn’t have personal jurisdiction over US troops, it has territorial jurisdiction over Afghanistan.

      It can also assert jurisdiction over troops of non-states parties upon referral by the UN Security Council, but that route is effectively unavailable as a source of jurisdiction over US troops.

      1. The icc targets US military because it plays well politically for them in their home countries and the Hague is a corrupt cesspool like most international organizations. The US should never have tolerated this previously.

        1. The ICC isn’t targeting US military at all. As any sane person would expect, an investigation into the situation in Afghanistan would focus primarily on the Taliban. But yes, the US army tortured people too, and that’s clearly a crime.

          1. ” But yes, the US army tortured people too, and that’s clearly a crime.”

            Under International Law, only if the US says it is.

            1. Because the US is in charge of international law? How did that happen? Surely at a minimum Afghanistan is in charge of what international law is in Afghanistan?

              Anyway, the US is a party to the UN Convention against Torture, so the US agrees that torture is a crime, at least in theory. (It’s a crime under US domestic law as well.) https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en

              The fact that there is bipartisan support for occasionally ignoring that law doesn’t change that it’s the law.

              1. “Because the US is in charge of international law? ”

                Yes, in practice we have been since 1945.

                1. This kind of arrogance is why we’re persona non grata in so much of the world nowadays. (Well, that, and our country’s leadership’s choice to coddle the coronavirus.)

            2. The Geneva Convention was ratified and IS United States law.

      2. “According to the Rome Treaty, the ICC can exercise jurisdiction based on … its territorial jurisdiction…”

        Sure, but the US isn’t a party to the Rome Treaty. The US should prosecute its troops if they commit war crimes, but it can’t allow its military to be subject to some other jurisdiction during combat operations.

        1. Afghanistan is a party to the Rome Statute, and that’s where the alleged crimes took place.

          And yes, the US should prosecute the torturers amongst its ranks. If it did, the principle of complementarity would rob the ICC of its jurisdiction. But it hasn’t for the last 19 years, and I don’t think anyone expects that to change anytime soon.

          1. Why do you want the Hague bombed or invaded?

            No US president is going to allow US troops to be tried by foreigners.

          2. Afghanistan doesn’t have jurisdiction over US troops either. Again, only the US can prosecute US military members engaged in US military operations. As it should be.

            1. When Sgt Dumbass decides to drink and drive home from the NCO club, the state trooper who pulls him over has the power to arrest him for DUI, and the state can prosecute. They teach you this in basic training.

    2. The harm is that we never recognized the ICC and continue to refuse to, so investigating out troops constitutes a violation of our sovereignty, which is an act of war.

      Remember that a legal investigation involves subponeas and that sort of stuff — from a court we refuse to recognize. We owe it to our troops to ensure that they are under the UCMJ and nothing else.

      We are a sovereign nation, and as such we have every right to exclude Fatou Bensouda and Phakiso Mochochoko for any reason we want to. Sucks to be them.

      1. Unless of course the ICC prosecutor has to come to the UN to report on her activities, as she is required to do from time to time. When that happens, the UN Headquarters Agreement requires the US to allow Bensouda (and her successors) free access to the country.

        1. “UN Headquarters Agreement requires the US to allow Bensouda (and her successors) free access to the country.”

          And if we don’t allow such access?

          1. “And if we don’t allow such access?”

            That’s corrupt behavior.

      2. “The harm is that we never recognized the ICC and continue to refuse to, so investigating out troops constitutes a violation of our sovereignty, which is an act of war.”

        I’m not sure there’s a problem with investigating, as long as they don’t purport to exercise any sovereignty over US troops. Heck, journalists do that all the time.

        They are certainly free to expose crimes US troops committed, and to try to convince the US to do something about it.

      3. “We owe it to our troops to ensure that they are under the UCMJ and nothing else.”

        Nonsense. Our troops are under the jurisdiction of the states they venture into when they choose to leave base.

