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Good news for our institutions and the rule of law

Anyone who values the rule of law and the integrity of our governmental institutions over partisan politics should welcome the election results. Whatever else may be said, they represent a sweeping repudiation of President Trump’s authoritarianism and lawlessness along with the Republican congressional majorities that abetted him in dereliction of their constitutional responsibilities.

Trump urged Americans to vote as if he were on the ballot; they did and delivered a stunning rebuke. And while the Democrats are not so great,^[1]Both political parties are held in low public esteem. Republicans richly deserved to lose their congressional majorities. The current Republican-led Congress utterly failed in its most basic constitutional responsibilities as an independent, coequal branch of government. Rather, it became in effect an extension of the executive branch. Two more years of Trump’s authoritarianism condoned and facilitated by an obsequious Congress would have tested the limits of our fragile democracy. The election results also affirm to Americans and, hopefully, the rest of the world that the last two years don’t represent who we are as a nation.

What the new Democratic Congress can do

It remains to be seen how events will unfold in the new Congress and many questions exist. For example:

• • Could actions in the lame duck session of the current Congress still controlled by Republicans significantly affect Democratic options in the next Congress?
  • How will Trump react to the new Democratic Congress? Will he become even more unhinged and extreme, or might he see working with Democrats as a better way to keep himself in the spotlight and feed his ego?
  • Will the Democratic majorities avoid extremism and hyper- partisanship that could undermine their credibility and effectiveness?
  • How will congressional Republicans react in the minority? Will they remain under Trump’s thumb even as his power over them wanes or could they show some independence and even bipartisanship?

Subject to these and other variables, the Democratic majorities probably will (and should) do the following:

Stop abetting Trump. While Democrats lack the veto-proof majorities necessary to impose their agenda on Trump, they can and surely will prevent Congress from continuing to rubber stamp his. They have the power to reject or limit whatever legislative agenda he may have. As a result, gridlock will likely be the rule when it comes to substantive legislation. Also and importantly, Senate Democrats will hold a veto power over Trump nominees.  

Reclaim the power of the purse. The new Congress’s main leverage will come through control of federal spending. Trump likes to govern primarily by executive action, but he’s still dependent on Congress for funding. With the acquiescence and frequent support of the Republican majorities, the Trump administration made a mockery of Congress’s power of the purse over the last two years. In blatant violation of the Constitution and federal statutory law, the administration refused to spend money appropriated by Congress and spent money without congressional appropriation. Democrats can take back this core constitutional power. While again lacking the votes to enact their own spending priorities, they can deny or limit Trump’s. They should also be able to exact significant concessions through negotiations over appropriations.        

Conduct vigorous oversight. The Republican majorities eschewed oversight of the executive branch along with their other constitutional responsibilities. Democrats will undoubtedly do an about-face here accompanied by plenty of fireworks. Expect the Democratic majorities to be highly aggressive, the Trump administration defiant, and Republican minorities obstructive. Congressional oversight on politically charged subjects often descends into bombastic partisan circuses that accomplish little and turn off the public. Democrats would be wise to prioritize their targets carefully, focusing on the most compelling subjects and avoiding political grandstanding and overreach. Trump and his administration offer a wealth of legitimate targets that need no embellishment.

One fraught issue will be impeachment. There’s a strong case to be made that Trump has committed multiple impeachable offenses during his second term and needs to be held accountable for them. On the other hand, impeaching him (again) would be divisive, distracting, and extremely unlikely to result in conviction. One option might be to focus impeachment scrutiny on other administration officials who have acted unlawfully in violation of their own constitutional oaths and might justifiably and more readily be forced from office.^[2]Worthy candidates include Defense Secretary Hegseth, Attorney General Blanche, and Russell Vought, Director of the Office of Management and Budget, who has played a lead role the administration’s … Continue reading    

Reinvigorate GAO. To enhance its oversight capacity and ability to sniff out spending shenanigans, the new Congress should revive its “watchdog” agency, the Government Accountability Office (GAO). GAO has been largely neutralized for the past two years. Despite unprecedented administration stonewalling and spending abuses, it hasn’t invoked its statutory powers to sue to enforce its access to information rights or to counter illegal impoundments of appropriations.^[3]GAO’s apparent reluctance may be understandable since it is an agent of the Congress and can’t get too far out in front of its principal. The Republican congressional majorities offered little … Continue reading The first step toward reviving GAO is to appoint a well-regarded individual with broad bipartisan credibility as a new Comptroller General to lead it.^[4]Congress should change the law to shift the Comptroller General from a presidential to a congressional appointee, as it has done or is doing with broad bipartisan support for all other legislative … Continue reading Congress should then fully support GAO while respecting and preserving its independence, objectivity, and nonpartisanship.

Pursue judicial remedies. The new Democratic Congress may have more success than other parties in suing to stop some of Trump’s illegal actions. While the law is unsettled, Congress might be able to establish legal standing to challenge executive branch actions that undercut its fundamental prerogatives as an institution such as its power of the purse. This could include suits by Congress to counter illegal impoundments if GAO fails to act. Other potential targets include Trump’s vanity construction projects. For example, while the Supreme Court denied private parties standing to challenge his White House ballroom project despite its apparent illegality, a suit by Congress might fare better.^[5]The best chance for success would be for the House and Senate to adopt concurrent resolutions specifically authorizing such suits.

Looking ahead

The 2026 midterms spared our democracy from continuing into the abyss; at least the federal government will once more be functioning with all three branches instead of just two. However, it is still far from healthy.^[6]See here, here, and here. Both parties seem ever more extreme, polarized, hostile to each other, and out of sync with ordinary Americans. Neither shows much interest in confronting obvious major challenges such as the federal government’s dire fiscal situation. Our elected officials are far less collegial, independent-minded, and institutionalist than they used to be. Most behave like partisan foot soldiers toeing their respective party lines and appearing responsive only to the special interests and primary voters who increasingly control their election.  

The 2026 midterm results may offer hope for improvement here too. They dramatically expanded the playing field for competitive House and Senate seats in ways that should influence both parties.^[7]Another noteworthy positive in this regard is that the grossly undemocratic gerrymandering frenzy largely failed and may even have backfired. Despite their electoral success, Democrats are still searching for an identity and agenda. (Clearly, the election results represented a repudiation of Trump rather than an endorsement of them.) While their socialist-leaning left flank gets the most attention, their greatest success came in red and purple districts and states. Presumably, the winners of these contests will have significant leverage to move the party in more moderate directions.

On the Republican side, the 2026 results may signal the demise of the Republican party as essentially the cult of Trump. If Republicans are sensible enough to reinvent themselves, perhaps they will revert to more traditional conservative values that include respect for democratic norms and the rule of law. Doing so would surely broaden their appeal.

Here’s hoping that the 2026 midterm results will stimulate such lasting benefits for our democracy.

 

 

 

 

Attorneys general are not “independent” of the president; rather, they are fully subject to the president’s direction and control. Importantly, however, they owe their highest allegiance not to the president but to the Constitution and the courts. When a presidential directive clearly conflicts with those legal and ethical obligations, they cannot comply with it. Unfortunately, there’s little reason for confidence that Attorney General Blanche will draw this line.

Attorney General Todd Blanche created quite a stir on Meet the Press last Sunday when he refused to “pledge that the Justice Department will always act independently of the White House.” He responded:

“Well, there’s a big difference between saying we will always do our job and investigate any case and act independently of the White House—no, I’m not going to pledge that. And no attorney general should ever pledge that.”

