How the Government Can Make Life Better in 2021

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It’s the beginning of a new year. It’s almost the beginning of a new presidential administration, too. In theory, now is a perfect time for some resolutions: to start fresh, fix the mistakes of the past, or do what we never got around to doing. In that spirit, I offer some advice to the Biden administration; Congress; and state and local governments.

State and local governments should reopen schools. That many schools are still not providing in-person instruction is unforgivable. We’ve known for months now that in many scenarios, in-person instruction poses little risk to children, their teachers, and their communities. Indeed, in Germany, school closures were not associated with reduced transmission of COVID-19.

And yet, schools in counties such as mine have been closed for over 300 days, even in the face of the known high costs of online instruction. In Arlington County, where I live, failing grades at middle school and high school levels have increased by 200 percent and 26 percent, respectively.

Sadly, high school children who hoped their athletic performance would help them get into college or get scholarships have also been stuck at home. Lower-income children and those with disabilities are impacted the most, and equity of access was even used as an excuse to stop all new instruction back in March 2020.

As for Congress, it must stop being so generous with other people’s money. This extra spending creates serious economic distortions and counterproductive behavior related to unemployment benefits or bailouts.

Legislators from both parties have been fiscally reckless for years. But it has gotten worse during this pandemic under the stewardship of a Republican president who openly says that he doesn’t care about higher spending. The result is a Congress that abdicates all sense of restraint and approves large checks to Americans, whether they were professionally affected by the COVID-19 crisis or not.

The federal government is dispensing bonuses on top of unemployment insurance payments, often providing more money for not working than working. Other wasteful expenditures include repeated bailouts to airlines.

The negative consequences of this unchecked spending will be huge. The Congressional Budget Office, for instance, warned that an extension of unemployment bonuses and benefits creates disincentives to work and a slowdown of the economy. This extra spending also produces an ungodly level of debt, which academic research shows will ultimately slow economic growth. This means that future generations will both live in a slower-growth environment and face higher taxes to pay for today’s obscene spending. And this doesn’t even address the cultural distortions created by programs designed to pay people not to work.

Finally, the administration must speed up not only the distribution of existing vaccines but also the approvals of new drugs. The private sector has delivered the vaccine to fight this pandemic at a speed never before seen. As much as I fear setting the precedent that we can only be freed from destructive lockdowns once we have large-scale vaccination, it seems like the only way politicians will allow us to get our lives back. This means that vaccine distribution is a priority and needs to be accelerated.

Sadly, the government is often inept at doing the basic stuff that the private sector does on a regular basis. That’s why someone on Twitter once joked that if Amazon and Chick-fil-A were in charge of vaccine distribution, they’d have the population vaccinated in no time. There’s some truth to this. The new administration should consider leveraging the private sector for that job.

Increasing the supply of vaccines is also a priority. One way is for the Food and Drug Administration to approve new ones faster. Waiting through an endless FDA process costs many lives for no reason. The FDA could also consider authorization for giving only half a dose of the Moderna vaccine, which has been shown to provide an “identical immune response” to the standard dose.

According to the FDA, the data for the Pfizer-BioNTech vaccine show that “Efficacy against severe COVID-19 occurring after the first dose was 88.9%.” So the FDA should consider approving “first doses first” distribution: The priority should be giving the first dose to more people before giving a smaller group two doses.

These are only a few things I wish to see happen soon. Once that’s done, Congress and state officials can then tackle ending cronyism, reforming welfare, and ending all the regulations that make it harder for lower-income workers and minorities to work and prosper.

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A Timely Primer on Section 4 of the 25th Amendment

There are rumblings that President Trump’s cabinet may invoke Section 4 of the 25th Amendment.

I am deeply grateful to Professor Brian Kalt, who wrote the definitive book on this once-obscure provision of the Constitution. He created this helpful graphic to explain how the 25th Amendment operates.