  5. Trump for the 10 billionth time makes a high ball proposal which is his 1# negotiation tactic and he’s used countless times and is always bargained down.
    ‘Intelligent’ professors and talking heads lose their heads and Trump’s initial proposal will go through without any modifications and its the end of the world for the 10billionth time.

    1. “I’m gonna break the law” isn’t a “proposal,” and there aren’t any negotiations ongoing with the cities in question.

      1. Just think of it like when a California politician proposes the 10 billionth grossly unconstitutional hate speech or gun control policy. Except these actually get implemented as is.

  6. Some might argue (correctly or incorrectly, precedent be damned) that Art. IV Sec 4 _requires_ federal intervention in many of the present insurrections and, absent Congressional action, action by he who holds commission as Commander-in-Chief is necessary and proper.

    “At first view it might seem not to square with the republican theory, to suppose either that a majority have not the right, or that a minority will have the force to subvert a government; and consequently that the foederal interposition can never be required but when it would be improper. But theoretic reasoning in this, as in most other cases, MUST BE QUALIFIED BY THE LESSONS OF PRACTICE. Why may not illicit combinations for purposes of violence be formed as well by a majority of a State, especially a small State, as by a majority of a county or a district of the same State; and if the authority of the State ought in the latter case to protect the local magistracy, ought not the foederal authority in the former to support the State authority?” (James Madison)

    “From thence it follows, that any man or body of men, however rich or powerful, who shall make an alteration in the form of government of any state, whereby the powers thereof shall be attempted to be taken out of the hands of the people at large, will stand guilty of high treason.”

    1. There are no “insurrections” going on.

      1. Denial doesn’t persuade anybody who isn’t already marinaded in the Koolaid. Right, just peaceful protests with burning buildings, by people carrying signs with Marxist slogans and proclaiming an insurrection.

        1. Brett — Eisenhower sent Federal Troops into Little Rock.

          I don’t remember anything about whole blocks of Little Rock having been burnt flat or anything….

        2. “Right, just peaceful protests with burning buildings, by people carrying signs with Marxist slogans and proclaiming an insurrection.”

          Assuming the people doing the rioting are the same people doing the protesting.

        3. ” people carrying signs with Marxist slogans”

          What Marxist slogans, Brett?

      2. Insurrection: an act or instance of revolting against civil authority or an established government.

        1. Like watching porn on someone else’s computer system?

      3. “There are no “insurrections” going on.”

        The mayors of two cities have had to move their residents.

        100 days straight of riots in Portland.

        1. residencies [not “residents”]

        2. “The mayors of two cities have had to move their residents.”
          “residencies [not ‘residents’]”

          So much for the “they’re in on it” narrative.

      4. Just Monday night, a mob attempted to set fire to the condominium where the Mayor of Portland lives. They started a fire in the street, using furniture looted from nearby buildings (including a dentist chair, so not just outside furniture). The burning debris was then thrown into the first floor (either an office or the lobby, I’ve read conflicting reports). Fortunately, the fire did not take. They did this while explicitly and repeatedly demanding the mayor to resign and disband the police department.

        There is no way to spin this. A mob attempted to burn down the mayor’s residence while the mayor was inside. Worse, it is a condominium, so there were a number of others inside as well.

        Please explain to me how attempting to burn down an occupied residential building with the stated goal of scaring the mayor into resigning (if he didn’t burn alive, that is) is NOT an act of insurrection.

        1. “There is no way to spin this. A mob attempted to burn down the mayor’s residence while the mayor was inside. Worse, it is a condominium, so there were a number of others inside as well.”

          If there’s no way to spin this, stop trying.

    2. “Some might argue (correctly or incorrectly, precedent be damned) that Art. IV Sec 4 _requires_ federal intervention in many of the present insurrections and, absent Congressional action, action by he who holds commission as Commander-in-Chief is necessary and proper.”

      So the President should be calling Congress into session. Wonder why we bypassed this?

  7. If a state or municipality abdicates their duty to protect life, liberty and property why should we send them federal money? Leave aside the politics for a moment (I know, tough to do).