Blanche is, of course, right in the sense that the attorney general is not some sort of independent actor within the executive branch who is not wholly subordinate to the president and fully subject to his direction. Like all cabinet members, the attorney general serves at the pleasure of the president, owes the president a general duty of loyal and faithful service, and is removable by the president for disregarding a presidential order or for any other reason or no reason at all.

The notion that the attorney general and the Justice Department should operate somewhat at arms-length from the White House and with some degree of independence on certain matters arose most dramatically in the Watergate era “Saturday Night Massacre” when the attorney general and deputy attorney general resigned rather than comply with President Nixon’s order to fire Watergate Special Prosecutor Archibald Cox. It became the norm in subsequent administrations.

However, it is (was) just an internal norm–one of many President Trump has blown through in his second term. Trump treats the attorney general and the Justice Department like a private law firm that exists to serve his personal interests. He does not hesitate to enlist them to attack his perceived enemies, assist those he favors, and otherwise indulge his wishes.

Nevertheless, the fact that the attorney general is fully subject to the president’s authority and direction does not require rote compliance with every presidential demand. Attorneys general take no oath of fealty to the president. They do take the statutorily prescribed oath for officers of the United States to support and defend the Constitution. They are also subject to ethical requirements as members of the bar and officers of the court. These include obligations of candor and good faith in dealing with the judiciary and refraining from the conduct of frivolous litigation.

While Blanche effectively rebutted the suggestion that he enjoyed a special form of independence from the president, he was evasive and unpersuasive when addressing questions about potential tension between his role as a loyal Trump subordinate and his paramount constitutional and ethical responsibilities. He assured the interviewer that Trump would never ask him to do anything illegal or unethical, adding:

“[T]here is this extraordinarily false narrative that the president wakes up in the morning and calls me and says, ‘Todd, go prosecute X or Y.’ He does not do that. He has never done that. He will never do that.”

But Trump did exactly that with Blanche’s predecessor, Pam Bondi, pressuring her to indict specific individuals and apparently firing her for moving too slowly. Why should anyone expect Trump to treat Blanche differently?

Furthermore, Blanche’s own actions create serious doubt that he would resist if Trump did the same to him. See, for example, his risible indictment of James Comey for allegedly threatening Trump by briefly posting a photo of seashells forming “86 47.” Blanche also filed a motion in the White House ballroom case written in Trumpspeak that reads more like a Truth Social post than a legal document.

Most notably, Blanche played a central role in the notorious “settlement” of Trump’s lawsuit against the IRS that barred the agency from pursuing tax claims against Trump and his family and attempted to create a $1.776 billion “anti-weaponization fund.” The settlement was widely condemned as collusive and fraudulent. The judge assigned to the lawsuit, which was withdrawn to prevent further scrutiny, denounced it in a scathing order as an exercise in bad faith “that had no viable basis in law or fact.” She forwarded her order to the New York Bar, of which Blanche is a member. Apart from its other outrages, the proposed anti-weaponization fund was a blatantly unconstitutional violation of Congress’s power of the purse.

More generally, Blanche has served as deputy attorney general since early in Trump’s second term and presided along with Bondi over a shocking decline in the integrity of the Justice Department. Its attorneys have repeatedly stonewalled and misled federal judges and even engaged in outright defiance of their orders at times, thereby undermining their traditional credibility with the courts. Some of their cases against individuals disfavored by Trump are so weak that grand juries refuse to indict them. Many experienced attorneys have headed for the exits.^[1]See here, here, here, here, here, here, here, and here.        

There is nothing wrong with an attorney general forcefully supporting a president’s policy agenda and pushing the envelope with novel and aggressive legal arguments. In fact, this is standard practice today. However, Trump’s Justice Department regularly seems to go beyond reasonable legal and ethical limits. Blanche is more polished than Bondi and lacks her outlandishly sycophantic and performatively combative persona, but he seems just as willing to do whatever Trump wants.

 

 

 

 

 

A federal judiciary independent of the political branches is essential to our constitutional democracy. However, forces on both the left and right threaten to undermine it to serve their political goals. Reducing judges to an extension of the political branches would ultimately destroy their credibility and effectiveness, a result that serves nobody’s interests. Judges should be judged not by political outcomes but by whether their decisions rest on sound legal principles—“conservative,” “liberal,” or otherwise.

The Nation’s founders regarded the judiciary as the “least dangerous” and “weakest” branch of the federal government in that it lacks any inherent power to enforce its will. Rather, its authority is wholly dependent on acceptance of its decisions by the other branches as well as the public. The founders also emphasized the importance of judicial independence from the political branches:

“[L]iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”

An independent judiciary has never been more important than it is now as our democracy teeters near the brink. The awesome powers of the presidency rest in the hands of an individual who disdains democratic norms and the rule of law while a compliant Congress does his bidding. This leaves the federal judiciary as the only internal constraint on governmental abuse.

The potential threats to democracy will not end with Donald Trump and the current Congress. The vast powers of the executive branch remain at the disposal of future presidents who could also abuse them if so inclined. Congress, long in decline as an independent and coequal branch, will probably remain largely subservient when controlled by the president’s party. Even when political control is divided, no Congress in the foreseeable future is likely to hold the veto-proof majority necessary to fully rein in a rogue president.

Yet, the federal judiciary and particularly the Supreme Court face assaults from all sides that could undermine their ability to fulfill the role the founders entrusted to them and that is so vital in these fraught times. While the judiciary has survived past attacks, the current threats seem more severe in our polarized and ever more extreme political environment. The judiciary is the only branch of the federal government that continues to function mainly as the founders intended.^[1]See here and here. Ironically, this can be a vulnerability. The dysfunction of the executive and legislative branches forces the courts to take on controversial issues that the political branches fail to resolve through traditional political means, thereby making judges a heightened political target.

Both political parties have degraded the judicial appointment and confirmation process from the generally effective bipartisan regime that prevailed until fairly recently to the hyperpartisan mess it is today.^[2]See here and here. In addition to thoroughly politicizing judicial appointments, both parties and their ideological allies engage in extreme demagoguery over judicial decisions they disfavor. While judicial decisions are of course fair game for criticism, critics routinely skip over reasoned debate on their merits to challenge the integrity of the judges who decide them.

Since the Supreme Court’s majority became more conservative in recent years, critics on the left have taken to questioning its “legitimacy” and berating the justices as “political hacks.” Many assert that the justices are “in the tank” or a “rubber stamp” for Trump. They propose “reforms” that are thinly disguised attempts to install justices more to their liking. Not to be outdone, Trump and others in his administration call for the impeachment of judges who rule against them and even defy them on occasion. Deputy Chief of Staff Stephen Miller accuses federal district court judges “as a class” of staging a “legal insurrection against the Constitution and laws of the United States.” Trump derides his own SCOTUS appointees when they dare to rule against him. So do his supporters; “traitor” is one of the milder insults hurled at Justice Barrett.

Such political attacks have consequences. Public approval of the Supreme Court has declined sharply over recent years as many Americans apparently buy the pervasive narrative that the justices decide cases based on their political preferences. Unsurprisingly, views of the Court vary greatly based on the political preferences of poll respondents.^[3]See here, here, here, and here for recent polling. What is surprising given these results is that majorities of the public actually agree with major SCOTUS decisions more often than not. See here and … Continue reading Most alarming of all, justices and judges face threats to their personal safety and security.