Here, I wish to break down the logistics. There are currently 15 Cabinet Members who could vote on a 25th Amendment declaration. According to Professor Kalt, acting members should be allowed to vote. Professor Anne Joseph O’Connell disagrees.

The 15 current members are:

  1. Secretary of State Mike Pompeo
  2. Secretary of the Treasury Steven Mnuchin
  3. Acting Secretary of Defense Christopher Miller
  4. Acting Attorney General Jeffrey A. Rosen
  5. Secretary of the Interior David Bernhardt
  6. Secretary of Agriculture Sonny Perdue
  7. Secretary of Commerce Wilbur Ross
  8. Secretary of Labor Eugene Scalia
  9. Secretary of HHS Alex Azar
  10. Secretary of HUD Ben Carson
  11. Secretary of Transportation Elaine Chao
  12. Secretary of Energy Dan Brouillette
  13. Secretary of Education Betsy De Vos
  14. Secretary of Veterans Affairs Robert Wilkie
  15. Acting Secretary of DHS Chad Wolf

If Vice President Pence, and eight of these fifteen cabinet members, “transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office,” then Mike Pence immediately becomes Acting President. Because there is some debate about whether acting cabinet members can vote, it would be safe to have at least 8 confirmed cabinet members vote to remove.

At that point, Trump would “transmit[] to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists.” Thereafter, The Vice President, and the cabinet members have four days to take another vote. During that four day period, Pence remains as Acting President. If Pence and eight members of the cabinet agree that Trump is still “unable to discharge the powers and duties of his office,” then Pence remains as Acting President.

At that point Congress has up to 21 days to determine whether Trump is “unable to discharge the powers and duties of his office.” It would take 2/3 of the House and Senate to remove Trump from office. That vote would likely fail. But, we are less than 21 days till the inauguration. In theory, Speaker Pelosi and Leader McConnell could simply run out the clock, and not bring up a vote in two weeks. On January 20 at noon, Joe Biden will take the oath of office.

In short, if VP Pence and a majority of the cabinet vote to remove Trump, there is little chance that Trump would return to the Presidency–absent another election.

I raise one possible cliffhanger. Trump could preemptively fire everyone in his cabinet who does not pledge fealty, and then use the Vacancies Reform Act to install loyalists as acting cabinet heads. That could deprive Pence of a majority. It is also possible that cabinet members may resign. There are further rumblings of possible resignations.

With resignations, Trump may also be able to appoint loyalists as cabinet members. The denominator remains 15, no matter what.

Now Trump would need help to execute that sort of Vacancies Reform Act move. I suspect White House Counsel Pat Cipollone would resign rather than help with this purge.

Stay tuned. And please email me if I made an error. I wrote this post in haste.

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A Timely Primer on Section 4 of the 25th Amendment

There are rumblings that President Trump’s cabinet may invoke Section 4 of the 25th Amendment.

I am deeply grateful to Professor Brian Kalt, who wrote the definitive book on this once-obscure provision of the Constitution. He created this helpful graphic to explain how the 25th Amendment operates.

Here, I wish to break down the logistics. There are currently 15 Cabinet Members who could vote on a 25th Amendment declaration. (According to Professor Kalt, acting members should be allowed  to vote.) They are:

  1. Secretary of State Mike Pompeo
  2. Secretary of the Treasury Steven Mnuchin
  3. Acting Secretary of Defense Christopher Miller
  4. Acting Attorney General Jeffrey A. Rosen
  5. Secretary of the Interior David Bernhardt
  6. Secretary of Agriculture Sonny Perdue
  7. Secretary of Commerce Wilbur Ross
  8. Secretary of Labor Eugene Scalia
  9. Secretary of HHS Alex Azar
  10. Secretary of HUD Ben Carson
  11. Secretary of Transportation Elaine Chao
  12. Secretary of Energy Dan Brouillette
  13. Secretary of Education Betsy De Vos
  14. Secretary of Veterans Affairs Robert Wilkie
  15. Acting Secretary of DHS Chad Wolf

If Vice President Pence, and eight of these fifteen cabinet members, “transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office,” then Mike Pence immediately becomes President.