    As I write, there are no less than 20 urban areas around America plagued by violence and mayhem, with the leadership of those areas espousing defunding the police (and taking concrete actions to do just that). What is a citizen to do in this case? You rely on the government to which you pay taxes to protect your life, your liberty, and your property. These governments are failing at this task for whatever reason (insert your favored reason here).

    I am not thrilled with this move. In fact, I don’t like it at all because the next time, it will be done by another POTUS for another reason. That is what I am concerned about. Once you break the inertia and get this started, it just keeps going and going and won’t stop. And we citizens – Red, Blue, Purple – are the real losers in that fight. We will lose yet more liberty.

    OTOH, if the government cannot protect life, liberty and property then why have government at all?

    1. If Trump loses, all this will disapear overnight, because it’s about a battle of white people vs. white people for control of the very top. The destruction is just in service to this goal. How can getting rid of Trump solve problems with police in cities controlled by Democrats for decades? It has little to do with it.

      This may be the most cynical thing I’ve ever said. If I am right about the day after the election, it will have turned out minories and their problems were just along for the ride in this battle between the powerful at the top.

      If only there were a way for both sides to lose, as they sorely deserve. Partisans, you’ve been roped into one of two religions.

      1. It’s not going to disappear overnight. It’s far, far easier to start something like this, than to shut it down. The sort of people you recruit for rioting aren’t very good about obeying orders, and the rioting has become self financing thanks to the looting.

        They may have thought they were setting a controlled burn, but it’s more like they started a forest fire.

        1. How’s the search for Obama’s birth certificate going, Brett? I know Trump is busy with other issues at the moment, but please don’t tell me the sovereign American patriot citizens in Downscale, Idaho, or Lesser Jesustown, South Carolina, have lost their focus!

          1. God, you’re a moron. The search for Obama’s birth certificate ended the moment Obama told them to release it, and that was years ago.

            1. Really? That’s some convenient amnesia.

              1. Just as the birthers now try to dodge their birtherism, it will be with support for Trump. Ten years from now, no one will admit to having voted for Trump.

                1. I suppose they’ll have to chisel him off Mt. Rushmore.

            2. ” The search for Obama’s birth certificate ended the moment Obama told them to release it, and that was years ago.”

              The words “should” and “have” seem to have fallen out of this quote.

        2. Brett : The sort of people you recruit for rioting aren’t very good about obeying orders, and the rioting has become self financing thanks to the looting.

          Uh huh. Brett acts the fool with this tin-foil-hat gibberish because that’s how your virtue-signal you’re a obedient & docile Rightie these days. Proudly Stupid is the call among the faithful, and there seems to be a contest just how insipid any true believer can go. But no one challenges Trump in a match of that kind.

          From a few days ago :

          Trump: “We had somebody get on a plane from a certain city this weekend, and in the plane it was almost completely loaded with thugs, wearing these dark uniforms, black uniforms, with gear and this and that.”

          Ingraham: “Where?”

          Trump: “I’ll tell you sometime. It’s under investigation right now. But they came from a certain city. And this person was coming to the Republican National Convention. And there were like seven people on the plane like this person, and then a lot of people on the plane, to do big damage.”

          Ingraham: “Coming for Washington.”

          Trump: “Yeah, this is all happening.”

          Sorry Brett, but it looks like you need to up your game, imbecility-wise…….

      2. “If Trump loses, all this will disapear overnight, because it’s about a battle of white people vs. white people for control of the very top.”

        There’s that tendency again, to close one’s eyes and fervently wish that something one does not like will just go away by itself. Why do so many conservatives adopt this action plan?

        It isn’t working for climate change, and didn’t work for coronavirus. Maybe this time’s the one where it works…

    2. why should we send them federal money?

      The “we” in that question, presumably, is Congress, which holds the power of the purse?

      1. You mean, Congress, which has extensively delegated the power of the purse?

        Wouldn’t shock me if Trump actually turns up a statutory basis for this. It’s absurd how much discretion Congress has handed out over the years.

