Wednesday, November 30, 2016

#RIPUSA Congress Should "Pack" the Supreme Court

One of the many political myths to which Americans continue to cling is the idea that the Supreme Court is an "non-political" institution and that its traditions and institutional framework are sacrosanct.

The court has never been non-political, of course, and has always been composed of political appointees closely connected to elected officials in Washington.

Indeed, the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a one-time candidate for president and governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to Deep Thinker after his appointment is unconvincing at best. Or we might point to the famous “switch in time that saved nine” in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt administration. Indeed, Supreme Court justices are politicians, who behave in the manner Public Choice theory tells us they should. They seek to preserve and expand their own power.

Similarly dubious is the idea that the court must be composed of nine judges and that the US Senate has an obligation to appoint new members when a vacancy occurs. It is even widely assumed that the US Constitution dictates the size and makeup of the Supreme Court. In truth, the Constitution is silent on this matter, the Court has not always been composed of nine judges, and there have not always been an odd number of justices. At times, the Court has functioned on a super-majority model.

Following the death of Antonin Scalia, though, many otherwise-well-informed people were absolutely convinced that the US Senate was acting contrary to the Constitution when Senate Republicans announced they had no intention of filling the vacancy until after the 2016 election.

Indeed, this puts Trump in the position of appointing potentially more than one Supreme Court justice during a single four-year term. He comes in with a vacancy on day one, and the three oldest members of the Court are all left-leaning judges — which means the complexion of the Court could be changed considerably over Trump's term.

While the political climate will no doubt result in a Scalia replacement being picked relatively soon, the Senate has no obligation to ever ratify anyone to fill the Scalia vacancy. The Senate is constitutionally free to refuse to confirm any new justices indefinitely, thus making a de facto change in which the Court consists of eight justices. The Congress overall is also free to pass a law formally reducing the size of the court. But it need not do so.
Undermine the Court by Making It Bigger

However, there is no reason why the Congress could not go in the opposite direction and appoint multiple new members to the Supreme Court. It certainly has the Constitutional authority to do so. As was the case with Franklin Roosevelt's so-called "court-packing" plan, enormous reforms to the Supreme Court require nothing more than a change in statute, or in come cases, Senate inaction.

This move would help to make it abundantly clear the fact that the Supreme Court is a political institution just as it was always intended to be. It would also be helpful in asserting Congressional supremacy over the Court. Apart from the Constitutional mandate that there be a Supreme Court — of indeterminate nature — it is totally a creature of Congressional regulation.

If Congress wishes it, it could fill the Scalia vacancy, and then add three or more seats in recognition of the approaching deaths and (possible) current senility of Justices Breyer (age 78) Kennedy (age 80), and Ginsburg (age 83).

As justification, Congress need only explain that the 3 new seats will allow for new justices to be ready and already trained on "day one" following the next death or resignation on the Court. Congress can elect to then not fill the Ginsburg vacancy (for example) and allow the court to slowly revert to nine judges.

But why be so conservative? Given that the Supreme Court is now more of a Supreme Legislature than a Supreme Court — issuing what are essentially Constitutional amendments with each new ruling — the court could quite reasonably be expanded to be more representative of the 320 million people the justices like to continually boss around.

Indeed, as the court has become vastly more powerful, it has become far less representative. In 1790, for example, there was one Supreme Court judge for every 600,000 Americans. Today, there is one Supreme Court judge for every 35 million Americans.

If one seeks a court that actually knows something about what's going on the United States, the very least the Congress could do is increase the size of the court to 50 justices with the intent of having one justice from each of the 50 states.

On the other hand, perhaps we're just wasting our time with details when what we reallyshould be doing is stripping the Court of everything but its Constitutional powers. After all, the US Constitution grants jurisdiction to the Supreme Court in only a small handful of cases. According to the text:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Constrained to its Constitutional powers, the Court would effectively have no power at all over anything that took place within the boundaries of a single state. Moreover, outside the Supreme Court, the federal court system is totally at the mercy of Congress since the Constitution stipulates that federal courts exist only when "Congress may from time to time ordain and establish" them.

In all of this, however, the important thing to keep in mind is that the Supreme Court does not demand our reverence, our awe, or our respect for its little traditions and institutions.

#RIPUSA Trump's Student Loan Plan Treats the Symptoms, Not the Disease

Image result for cartoon trump student loans

At a campaign stop in Columbus, Ohio, one month before election day, Donald Trump shared his plan for addressing voters’ growing concerns about student loan debt.