At that point, Trump would “transmit[] to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists.” Thereafter, The Vice President, and the cabinet members have four days to take another vote. If Pence and eight members of the cabinet agree that Trump is still “unable to discharge the powers and duties of his office,” then Pence remains as President.

At that point Congress has up to 21 days to determine whether Trump is “unable to discharge the powers and duties of his office.” It would take 2/3 of the House and Senate to remove Trump from office. That vote would likely fail. But, we are less than 21 days till the inauguration. In theory, Speaker Pelosi and Leader McConnell could simply run out the clock, and not bring up a vote in two weeks. On January 20 at noon, Joe Biden will take the oath of office.

In short, if VP Pence and a majority of the cabinet vote to remove Trump, there is little chance that Trump would return to the Presidency–absent another election.

I raise one possible cliffhanger. Trump could preemptively fire everyone in his cabinet who does not pledge fealty, and then use the Vacancies Reform Act to install loyalists as acting cabinet heads. That could deprive Pence of a majority. It is also possible that cabinet members may resign. There are further rumblings of possible resignations.

With resignations, Trump may also be able to appoint loyalists as cabinet members. The denominator remains 15, no matter what.

Now Trump would need help to execute that sort of Vacancies Reform Act move. I suspect White House Counsel Pat Cipollone would resign rather than help with this purge.

Stay tuned. And please email me if I made an error. I wrote this post in haste.

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A Qualified Defense of Impeaching Trump Again

Impeachment

In the hours since the awful riot by Trump supporters at the Capitol today, many have called for Trump to be impeached for a second time, due to his role in inciting the riot. In addition to numerous Democrats, advocates include prominent conservatives such as David French, John Podhoretz (who harshly criticized the earlier effort to impeach Trump, and leading legal scholars, such as my co-bloggers Keith Whittington, and (in a joint post) Will Baude, Sam Bray, and Steve Sachs. By the time you read this, there are likely to be more supporters of a second impeachment, perhaps many more.

I myself supported the earlier impeachment of Trump over the Ukraine scandal, and also believe he deserved to be impeached for other lawbreaking and abuses of power, such as his cruel child separation policy. I think today’s events provide additional grounds for impeachment and removal, for many of the same reasons French, Whittington, and other advocates have pointed out. Unlike in the Ukraine case (where Trump violated a federal criminal law, as well as abused his powers), or in the child separation case (a policy courts ruled to be illegal), it is not clear to me that Trump has broken the law in this instance, though I admit I could be missing something on that point.

But even if Trump hasn’t broken the law, he has abused the powers of his office by falsely claiming that the election was stolen from him, and repeatedly inciting violence by his supporters. David French summarizes the issue well:

Donald Trump sowed the seeds for the riot of January 6th from the moment he entered the race in 2015, when he made it plain that he welcomed violence to silence protesters at his rallies, when he broadcast that any election defeat – even then – would not be legitimate. He kept sowing when he refused to promise that he’d support the peaceful transition of power. He sowed the seeds when he famously told the Proud Boys – a far-right street militia – to “stand back and stand by.” And he sowed still more when he raged, day by day, that he’d suffered a great injustice on November 3rd.

And now, as the nation’s capital reaps what he sowed, he can’t stop stoking the flames. In a video message ostensibly designed to quell the violence, he repeated his election lies. And he told members of the insurrection, “I know how you feel.” He told the rioters, “We love you.”

Yes, Donald Trump loves his violent mob.

 

For reasons well-summarized by  Keith Whittington  and prominent conservative legal scholar Michael Stokes Paulsen, among others, impeachment can be justified even in cases of abuse of power where no specific law has been violated. I have previously defended such impeachments for noncriminal abuses of power against claims that they would create a dangerous slippery slope (see here and here). Everything I said then still applies.