        1. I thought we were all fans of the non-delegation doctrine?

    3. “As I write, there are no less than 20 urban areas around America plagued by violence and mayhem, with the leadership of those areas espousing defunding the police (and taking concrete actions to do just that). What is a citizen to do in this case? You rely on the government to which you pay taxes to protect your life, your liberty, and your property. These governments are failing at this task for whatever reason (insert your favored reason here).”

      “Defund the police” has two different meanings depending on one’s political leanings. One group think it means “explore alternative means for resolving conflicts at street level” because handing everything from actual crime to mental health crisis to police doesn’t seem to resolve well, whereas to the other side “Defund the police” appears to mean “embrace mob rule”. combine some active imagination, and your political opposition are supporting some interesting positions.

  8. “[B]ut the president seems incapable of recognizing the limits on his own legal authority. . . .”

    No, no, no.

    President Trump fully knows the the limits of presidential authority.

    The problem is he actively, willingly, and purposefully says fuck those limits.

    1. Blah blah blah. Now do obama, bush, clinton….

  9. To the extent that Prof. Whittington is advancing factual claims, he is claiming that Biden would not impose an eviction moratorium. It’s hard for me to believe that Whittington thinks his readers are stupid enough to believe that, which is why I suspect that he is simply whining, rather than trying to say something coherent.

    1. y81, hypothetical defects in the other guy are always great ammunition when your own guy is under fire for what he actually did. It’s whataboutery gone meta.

      1. I liked the ad where they have tape with Biden saying “if you elect me, your taxes are going to go up” and then cut to the narrator saying “it’s the biggest tax increase of all time”.
        Remember when Trump campaigned for the Presidency by claiming to be able to get us all those unspecified “deals”?
        where did all the deals go? We were going to get a new healthcare system, so much better than the old one that we’d be amazed, back on day one Still waiting. How much longer do we have to wait for the Great Again, again?

        1. I am also amused by the people running the ads that conclude that “Biden is too weak” when his opponent needs two hands to drink from a glass of water.

  10. REASON is my primary source for accurate news. So I expect better. Regarding Trump’s comments about absentee voting in North Carolina, he did not say vote twice. He said if you vote by mail, go to th polls on Election Day to check if you vote was counted. That is not the best way to do it, but the State Board of Elections urges people who vote absentee to check that their ballot was received.

    1. “Let them send it in and let them go vote, and if their system’s as good as they say it is, then obviously they won’t be able to vote,” the president said. “If it isn’t tabulated, they’ll be able to vote.”

      1. Cut Brian Irving some slack, Sarcastr0 . . . can you imagine how difficult it must be to type with your tongue so firmly affixed to Trump’s scrotum?

      2. Exactly. If the poll worker doesn’t see an “already voted” mark next to the person’s name–because the mail-in ballot hasn’t been received or hasn’t been processed yet–the person will end up voting, or at least attempting to vote, twice, which is a crime.

        I don’t know whether the vote would actually be counted twice–i.e., whether the board of elections would be able to retrieve and shred the mailed ballot if the voter went and voted in person. But it’s a crime either way.

        1. A crime? Election laws are complicated, and vary state to state, but in many states, voters are allowed to cast provisional ballots. It’s up to the authorities to determine whether those ballots are valid. It may also be that a ballot cast on election day supersedes one cast by mail. That is certainly the rule for corporate proxies, a topic on which I know more.

          1. Get some advice from a lawyer familiar with election law before relying on those insights.

      3. In some states, like Arizona, if a voter is designated to vote by mail for a particular election, and they decide (on election day) to instead vote in person, they are asked if they brought their mail-in ballot with them. If they did not bring their mail-in ballot with them, they are given a special version of a provisional ballot that is specifically sorted for later comparison with received mail-in ballots. If North Carolina isn’t planning something like this, they could. But it is still possible, and probably would be in any case, to cast a mail-in ballot and an in-person ballot. But also very easy to get caught. Perhaps soon Trump will improve his offer (to double voters) with a prospective pardon.