Is there truth to the charge that justices and judges are mere politicians in robes and particularly that the conservative SCOTUS majority is biased toward Trump?

Trump’s aggressiveness and indifference to law have triggered a flood of legal challenges to his actions. The results so far are mixed. His administration has suffered heavy losses in federal district courts but has fared better at appellate levels. The Supreme Court has overwhelmingly supported Trump in preliminary, usually procedural rulings on its emergency (AKA “shadow”) docket. The high court also sided with Trump in many substantive decisions but ruled against him in others, including on two of his top priority issues—tariffs and birthright citizenship.

In any event, raw numbers don’t prove much. Undoubtedly, legal strategy has a significant impact on the disparity between Trump’s success rate in district courts versus SCOTUS. Attorneys challenging Trump’s policies tend to sue in judicial districts they regard as most likely to rule their way, and Trump’s attorneys are quite selective in deciding which adverse rulings to take to SCOTUS.^[4]See here and here.

Beyond the outcome numbers, many Trump-related Supreme Court rulings split 6-3 between justices appointed by Republican presidents and those appointed by Democrats. This is obviously significant, but does it signify pro-Trump bias as many on the left insist?

The most credible answer comes from one of the Court’s own liberals, Justice Elena Kagan. Justice Kagan does not hesitate to criticize her conservative colleagues in her written opinions or in comments outside the Court. At a recent conference, however, she flatly dismissed the charge of pro-Trump bias as a “bad rap.” She explained:  

“Is this court very conservative? Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes. But, is this court kind of a puppet for the current administration? I think definitely not.”

“I don’t see this as a court that is just going to rubber-stamp what the current administration does — quite the opposite.”

In other words, the conservative justices are doing what conservative jurists do based on their jurisprudential principles. Their “playbook” generally features: close adherence to legal text (“textualism”) as originally understood (“originalism”) when interpreting constitutional and statutory law; skepticism toward the existence of constitutional rights that are not specified (“enumerated”) in its text; reluctance to interpret statutes as conferring sweeping powers on the executive branch unless clearly expressed in the text (“major questions doctrine”); and strict application of procedural prerequisites to lawsuits (standing to sue, venue, etc.).^[5]See here, here, and here.

By contrast, the liberal legal playbook features interpreting constitutional and statutory provisions flexibly in light of their overall purposes and how they can best address current societal needs and circumstances. It is also more accommodating to use of litigation to achieve social ends. The fact that liberal justices (and judges) consistently follow their playbook in siding against Trump does not demonstrate anti-Trump bias any more than rulings in favor of him based on the conservative playbook demonstrate pro-Trump bias.

While their application frequently produces contrasting results, both playbooks are within the mainstream of legal thought. Indeed, having both represented on our courts is healthy for our jurisprudence. The integrity of judges and the legitimacy of courts should not be measured by the political outcomes of their decisions. Instead, the appropriate test is whether their decisions consistently reflect the reasonable application of legal principles whether derived from the conservative or liberal “playbook” or other recognized sources.

I’d submit that most work by SCOTUS passes this test, but there are exceptions. Most notably, the conservative majority’s decision last year on presidential immunity contradicts core principles from the conservative playbook. The Court’s decision this year rejecting Trump’s birthright citizenship executive order should have been a slam-dunk under the conservative playbook and its decision rejecting his tariffs was not far behind, but some conservative justices dissented from both of them. At least one of the Court’s emergency docket rulings seems unjustified by any playbook.

Unfortunately, we live in a time of little tolerance for opposing views and scant interest in rational debate. Instead, contrary views are regularly dismissed as the product of bad faith or ignorance. It’s hard to imagine any major figure today, left or right, responding to a loss on an important politically charged case by saying: “While I disagree with the outcome, I understand and respect the court’s decision.”

It doesn’t have to be this way; in fact, it wasn’t just a few decades ago. Al Gore accepted the controversial SCOTUS decision that arguably cost him the presidency. Public approval of the Court was significantly higher than now even after that decision. There was general agreement that elections have consequences and, therefore, presidential judicial nominations were entitled to considerable deference so long as the nominees were intellectually and ethically fit and within the legal mainstream. Senate rules required supermajorities to confirm judicial nominees, thereby both tempering presidential choices and ensuring some bipartisan congressional support.

The most effective judicial reform would be simply to return to this system, which worked well most of the time (although not always) and produced judges and justices of widely diverse ideologies who were usually approved by strong bipartisan majorities. Alas, there is little chance of this in our current political environment.

At 250 years of age, our democracy faces serious challenges. Conditions favorable to an authoritarian-minded president like Donald Trump existed before he came on the scene and will continue after he’s gone. The key problem is the collapse of Congress as an independent, coordinate branch of government and effective check on presidential excess. This, in turn, results from the polarization of our politics and its capture by the far left and right. If our democracy is to endure, ordinary Americans must heed Ben Franklin’s warning, reclaim our politics, and restore functionality to Congress.    

At our Nation’s 250^th birthday and the Constitution’s 237^th year in effect, what can be said about the state of our democracy and its future prospects?

The evolution of our government

For starters, governance within our democracy has evolved in many ways since the Nation’s founding. In fact, the balance of governmental power today is almost the inverse of the model envisioned by the founders.

The ascendancy of the federal government. The founders considered the individual states to be the primary source of governmental authority over American citizens with the federal government limited to specified (“enumerated”) powers. Over the course of our history and for various reasons, however, the federal government assumed the dominant position. It now holds pervasive influence over the states, individual citizens, and public and private entities through the direct exercise of legal authority and indirectly through massive spending programs that come with strings attached. Virtually all major contemporary policy issues, including those concerning domestic matters, are or eventually become federal issues.

The decline of Congress. Within the federal government, Article I of the Constitution established Congress as the first and arguably preeminent branch and assigned it primary responsibility for setting federal policy through legislation. However, Congress has effectively demoted itself to the least important branch, abdicating much of its responsibility to the executive branch and even the courts. Federal policymaking now emanates primarily from the president and the vast executive branch bureaucracy with Congress reduced to a mainly reactive role. 

The primacy of the president. Within the executive branch, power “belongs to the President alone,” as the Supreme Court puts it. The president always exercised plenary legal authority over most executive agencies. The Court recently extended this control to so-called independent regulatory agencies, once described as a “fourth branch” of the federal government.^[1]It carved out a lone exception for the Federal Reserve Board, seemingly based on pragmatic rather than legal considerations.

The enhanced importance of the judiciary. The federal judiciary, which the founders considered the least significant branch, has assumed a considerably broader role than originally envisioned. This is due to the greatly expanded reach of the federal government and with it federal law, the need to resolve gaps in the law left by a derelict Congress, and sometimes activist judges both liberal and conservative.

In short, the dispersion of governmental authority that the founders anticipated has yielded to a much more centralized system in which most powers are concentrated in the federal government and within it the president. 

The Trump effect

Given the federal government’s vast authorities and the president’s command over them, contemporary occupants of the White House begin to resemble, at least potentially, the kind of monarch we rejected 250 years ago. Even more so considering the sweeping king-like immunity from civil and criminal liability that the Supreme Court has conferred on them. The potential for an authoritarian president existed before Trump but was less obvious since none of his predecessors, whatever their faults and excesses, demonstrated his wholesale disregard for democratic values.