If Trump is impeached again, I will be happy to support the effort and to advocate conviction. If Trump is convicted, I hope the Senate will not only remove him from office, but impose the additional penalty, provided for in the Constitution, of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” That would prevent Trump from returning to the White House in 2024, or at any future time.

But before going down this road, advocates should consider whether it is likely to succeed. A second impeachment, followed by a second acquittal, could potentially benefit Trump as much or more than it hurts him. He and his supporters could point to the acquittal as a vindication.

Obviously, a second impeachment would be a stain on his reputation, even if he avoid conviction. But it’s not clear that two acquittals would really be much more of a stain than “only” one. It’s still possible that a second impeachment would be worth the risk. Even if Trump gets acquitted, he could take some real damage if a large number of GOP senators vote to convict (unlike last time, when Mitt Romney was alone in his party for doing so). If there is substantial GOP support for a second impeachment, I say “full steam ahead!”

But if not, we should at least carefully consider whether this approach is worth it or not. The main goals of impeachment are to remove a dangerous president from office, impose a political price for abuses of power, and deter future misconduct of the same type. These goals are only achievable if the target is either convicted or at least suffers damage to his reputation and political standing. If he gets acquitted, and his standing remains intact —or, worse still, actually improves—the impeachment has to be considered a failure.

Admittedly, an otherwise unsuccessful impeachment effort might eventually be vindicated in the eyes of history. As I wrote a year ago, it is still not clear what the ultimate impact of Trump’s first impeachment will be. But a well-thought out impeachment effort should also seek to achieve beneficial short and medium-term goals. At the very least, it should avoid creating harmful effects that might actually benefit it target and his allies.

In sum, I believe there are ample legal and moral grounds for impeaching and convicting Trump, and for barring him from holding any federal office in the future. But advocates of a second impeachment should carefully consider the potential political effects before proceeding.

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A Qualified Defense of Impeaching Trump Again

Impeachment

In the hours since the awful riot by Trump supporters at the Capitol today, many have called for Trump to be impeached for a second time, due to his role in inciting the riot. In addition to numerous Democrats, advocates include prominent conservatives such as David French, John Podhoretz (who harshly criticized the earlier effort to impeach Trump, and leading legal scholars, such as my co-bloggers Keith Whittington, and (in a joint post) Will Baude, Sam Bray, and Steve Sachs. By the time you read this, there are likely to be more supporters of a second impeachment, perhaps many more.

I myself supported the earlier impeachment of Trump over the Ukraine scandal, and also believe he deserved to be impeached for other lawbreaking and abuses of power, such as his cruel child separation policy. I think today’s events provide additional grounds for impeachment and removal, for many of the same reasons French, Whittington, and other advocates have pointed out. Unlike in the Ukraine case (where Trump violated a federal criminal law, as well as abused his powers), or in the child separation case (a policy courts ruled to be illegal), it is not clear to me that Trump has broken the law in this instance, though I admit I could be missing something on that point.

But even if Trump hasn’t broken the law, he has abused the powers of his office by falsely claiming that the election was stolen from him, and repeatedly inciting violence by his supporters. David French summarizes the issue well:

Donald Trump sowed the seeds for the riot of January 6th from the moment he entered the race in 2015, when he made it plain that he welcomed violence to silence protesters at his rallies, when he broadcast that any election defeat – even then – would not be legitimate. He kept sowing when he refused to promise that he’d support the peaceful transition of power. He sowed the seeds when he famously told the Proud Boys – a far-right street militia – to “stand back and stand by.” And he sowed still more when he raged, day by day, that he’d suffered a great injustice on November 3rd.

And now, as the nation’s capital reaps what he sowed, he can’t stop stoking the flames. In a video message ostensibly designed to quell the violence, he repeated his election lies. And he told members of the insurrection, “I know how you feel.” He told the rioters, “We love you.”

Yes, Donald Trump loves his violent mob.