        1. Trump can’t pardon violations of state law – but I think many states allow you to mail in an absentee ballot, then show up at the polls on election day. Absentee ballots are normally not counted until after the in-person votes are tallied, so the computer should show that you voted in person, and they throw out that absentee ballot – IF the election personnel are competent. OTOH, they might be Democrats like the ones running the polls in Detroit in 2016; when the Green party sued for a recount, 26% of the Detroit ballot boxes were invalidated because they weren’t signed and sealed, the # of ballots written on the outside did not match the # inside, and other errors.

    2. “REASON is my primary source for accurate news.”

      See, there’s your problem, right there.

    3. “he did not say vote twice.”

      No, he said to TRY to vote twice.

  11. On the absentee voting advice, Trump IS advocating something illegal. OTOH, I believe that in order to be legally considered to be soliciting a crime, you have to be aware that what you’re suggesting is illegal.

    Did he get legal advice before making the suggestion? I’m guessing not.

    1. “Vote Trump! He fails to obtain legal advice before urging his followers to commit crimes!”

      1. Yeah, but how do you fit that on a red cap?

        1. “Make America Great Again.”

          Kind of sums it up.

          1. It’s been in there the whole time, and the Trump fans just refused t o see it.

            In order to Make America Great Again, he first had to Make America Not Great. That effort is ongoing and proceeding well. He’s on track to have fewer Americans employed when he leaves office compared to when he took office.

    2. O please. I thought it was fatuous when Glenn Reynolds repeated endlessly that Obama threatened to have the IRS audit his enemies–which would be a crime if he hadn’t been joking–and it’s equally fatuous when people hyperventilate about Trump’s offhand jokes and musings.

      1. After a time, doesn’t the fact that every single word that the president says has to be excused as a joke make you realize that the president himself is a joke?

      2. ” it’s equally fatuous when people hyperventilate about Trump’s offhand jokes and musings.”

        Trump never jokes. Jokes are funny.

    3. OTOH, I believe that in order to be legally considered to be soliciting a crime, you have to be aware that what you’re suggesting is illegal.

      That is not generally the case.

    4. ” you have to be aware that what you’re suggesting is illegal.”

      You know you’re suggesting that the President of the United States is too stupid to know that each citizen only gets to vote once per election?
      Sounds plausible.

  12. THE VOLOKH CONSPIRACY

    This blog has operated for
    SIX DAYS
    without using a vile racial slur
    and for
    496 DAYS
    without imposing
    viewpoint-driven censorship.

    DON’T MISS THE HUGE 500-DAY CELEBRATION*!
    (*Volokh Board of Censors permitting, of course)

  13. As we have discussed before in other threads, there are perfectly constitutional ways to implement a national mask mandate. We have a “national” drinking age of 21, a “national” requirement for seatbelt usage, and we used to have a “national” 55mph speed limit, just to name three.

    While Biden may not be a constitutional scholar, he will no doubt consult a few to ensure however it is implemented passes constitutional muster (most likely through congress and appropriations to the states).

    He won’t go around claiming that ‘I have an Article 2 where I have the right to do whatever I want as president’.

  14. “The Center for Disease Control announced an order prohibiting evictions of private tenants from privately owned residences for unpaid rent.”

    But isn’t this what Democrats have been pushing? Why do you consider it a bad thing if Trump does it?

    1. Because Trump picked a particularly ineffective way to go about it, kicking the can down the road rather than actually DOING anything. In other words, he Trumped it all up.

  15. Is the author of this piece seriously suggesting that, where state and local officials are in bed with terrorists, the federal government has no right to intervene to protect the public? Because the president’s oath expressly requires him to do just that. (I’m looking at Portland, as far back as 2017, and so should the president be.)

    1. Objection! Assumes facts not in evidence!

    2. “Is the author of this piece seriously suggesting that, where state and local officials are in bed with terrorists, the federal government has no right to intervene to protect the public?”