Trump disdains the rule of law and democratic norms, claiming to be constrained only by his own “morality” and governs erratically by personal whim. He’s filled his administration with sycophants and enablers, many of whom apparently share his indifference to legal norms and even their own oaths of office and ethical obligations. He makes no effort to appeal beyond his base or to work with his political opposites. He unabashedly uses his office to enrich himself and his family and to indulge his vanity. 

No doubt the founders would be greatly disappointed that someone who apparently sees himself as the second coming of King George III is president at the Nation’s 250^th birthday. But they might not be shocked. James Madison presciently observed:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

What surely would shock them is the breakdown in the internal controls–separation of powers and checks and balances– they carefully built into the Constitution to rein in a profoundly non-angelic character like Trump.

Congress has hit rock bottom. Republican majorities in the House and Senate allow and even encourage Trump to usurp their constitutional authorities in many areas including government organization, tariffs, war powers, and their most basic power of the purse.^[2]See here and here. Critical oversight of the executive branch is wholly lacking. Incredibly, some in Congress actually help Trump undermine their own oversight authorities.^[3]See here and here. Congress’s highest ranking official, House Speaker Mike Johnson, is essentially a Trump minion as Trump has insultingly noted.

With Congress AWOL and the executive branch stocked with yes-people, the federal judiciary is left as the only significant internal check on the president. However, courts are not well suited to serve as the first, much less only, line of defense against presidential excesses. They are necessarily reactive and limited to resolving justiciable disputes brought by parties with legal standing. Their role is particularly limited in matters relating to foreign affairs and military operations.  

Political polarization

The ever-increasing polarization of our politics is a major factor in the demise of Congress as well as the general decline in our democracy. As a result of residence patterns, resurgent gerrymandering, and efforts of the two major parties to suppress third-party rivals, few congressional races remain competitive. Real competition is usually confined to the primaries where turnout is typically light and voting is dominated by the more partisan and ideologically extreme bases of each party. Candidates win primaries and then cruise through general elections by appealing to those base voters; they remain in office by continuing to play to the base in order to avoid being “primaried” in the future.

The once-popular notion that politics is the art of compromise has no place in this environment. Members of Congress survive by operating as loyal foot soldiers in Team Red or Team Blue rather than free-thinking legislators focused on the broader public interest and the interests of their constituencies as a whole. They have no incentive to work across the aisle or stray from their team’s many ideological red lines and every reason not to.

The result of this is frequent gridlock in times of divided government. Alternatively, when (as now) a single party holds the “trifecta” (control of the presidency and both houses of Congress), partisan steamrolling generally prevails. Majority party members function as an extension of the executive branch instead of a separate, co-equal body.

Polarization increasingly characterizes our public discourse beyond Congress as well. A healthy democracy depends on broadly shared agreement among the citizenry over core values along with reasoned, respectful debate about how best to achieve them. Both are in short supply today. Opposing ideological factions can’t agree on objective facts much less subjective values. Demonization of people who think differently and talking past each other substitute for constructive engagement.

Social media influencers exacerbate the problem as do traditional media outlets. Few are unbiased and even most media fact-checkers have an ideological bias. Unsurprisingly, public confidence in the media and indeed almost all institutions, public and private, is low and falling lower. The confidence ratings themselves often reflect sharp ideological divides.   

Lessons learned courtesy of Trump

A silver lining of sorts to Trump’s presidency is that it provides a useful stress test for our democracy. Thankfully, democracy has not failed entirely. The federal judiciary countered some of Trump’s worst excesses. So has the public. Ordinary citizens pushed back against his extreme anti-immigration tactics and efforts to indict some of his perceived enemies. Strongly negative public opinion constrained him in other areas as well.

At the same time, Trump’s presidency highlights two major vulnerabilities. One is the unreliability of Congress as an independent branch of government and check on the president especially during periods of one-party rule. The second is the ease with which a president—potentially any president—can weaponize and abuse the awesome regulatory, law-enforcement, military, and other resources at their disposal to serve their ends, whatever they may be. To paraphrase Trump, the health of our democracy depends to a great extent on the personal morality of whoever happens to be president.

How to strengthen our democracy

The current distribution of power is unlikely to change fundamentally; the federal government will remain predominant as will the president at the head of it. Trump may turn out to be a uniquely awful president, but that’s hardly guaranteed given our debased politics. Hopefully, the courts will continue to be a significant check on presidential lawlessness. However, the judiciary is increasingly subject to political attacks from all sides that threaten to undermine its credibility and effectiveness.^[4]See here, here, here, and here.

The key to shoring up our democracy is to bring Congress back to life. It’s unrealistic to expect Congress to regain its original primacy in the constitutional scheme, and perhaps it shouldn’t. But Congress must be restored to a functioning independent branch of government and meaningful check on presidential power regardless of which party is in control of what. Referencing Madison again, “there can be no liberty where the legislative and executive powers are united in the same person.”

This is certainly doable. Congress was reasonably functional not too long ago. It included many members from both parties who were serious legislators, not just knee-jerk partisans. Compromise and bipartisanship were considered virtues and positive job qualifications rather than firing offenses. Candidates regularly campaigned on their ability to work across party lines to achieve results. Remarkably (from today’s perspective), members sometimes rose above party loyalty at important moments. It was Republicans who ultimately forced the resignation of President Nixon. 

The conditions seem favorable for a return to such Congresses. Our increasingly polarized two-party duopoly doesn’t reflect the views of most Americans. The public is much more ideologically diverse  with only a minority fitting into either extreme. A majority of Americans hold moderate, pragmatic views; in fact, there is broad public consensus on many issues that divide the parties. Most Americans prefer collaboration, compromise, and problem-solving to ideological posturing.^[5]See, e.g., here, here, and here. Unsurprisingly, most are estranged from both parties.

Furthermore, both parties are ripe for change. The Republican Party is little more than a cult of Trump and will have no clear identity once he leaves office. The Democratic Party has been searching for an identity for years. Either party stands to gain by moving closer to the values of most Americans.

It would not take a massive political groundswell to force major change. Despite the dearth of competitive individual elections, the Nation as a whole is closely divided and narrow majorities are the norm in both houses of Congress. Electing moderate, bipartisan-minded members to a relatively few more House and Senate seats could provide a critical mass necessary to hold the balance of power in each body, especially if they aligned with the relatively few like-minded members still there.

But the only sure means of accomplishing such change is for ordinary Americans to shake off their (understandable) frustration and cynicism and engage more actively in politics, particularly in primary elections, either to force the two parties closer to the center or to support independent candidates or third parties who better represent their values. In a democracy, citizens get the government they deserve. When asked what kind of a government the founders gave us, Benjamin Franklin famously replied “a republic, if you can keep it.” Everyday citizens need to step up now and reinvigorate our democracy if we are to keep it.

 

 

Judges today are regularly chastised from both the left and right for deciding cases based on their personal or political biases rather than “the law.” Two closely related guardrails to help keep them focused on the legal merits are “textualism” and “originalism.” 

Textualism simply recognizes the obvious fact that when interpreting a legal document (statute or constitution), the law is what the text says it is; thus, the answer must be embodied in or at least anchored in the text. Originalism holds that legal text must be interpreted in accordance with how its meaning was publicly understood at the time of its enactment. Attaching a new and different meaning to the text amounts in effect to amending the law, which is a job for elected legislators not unelected judges.^[1]See here and here for background.