 

For reasons well-summarized by  Keith Whittington  and prominent conservative legal scholar Michael Stokes Paulsen, among others, impeachment can be justified even in cases of abuse of power where no specific law has been violated. I have previously defended such impeachments for noncriminal abuses of power against claims that they would create a dangerous slippery slope (see here and here). Everything I said then still applies.

If Trump is impeached again, I will be happy to support the effort and to advocate conviction. If Trump is convicted, I hope the Senate will not only remove him from office, but impose the additional penalty, provided for in the Constitution, of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” That would prevent Trump from returning to the White House in 2024, or at any future time.

But before going down this road, advocates should consider whether it is likely to succeed. A second impeachment, followed by a second acquittal, could potentially benefit Trump as much or more than it hurts him. He and his supporters could point to the acquittal as a vindication.

Obviously, a second impeachment would be a stain on his reputation, even if he avoid conviction. But it’s not clear that two acquittals would really be much more of a stain than “only” one. It’s still possible that a second impeachment would be worth the risk. Even if Trump gets acquitted, he could take some real damage if a large number of GOP senators vote to convict (unlike last time, when Mitt Romney was alone in his party for doing so). If there is substantial GOP support for a second impeachment, I say “full steam ahead!”

But if not, we should at least carefully consider whether this approach is worth it or not. The main goals of impeachment are to remove a dangerous president from office, impose a political price for abuses of power, and deter future misconduct of the same type. These goals are only achievable if the target is either convicted or at least suffers damage to his reputation and political standing. If he gets acquitted, and his standing remains intact —or, worse still, actually improves—the impeachment has to be considered a failure.

Admittedly, an otherwise unsuccessful impeachment effort might eventually be vindicated in the eyes of history. As I wrote a year ago, it is still not clear what the ultimate impact of Trump’s first impeachment will be. But a well-thought out impeachment effort should also seek to achieve beneficial short and medium-term goals. At the very least, it should avoid creating harmful effects that might actually benefit it target and his allies.

In sum, I believe there are ample legal and moral grounds for impeaching and convicting Trump, and for barring him from holding any federal office in the future. But advocates of a second impeachment should carefully consider the potential political effects before proceeding.

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Trump to Capitol Rioters: ‘We Love You. You’re Very Special…but Go Home.’

Donald-Trump-5-14-19-Newscom

President Donald Trump urged his supporters currently vandalizing the U.S. Capitol building to go home in a recorded video statement that also validated their reason for rioting.

“I know your pain. I know your hurt. We had an election that was stolen from us,” said Trump in the brief minute-long video. “But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order.”

“This was a fraudulent election but we can’t play into the hands of these people. We have to have peace,” he continued. “We love you. You’re very special. You see the way others are treated that are so bad and so evil but go home and go home in peace.”

The president’s claims of widespread election fraud had become increasingly meritless and conspiratorial in the days leading up to the Georgia runoff elections. They don’t appear to be dying down anytime soon.

Per reporting from Maggie Haberman at The New York Times, Trump had to be cajoled by his staff into making even this rather weak plea, instead spending much of the day fuming over Vice President Mike Pence refusing to stop the tally of Electoral College votes that was supposed to be completed today.

Meanwhile, Trump supporters at the Capitol smashed up Democratic House Speaker Nancy Pelosi’s office, and an explosive device was discovered at the Republican National Committee headquarters in Washington, D.C.

White House Press Secretary Kayleigh McEnany claimed on Twitter that Trump had also called in the National Guard to help quell the rioting.

That version of events is being disputed by Acting Defense Secretary Christopher Miller, who released a statement saying that he spoke with Vice President Mike Pence and congressional leadership before activating the guard.

Neither that action nor the president’s statement appears to have mollified the crowd at the Capitol. Elected Republicans are demanding calm. Rep. Ilhan Omar (D–Minn.) is drafting fresh articles of impeachment.

Thank God 2020 is over, right?

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