      Assuming the terrorists aren’t employed by the federal government.

  16. Missing in all this is the simple fact that no taxes collected to fund the minimally necessary functions of the federal government should be sent anywhere.

  17. Per Whittington:

    The Secretary of State announced that the United States would impose sanctions on a prosecutor of the International Criminal Court who is investigating American personnel for war crimes. The Center for Disease Control announced an order prohibiting evictions of private tenants from privately owned residences for unpaid rent. The president himself encouraged his supporters in North Carolina to commit vote fraud.

    And now, a memo directing the Office of Management and Budget to withhold federal funds from “anarchist jurisdictions” like, um, New York City.

    OTOH:

    Joe Biden answered a question about presidential national mask mandates by asserting that “I am a constitutionalist.” Unfortunately, he did not follow that up by recognizing that the president has no authority to issue national mask mandates, and he contrasted his own concern with constitutional limits with the apparent lack of such concern on the part of the other candidates for the Democratic nomination for the president (one of whom he selected as his vice president).

    Then,

    On the whole, not a reassuring message about either party’s commitment to respecting constitutional limits on power.

    Pick your poison.

    Really, Prof. Whittington?

    These are equivalent?

  18. “(iii) whether a jurisdiction disempowers or defunds police departments;”

    So, he’s going to punish defunding the police by, uh, defunding them?

    Sounds like Trump.

  19. “Meanwhile, Joe Biden answered a question about presidential national mask mandates by asserting that “I am a constitutionalist.” Unfortunately, he did not follow that up by recognizing that the president has no authority to issue national mask mandates”

    guess he thought YOU should already know that.

  20. “United States would impose sanctions on a prosecutor of the International Criminal Court who is investigating American personnel”

    That bothers you?

    Protecting US service-people from witch hunts ought to be applauded by decent Americans.

    1. Witch hunt? Really?

      https://en.wikipedia.org/wiki/Abu_Ghraib_torture_and_prisoner_abuse#/media/File:AbuGhraibAbuse-standing-on-box.jpg

      (And yes, I know that picture was taken in Iraq. Inconveniently, the torture that took place at Baghram airforce base and elsewhere in Afghanistan doesn’t come with such visual aids.)

      1. “torture that took place”

        Aren’t you missing “alleged” in a couple of places?

        Convict first, investigate later is why its a witch hunt.

        1. Obstruct the investigation first is how it works in Trump’s America.

      2. And the U.S. military convicted more than twice as many people for their roles in that incident than the ICC has convicted in its entire existence.

    2. What is the fascination with “witch hunts” among American conservatives?
      You guys consistently use the term incorrectly.

  21. Looking at the “vote twice” comment, it reminds me of Obama’s comments that appeared to encourage illegal immigrants to vote because there would be no verification. Both are dumb comments that one can twist about either way, but Obama’s was much worse.

    1. if I vote, will immigration know where I live? Will they come for my family and deport us?

      OBAMA: Not true. And the reason is, first of all, when you vote, you are a citizen yourself. And there is not a situation where the voting rolls somehow are transferred over and people start investigating, et cetera. The sanctity of the vote is strictly confidential in terms of who you voted for. If you have a family member who maybe is undocumented, then you have an even greater reason to vote.

      OBAMA: And the reason that fear is promoted is because they don’t want people voting. People are discouraged from voting and part of what is important for Latino citizens is to make your voice heard, because you’re not just speaking for yourself. You’re speaking for family members, friends, classmates of yours in school…

      RODRIGUEZ: Your entire community.

      OBAMA: … who may not have a voice. Who can’t legally vote. But they’re counting on you to make sure that you have the courage to make your voice heard.

      This is nothing like what Trump said.

      1. to Republicans, encouraging minorities to vote is somehow treasonous. Those votes are meant to be suppressed.

    2. ” it reminds me of Obama’s comments that appeared to encourage illegal immigrants to vote because there would be no verification.”

      And you’ve been imagining illegals voting in large numbers ever since.

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