While textualism and originalism are usually associated with conservative jurisprudence, they are fundamentally sound interpretive approaches and should be followed whenever possible. Their only real limitation is practical rather than conceptual: The legal text often does not provide a clear original public meaning even after applying the standard interpretive tools available to judges. This is particularly true of cases that reach the upper levels of judicial review.

One would think, therefore, that when a rare ideal case comes along judges who claim to be textualists/originalists would make short work of it. This brings us to Trump v. Barbara, the birthright citizenship case just decided by the Supreme Court. The issue was whether an executive order by President Trump that attempts to deny U.S. citizenship to offspring of illegal immigrants and some others born in the United States violates the Fourteenth Amendment, which provides:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 

When Trump originally proposed this executive order, I was confident that ruling against it would be a slam-dunk for the courts, including SCOTUS if the case got that far. After all, the children are indisputably born in the United States, and they are clearly subject to its “jurisdiction” in the obvious, everyday sense of being required to comply with its laws and powers. Indeed, the exception for those not subject to U.S. jurisdiction was understood to apply only to children of foreign diplomats and a few other narrow categories of people such as members of certain Indian tribes who were considered exempt from U.S. sovereignity at the time the Fourteenth Amendment was adopted.

SCOTUS did ultimately declare the executive order unconstitutional, as had every other court that considered it. However, the decision was essentially 5-4 with only two of the Court’s six conservative justices joining the three liberals to rule it unconstitutional.^[2]Justice Kavanaugh disagreed with the majority’s constitutional analysis but technically concurred in the result on the grounds that the executive order violated a similarly worded statute. Moreover, the various opinions consume almost 200 pages delving into a wide range of common law, legislative, judicial, and historical sources discussing different approaches to establishing citizenship as well as exploring policy considerations.

Chief Justice Roberts’ relatively brief 26-page majority opinion notes (pp. 10-11) that the Fourteenth Amendment’s key phrase “subject to [U.S.] jurisdiction” required the result the Court reached since it “uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory.” The dissents discuss at length concepts and terms the drafters of the Fourteenth Amendment could have used but didn’t. As Roberts pointedly observes (p.22), the main dissent “has little to say” about the operative legal text—“subject to the jurisdiction” of the United States—that the drafters actually did use. Other dissents strain to create ambiguity where none reasonably exists on the face of the operative language. 

The dissents also emphasize that the drafters of the Fourteenth Amendment did not confront the issues the Nation now faces over widespread illegal immigration, “anchor babies,” and “birth tourism.” This is certainly true, and they might well have adopted different language if faced with current conditions. However, as any textualist/originalist worth their salt would insist, the remedy in such cases is not for judges to adopt a “revisionist” interpretation (as Roberts puts it) to update the meaning of the text but rather to amend the law through the appropriate legislative process.^[3]Actually, there’s much that can be done administratively to blunt the perceived negative consequences of birthright citizenship. Notably, there’s nothing to stop the federal government from … Continue reading

Five justices did the right thing here, but this should have been a much shorter and straightforward 9-0 decision. How can the four dissenting conservative justices maintain their credibility as textualists/originalists when they abandon these principles in a tailor-made case like this?

Donald Trump’s “settlement” of his claims relating to the leak of his tax returns is outrageous on many levels.^[1]See, e.g., here, here, here, and here.  One is that the financing scheme for the settlement’s “anti-weaponization fund” is unconstitutional. The proposed source, the Judgment Fund, clearly is not available for this purpose nor is there any other legitimate source. Consequently, payments by the anti-weaponization fund would violate Article I, § 9, Clause 7 of the Constitution, which provides:

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” 

Such payments would also run afoul of the Antideficiency Act (31 U.S.C. § 1341), which carries criminal penalties for knowing and willful violations (31 U.S.C. § 1350).

Like all federal expenditures, payments to satisfy court judgments against the United States or settlements of claims potentially leading to judgments require a congressional appropriation. To avoid having to review each individual judgment and settlement, Congress enacted a permanent, indefinite appropriation known as the Judgment Fund (31 U.S.C. § 1304).^[2]See also 28 U.S.C. § 2414 with reference to compromise settlements. However, the Justice Department’s attempt to use the Judgment Fund in this case is manifestly illegal for two reasons.

First, to be payable from the Judgment Fund a compromise settlement must result from the resolution of a genuine dispute between opposing parties.^[3]See, e.g., U.S. Government Accountability Office (GAO), 3 Principles of Federal Appropriations Law (3d ed., 2008) at 14-35, citing GAO and Justice Department opinions. The settlement here gives every indication of being a sham. Trump initially sued a federal agency of the executive branch he heads. He dropped the lawsuit as (and probably because) the judge questioned whether it involved a sufficiently adversarial relationship between the parties to constitute a case or controversy amenable to judicial resolution. Trump described the ensuing negotiations as “work[ing] out a settlement with myself.”  The Justice Department apparently offered no opposition to Trump’s claims at any stage although it had strong defenses, most notably that the claims were barred by the statute of limitations.   

Second, even if this is somehow regarded as a bona fide compromise settlement, it does not qualify for payment from the Judgment Fund. The Judgment Fund is available for the payment of money damages to identifiable parties to final judgments and compromise settlements.^[4]Id. at 14-38 and decisions cited. Consistent with many other precedents, a 1989 opinion by the Justice Department’s Office of Legal Counsel holds that the Judgment Fund can be used only for judgments and settlements “to pay specified sums of money to certain parties.”^[5]More broadly, a memo issued by former Attorney General Bondi strongly discourages settlements from including payments to individuals or entities that weren’t parties or victims in a case.

Under the terms of this settlement, none of the proposed $1.776 billion anti-weaponization fund goes to the parties or to any specifically identifiable recipients. Moreover, the stated purposes of the fund are wholly unrelated to the leaked tax return claims on which the settlement is supposedly based. Even the amount appears symbolic rather than a credible measure of damages related to the underlying claims. In essence, the settlement has nothing to do with the claims it purports to settle.

Acting Attorney General Blanche cites Keepseagle v. Vilsack as precedent for use of the Judgment Fund here. Keepseagle involved a class action settlement of discrimination claims by Native Americans. Using the Judgment Fund, the court-approved settlement established a fund to pay claims by class members but further provided that any amounts left over after paying class members would be paid to non-profit organizations that supported Native Americans.

When it turned out after five years that class member claims were far less than anticipated and over half the settlement would go to non-profits, some class members sought to reopen the settlement. One of their arguments was that payments to non-profits violated the Judgment Fund. A federal district court and a court of appeals rejected this argument but not on its merits; rather, they ruled only that it was too late to raise the issue.

None of the four judges in Keepseagle endorsed use of the Judgment Fund for payments to non-parties. Indeed, the district judge expressed doubt that the Judgment Fund could be used for this purpose. One appellate judge wrote a lengthy dissent asserting emphatically that the non-party payments were a clear misuse of the Judgment Fund that the court should correct.^[6]The dissent (p. 36) was prescient in predicting the abuse that could result from allowing Judgment Fund payments to non-parties. It offered as a hypothetical an executive branch settlement of $1 … Continue reading Thus, Keepseagle provides no legal support for the settlement here, and if anything, cuts in the opposite direction.^[7]Furthermore, the settlement in Keepseagle is readily distinguishable from the Trump settlement in many ways. It was an arms-length, court-approved resolution of a real dispute between adverse parties … Continue reading

In sum, it seems clear beyond reasonable doubt that the settlement here is a charade that ignores the claimants and has nothing to do with their claims. Rather, it’s merely a cover to illegally use the Judgment Fund to bypass Congress and raid the federal treasury to finance a large unauthorized spending program. The key players in this farce surely understand its illegality and potential criminal implications. It’s probably no coincidence that the general counsel of the Treasury Department, which is responsible for certifying payments from the Judgment Fund, resigned on the same day the settlement was announced.

This is not the first time the Trump administration has flouted the Constitution and the Antideficiency Act to spend taxpayer funds without the requisite congressional appropriation. It paid TSA and other Homeland Security Department employees during the recent partial government shutdown although no appropriation for their salaries was legally available. That action drew little scrutiny since it was popular with the public and politically expedient for both parties. This far more egregious abuse is already attracting much greater attention and skepticism.

What if anything will be done about this travesty remains to be seen. Two police officers who served during the January 6 Capitol riot have sued to stop it; however, their suit (and probably any others) will face major standing challenges. Perhaps this blatant affront to Congress will finally rekindle some interest by its members in performing their constitutional duties. But Congress will also face a steep climb since it would presumably take veto-proof majorities to overturn the settlement. Perhaps the best hope is that public and political pushback will become sufficiently intense to force Trump to do a TACO.

 

       

It shouldn’t be too surprising that the Virginia Supreme Court invalidated the state’s travesty of a gerrymander. Attorneys apparently warned that the process by which the Virginia General Assembly developed a constitutional amendment to enable the gerrymander posed legal risks. Even as the Supreme Court initially declined to stop an April 21 referendum on the proposed amendment it acknowledged that the challengers presented “weighty assertions of invalidity against the process” that “are of grave concern to the Court.”  

The Court’s eventual 4-3 decision held that the General Assembly violated the Virginia Constitution’s multi-step process for enacting constitutional amendments. The Constitution requires the General Assembly to pass proposed amendments in two consecutive legislative sessions with an intervening election. The intervening election gives citizens an opportunity to factor their views of the amendment into their votes for legislators who will act on it for the second and final time. The last step in the process is a referendum on the proposed amendment.

In this case, the first General Assembly session passed the gerrymandering amendment on October 31, 2025. Election day for the next session was November 4, 2025, but early voting for that session started on September 19. Thus, the “intervening” election was well underway before the first passage of the proposed amendment took place; about 40 percent of the electorate had already voted by October 31. The Court held that this sequence of events failed to comply with the constitutional framework. It rejected the state’s argument, embraced by the dissent, that the term “election” as used in the constitutional provision governing amendments referred only to the single election day of November 4.

While the issue is technical and perhaps reasonably debatable, the Court’s conclusion seems consistent with the constitutional text and structure and certainly aligns better with its underlying purpose. Notably, because the Court held that the process was unconstitutional, it declined to address several statutory challenges to the proposed amendment that had also been raised. One of these was that the referendum ballot description of the amendment’s purpose “to restore fairness in the upcoming elections” was misleading. Clearly, it was not just misleading but patently false.

While Virginia Democrats of course expressed disappointment at the decision, few had much to say about its substantive legal merits. Some chose to attack the Court’s integrity. Virginia Attorney General Jay Jones described the decision as politically motivated and accused the Court of elevating “politics over the rule of law.” He appealed the decision to the U.S. Supreme Court although the case presents no apparent federal question.^[1]Contrary to the SCOTUS appeal, the Virginia decision is not “predicated” on federal law; rather, it’s based exclusively on provisions of the Virginia Constitution. It cites several federal … Continue reading  

Congressman Don Beyer was either uninformed or disingenuous in condemning the Court’s “indefensible decision to release [the decision] after the referendum was held.” In fact, Virginia lawyers defending the amendment argued that the Court lacked authority to enjoin the referendum and could rule on the amendment’s legality only after the referendum was held. Reportedly a few Democrats are exploring a wild scheme to undo the decision by replacing the entire Virginia Supreme Court.

In the final analysis, Virginia legislators have only themselves to blame for the outcome. They cut corners in rushing to push through the proposed amendment with little regard for the legal details and paid the price for it. So did supporters of the amendment, who reportedly spent more than $60 million on it mainly from dark money sources.

Moving beyond the decision itself, what are its consequences?

First and foremost, Virginia will keep its current eminently fair congressional district map—at least for now.^[2]One interesting side note is that this map was actually put in place by none other than the Virginia Supreme Court after the state’s bipartisan commission failed to reach an agreement. However, the General Assembly may well take another shot at bypassing the state’s constitutionally mandated bipartisan redistricting process given national gerrymandering trends. (See below.) If so, presumably it will adhere more scrupulously to the constitutional and statutory requirements next time.

The political impact is uncertain. Democrats won’t be favored to gain the four House seats they hoped to flip in 2026 by their gerrymander. However, prognosticators think they may still pick up one or more of these seats fair and square if 2026 proves to be as strong a year for Democrats as many predict.

Looking beyond Virginia, the decision is obviously a negative in terms of Democratic hopes to gain control of the House in the 2026 elections, but it’s not likely to be a major factor. Its impact will probably be eclipsed by the fallout from the U.S. Supreme Court’s also very recent Voting Rights Act decision in Louisiana v. Callais. This decision has already unleashed a new wave of gerrymandering potentially more significant than the initial wave Trump launched last year that led to the Virginia gerrymander. (See here.)

Both waves are bad news for our politics. Until recently, the grossly anti-democratic practice of gerrymandering seemed to be on the wane. Redistricting typically occurred only once every decade as required by the decennial census; a number of states adopted nonpartisan or bipartisan redistricting processes like Virginia’s; and state courts occasionally overturned partisan gerrymanders. However, we are now entering what has been described as an “era of perpetual redistricting” in which politicians of both parties engage in partisan gerrymandering whenever and wherever they can as they accelerate their race to the bottom.

How it all ends, if it ever does, remains to be seen but the consequences for the overall health of our political system are grim. Most if not all independent redistricting systems are likely to fall victim to the politicians at some point. And, of course, tens of millions of Americans of all races, backgrounds, and political leanings will see their constitutional voting rights diminished.  

Much of this would have been avoided if the Supreme Court hadn’t shirked its responsibilities in its unfortunate 2019 Rucho v. Common Cause decision, which foreclosed federal judicial review of partisan gerrymanders no matter how blatant or extreme.

 

 

The Supreme Court’s recent decision in Louisiana v. Callais prompted strong reactions, mainly intense criticism on the left. It deals with the controversial subject of racial gerrymandering and the Voting Rights Act (VRA) on which the Court’s jurisprudence is complex and often confusing.

The case is complicated factually, legally, and procedurally. Adding to its perplexity, the majority opinion and dissent have very different takes on the decision’s significance. The majority opinion by Justice Alito claims to be faithful to existing precedents and merely “update” their interpretations of the VRA. Justice Kagan’s fierce 48-page dissent counters that the decision effectively overrules existing precedents and fundamentally changes how the VRA is interpreted and applied, “eviscerating” it in the process.

Despite the confusion, the bottom-line holdings of Callais are clear:

• • • The Fourteenth Amendment prohibits race-conscious electoral districting unless required by the VRA to remedy race discrimination.
    • The VRA “as properly construed” prohibits only intentional race discrimination in districting and does not reach actions that have discriminatory effects but lack provable racist motives.
    • To establish the necessary “strong inference” of intentional race discrimination in districting, challengers must “disentangle” race from all “legitimate” alternative motives, including partisan politics.
    • Applying the foregoing principles, the race-based majority-minority electoral district at issue in Callais was not required by the VRA and therefore constituted a racial gerrymander prohibited by the Fourteenth Amendment.

The decision’s practical consequences are likewise clear. First, since African Americans (and some other minorities) vote heavily Democratic, it’s very challenging to “disentangle” race from politics in modern day gerrymandering. Finding evidence of overt racism is also very difficult in this day and age.^[1]Whether this is because racism has in fact receded or just gone underground is debatable. Therefore, it will now be virtually impossible to successfully invoke the VRA to overturn a gerrymander no matter how much it may adversely impact minority voters.

Second, while devaluing the vote of African Americans based on racist motives remains illegal (at least in theory), devaluing their vote based on partisan political considerations is perfectly OK. As the Callais majority puts it, “a minority voter is entitled to nothing less and nothing more” than the same opportunity as any other voter to elect their preferred candidates. Thus, minority voters also share the same opportunity to be victimized by partisan gerrymandering.^[2]Partisan gerrymandering may still be limited or outlawed under state law. 

Third, the Callais decision severely jeopardizes many current majority-minority House districts and adds considerable fuel to the gerrymandering war that President Trump ignited last year. (More on this below.)

There’s ample room for debate over the legal merits of the Callais decision. All agree that the Fifteenth Amendment, the ultimate source outlawing race discrimination in electoral districting, prohibits only intentional race discrimination.^[3]Justice Kagan’s dissent acknowledges this point. But the Fifteenth Amendment authorizes Congress to enforce it by appropriate legislation. That’s what Congress did in the VRA. The VRA seemed to be expanded to reach actions having discriminatory effects under a 1982 amendment and was apparently so viewed in subsequent judicial decisions, including those of the Supreme Court.

Given the above, Justice Kagan makes a convincing case that the Callais majority fundamentally changed rather than just “updated” how the Act is interpreted. The majority opinion does come across as an attempt (perhaps a compromise among the majority justices) to downplay the extent to which it departs from the current understanding of the law.

Nevertheless, the fact that the majority’s explanation may be disingenuous in parts doesn’t necessarily mean its conclusions are wrong. Surely, Congress cannot rewrite the Fifteenth Amendment in the guise of enforcing it. Thus, it’s not unreasonable to maintain that Congress’s enforcement authority operates only within the parameters of the Fifteenth Amendment and doesn’t extend to enlarging the scope of what it prohibits.     

Whether one agrees with it or not, the Court’s decision in Callais seems less outrageous from a strict legal viewpoint than the liberal commentariat makes it out to be. But there’s another decision lurking in the background that is truly outrageous: Rucho v. Common Cause, the 5-4 decision in which the Court held that partisan (as opposed to racial) gerrymandering raised political questions that the federal judiciary is unable to resolve. Had the Court done its job in Rucho, the outcome in Callais would be far less concerning. No citizen, minority or majority, should be subject to the pernicious, grossly anti-democratic gerrymandering practices that Rucho effectively condoned.^[4]See, e.g., here and here.  

The majority’s reasoning in Rucho was exceptionally lame while the dissent, here also written by Justice Kagan, was far more persuasive in every respect. It begins:

     “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

     “And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.”

Justice Kagan renews her criticism of Rucho in her Callais dissent. She observes (correctly) that Rucho’s “adverse effects have never been more obvious than today, as this country’s two major parties compete in a race to the bottom.”   

The combined effect of Callais and Rucho is sure to supercharge the current gerrymandering frenzy. In fact, it already has. Southern red states are rushing to eliminate majority-minority House districts established under the VRA. Blue states will likely enact retaliatory gerrymanders. Two such states (Colorado and New York) are working to undo their independent redistricting processes so they can join in. Two others (California and Virginia) that already “temporarily” sidestepped their independent processes will probably do so again or simply repeal them.

It’s hard to know which party will come out on top when the dust settles—if it ever does. However, the losers are all too obvious. Millions of Americans of all races and political leanings will be effectively disenfranchised. Competitive House districts will become even rarer than they are now; the most extreme factions in each party will become even more dominant with primaries increasingly being the only meaningful election stage; and House members will become even more polarized, reflexively partisan, and less representative of their constituencies as a whole. In short, our politics and governance will sink even lower.

Much of this could have been avoided if the Court hadn’t washed its hands of partisan gerrymandering in Rucho. There’s no way the courts can stamp out gerrymandering completely; politics will always play a role in electoral districting. However, it’s hardly challenging to identify and overturn the blatant, openly acknowledged partisan gerrymanders that are commonplace today. Even the threat of judicial scrutiny would probably be enough to deter many of them.

Sadly, there’s little chance that the Court as now constituted will revisit this issue and “update” Rucho based on current conditions.       

 

 

 

 

 

 

 

 

While mid-decade gerrymandering has attracted more attention, another initiative with potentially broader impact on voting is advancing largely under the radar. The National Popular Vote Interstate Compact (NPVIC) is a proposed agreement among states to award each participating state’s electoral votes to the presidential candidate receiving the most popular votes nationwide regardless of whether that candidate won the popular vote in that state. Its premise is that presidential elections should be decided by direct popular vote rather than the current electoral college process.

The NPVIC movement began in 2006, inspired mainly by the 2000 presidential election in which George W. Bush narrowly lost the popular vote to Al Gore but prevailed in the electoral college. There have been four other instances, most recently 2016, when the presidential winner lost the popular vote.^[1]Donald Trump in 2016, Benjamin Harrison in 1888, Rutherford B. Hayes in 1876, and John Quincy Adams in 1824. Adams lost both the popular vote and in the electoral college but was elected by the House … Continue reading By its terms, the NPVIC will take effect only if it attracts enough states to control 270 electoral votes, the number needed to decide presidential elections. According to its website, 18 states and the District of Columbia, now holding a total of 222 electoral votes, have signed up so far. The most recent addition is Virginia, which joined just this year. The NPVIC currently needs to add states having only 48 more electoral votes to become operative.^[2]The exact number is subject to change since the allocation of electoral votes among states will undergo revision following the 2030 census.

A reasonable case can be made that the NPVIC would advance democratic principles. Electing the president by popular vote certainly seems more democratic. It’s fair to argue that the electoral college is anachronistic and the Constitution would instead provide for direct popular election of the president if it were written today. Presidential elections by popular vote should also enhance citizen engagement since the competition would truly be nationwide rather than limited in practice to the handful of swing states that now tend to determine the electoral college winner.

However, the NPVIC also carries many potential downsides. For starters, there are profound issues over its constitutionality. It’s an obvious attempt to circumvent the state-based process adopted by the framers of the Constitution, who specifically rejected presidential election by direct popular vote. Indeed, it would  nullify the formula for allocating electoral votes the framers carefully crafted to strike a balance between larger and smaller states.

While the Constitution grants states broad discretion over how to choose their electors, it’s questionable whether this extends to making themselves irrelevant by scrapping the state-based system that is central to the Constitution’s design and essentially outsourcing their electoral vote to other states. Another issue is whether the Constitution’s Compacts Clause requires congressional consent to the NPVIC.^[3]See here and here for a detailed discussion of these and additional legal issues.

Elections subject to the NPVIC would present many practical complications as well. A system in which every vote in every state is in play would likely increase election challenges and recount demands exponentially, perhaps requiring nationwide recounts. Simply arriving at initial national vote totals would be a protracted process.^[4]It took California five weeks to certify its 2024 popular vote. All this could leave the presidential election outcome in limbo for an inordinate period.^[5]See here and here for more on these and other practical challenges.

Additionally, the NPVIC has a pronounced partisan tilt. While the initiative has received scattered bipartisan support, its proponents lean heavily Democratic. Every state to adopt the NPVIC so far as well as the District of Columbia is deep blue or blue-leaning. Democrats held a “trifecta” (control of both legislative chambers and the executive) in 17 of the 19 jurisdictions.^[6]In another, Hawaii, the Democratic legislature overrode the Republican governor’s veto of the bill to join. Public opinion polls also show a sharp partisan divide. While a majority of Americans favor popular election of the president, support is much higher among Democrats than Republicans.^[7]See the 2024 polls by Pew and Gallup. Importantly, these polls were taken before the 2024 presidential election.

Another question is whether citizens would readily accept the consequences of the NPVIC if it took effect. It’s one thing to favor direct popular election in the abstract, but would majority voters in states whose electoral votes went to the candidate they opposed really be OK with that? While Democrats apparently feel that popular vote election gives them an edge, they should be careful what they wish for. Trump won the popular vote in 2024; thus, under NPVIC he would have won the electoral vote from all solid blue states whose majorities voted against him. His narrow popular vote margin over Kamala Harris (about 1.5 percent) would have translated to a landslide win in the electoral college.

Finally, there’s a clearly legal, less convoluted alternative to the NPVIC that would achieve the democratic benefits of presidential election by popular vote while preserving the Constitution’s current electoral college framework as well as the integrity of each individual state’s electoral vote. It would also avoid many of the NPVIC’s practical complications.

The fundamental problem with our current system isn’t the electoral college per se but the fact that most states award their electoral votes on a winner-take-all basis. This problem could be solved if each state instead allocated its electoral votes to reflect as closely as possible the popular vote within that state. For example, if the presidential candidates split the popular vote in a state with 10 electoral votes 60 to 40 percent, the winner would receive six of those electoral votes with the losing candidate getting the other four. This approach would consistently align electoral college and nationwide popular vote results, and it’s clearly constitutional. In fact, two states, Maine and Nebraska, now use a variant of it.

Alas, preferable as this approach might be, it seems politically infeasible in our current polarized, hyper-partisan environment. Implementing it would require a degree of collaboration between red and blue states that is hard to envision. Solid Republican and Democratic states would have to cede a significant portion of their now reliable electoral votes to the other party. Nevertheless, those who genuinely seek more democratic presidential elections might at least consider it.

 

 

 

 

 

Confusion abounds over exactly why the United States started the current war on Iran, what its strategic objectives are, and what the war’s likely outcome and long-term consequences will be. Major military operations are necessarily complex and unpredictable; hence the term “fog of war.” However, the evolving and frequently inconsistent explanations by the Trump administration along with President Trump’s erratic threats, actions and increasingly unhinged rants compound the inevitable uncertainty.

Two accounts–one unverified but plausible, the other clearly true–do shed light on how the war came about. Both are troubling. 

A remarkable New York Times story offers a detailed narrative of the presidential decision-making process. It suggests that the pivotal event was a February 11 White House meeting at which Israeli Prime Minister Netanyahu made a “hard sell” for the war to Trump and a small circle of his advisors. Netanyahu insisted that the war could be completed quickly and would result in ousting Iran’s radical regime. He discounted the risk that Iran would close the Strait of Hormuz or attack neighboring countries. After listening to Netanyahu’s pitch, Trump supposedly replied “sounds good to me.”

Of Trump’s advisors, only Defense Secretary Hegseth shared his enthusiasm; the rest expressed varying degrees of skepticism. Over the following days, U.S. intelligence officials assessed Netanyahu’s prediction of an uprising leading to regime change as “detached from reality” and “farcical.” Joint Chiefs Chairman General Dan Caine warned Trump that a major campaign against Iran would drastically deplete U.S. weapons stockpiles and emphasized the risk of Iran blocking the Strait of Hormuz. Vice President Vance opposed the operation outright.

The timetable for reaching a decision was pushed up by intelligence that Iran’s ayatollah would be vulnerable to assassination on a particular day. In the end, none of Trump’s advisors pushed back significantly against his initial inclination to go to war despite their reservations. According to the article, all deferred to Trump’s instinct that the war would be a quick and decisive win.

If even the gist of this account is true, it presents a disturbing picture: Trump launched a major military action based largely on his own instincts, favoring the rosy scenario pushed by Netanyahu over cautionary assessments by military and intelligence officials as well as mainly skepticism by the few advisors he consulted. While its accuracy can’t be established definitively, this account does align with Trump’s consistent tendency to operate mainly by whim with little interest in or tolerance for opposing views. 

The second disturbing feature, which is clearly true, is the absence of any consultation with Congress. The Constitution explicitly vests the power to declare war in Congress. Over time, war powers have shifted dramatically from Congress to the president. Nevertheless, the total absence of congressional participation in this case is striking. Law Professors Bob Bauer and Jack Goldsmith describe the Iran war as “among the most consequential [congressionally] unauthorized presidential uses of force in all of American history,” probably second only to the Korean War, and also “a new nadir in the decline of Congress’s check on presidential war.”

The lack of congressional input is more than an abstract legal concern. Bauer and Goldsmith note that the constitutional authority to declare war was assigned to Congress “to ensure a democratic check on unilateral presidential military adventurism.” They see a direct connection between the absence of consultation with Congress before or since the Iran war began and the volatility with which the administration has conducted it. They submit that “the need to justify and explain [the war] to government leaders outside the presidential bubble might have surfaced the many problems that have become apparent over the last month and counseled a steadier course.”  

Nothing illustrates this better than the conundrum over Iran’s closure of the Strait of Hormuz. Most experts regard this tactic by Iran as entirely foreseeable. General Caine reportedly highlighted the risk to Trump, but Trump brushed it aside and his “bubble” offered little resistance. They now face a variant of Colin Powell’s Pottery Barn rule (“you break it, you own it”). One expert submits that the crisis Trump created regarding the Strait may have caused the war to morph from one of choice to one of necessity.

Trump’s varying responses to the closure have ranged from asserting that reopening the Strait is someone else’s problem, to saying it will somehow reopen itself, to making the reopening an essential part of any settlement of the war. He has now ordered the U.S. military to conduct its own blockade of the Strait.

How the war turns out remains to be seen, but all outward signs along with the above reporting suggest that Trump started it with no coherent, realistic strategy. Moreover, he is operating without either internal or congressional guardrails.

Clearly, the U.S. military is performing at a high level; perhaps the war will achieve strategic outcomes justifying its huge costs and other consequences. However, surely this is not the way to initiate and conduct a major war. The track record of U.S. military actions over recent decades is not good even when undertaken by more conventional presidents with more serious advisors than the ever more bizarre Trump and his gang of sycophantic enablers.