Trump’s student loan repayment plan came late in the campaign cycle, long after Senator Bernie Sanders and Secretary Hillary Clinton released their respective plans, both of which would have increased government intervention in higher education, further distorting the already-convoluted education and student loan markets.

At the time of his speech, Trump’s proposal seemed likely to elicit support from voters, especially among millennials concerned about college affordability and rising levels of student loan debt. From 1980–2014, the cost of attending college rose by nearly 260 percent. Total student loan debt is nearing $1.25 trillion, and over 43 percent of former students who borrowed from the federal government are in default, behind on their payments, or aren’t making payments on their federal student loans.

Free market advocates had hoped that Trump’s proposals would constructively tackle the causes of the student loan bubble. Alas, this was not to be. Instead, Trump’s plan bears more similarities to alternative plans released by Obama, Clinton, and Sanders than many conservatives would like to admit.

Called “the most liberal student loan repayment plan since the inception of the federal financial aid program” by The Washington Post, Trump’s proposal would cap repayment at 12.5 percent of a borrower’s discretionary income. Furthermore, a borrower’s remaining student loan balance would be forgiven after he or she makes their full payments for 15 years. While it’s possible that Trump has consideredrestoring the pre-2010 system, in which private banks (instead of the government) issue student loans, such loans would still be subsidized and guaranteed by the federal government, eliminating much of the risk that incentivizes banks to engage in prudent and sustainable lending.

Why College Costs Are So High

Basic economics helps us predict how Trump’s student loan plan would affect the greater economy and the financial welfare of individuals. At any given time, there exists a limited amount of funds available in capital markets. This capital can be directed toward any number of alternative uses (home loans, car loans, business loans, etc.). But government artificially boosts demand for student loans when it intervenes in the market by enabling student borrowers to repay less than the balance of their loan. Moreover, when student loans are subsidized — as they are today — demand is greater (and thus, prices are higher) than they would have been otherwise. This artificial demand for student loans bids capital away from alternative uses, making it more difficult for families and businesses to receive loans for other important purposes.

Moreover, the cost of Trump’s plan to taxpayers would be steep. The federal government (and, by extension, current and future generations of taxpayers) would be responsible for paying the remaining balance of everyone’s student loan debt after their loans are forgiven. Colleges and universities would grow even richer, receiving billions of dollars as wealth is redistributed from America’s taxpayers to its institutions of higher learning.

In the face of increased demand for student loans, unless supply keeps pace with demand, prices will inevitably rise. Millions of students have become burdened with previously unimaginable levels of student loan debt needed to finance schooling that has been made artificially expensive by government intervention.

If Trump had been sincerely concerned about college affordability and the soon-to-burst student loan bubble, his plan would have eliminated the federal student loan system entirely. As Jason Morgan predicted in his recent article for Mises Wire, “Without the artificial demand generated through taxpayer-funded subsidies, universities [would] be forced to lower their tuition prices to meet what students and their families are able and willing to pay. This new reality [would] force higher education institutions to adapt to the needs of students.”

Instead of addressing the underlying cause of the problem (namely, the inflated cost of education resulting from federal education subsidies), Trump’s proposal attempts to mitigate the regrettable effects of government’s intervention into the student loan market by forgiving the debt of millions of working professionals.

While Trump’s proposal might score him political points among millennials saddled with an excessive amount of student loan debt, it certainly doesn’t make good economic sense. We might momentarily feel better if our student loan payments are reduced and our balances are forgiven, but we will all be poorer because of it.

Tuesday, November 29, 2016

#RIPUSA Trump isn't draining the swamp; he's creating a reptile enclosure.Trump's Quiet Pick for Legal Adviser Shows He's Dead Set on Nuking Our Democracy.

When Hillary Clinton lost the Electoral College, most post-mortems faulted Democrats for failing to empathize with the anger and abandonment non-coastal Americans are feeling. But last week, when Donald Trump sucked up to the (previously dishonest, subsequently gem-like) New York Times, flip-flopping six times in an hour-long interview, I wondered whether his backtracking might be causing some of his supporters to feel abandoned. If they are, I empathize with their incipient buyer’s remorse. I imagine they must feel a bit like Bernie Madoff’s investors did, after realizing they’d been conned.

During the campaign, Trump said that he alone understood the plight of the everyday people hurting in this economy. But he didn’t pretend to be one of them. He didn’t hide the fact that he’s a billionaire living in a Manhattan tower and a Palm Beach palace in gold-leaf-and-marble opulence suitable for a shah. Instead, he depicted his wealth as an asset: Only a royal could bring down the monarchy. He offered his gilded grandeur as proof that his attack on the corrupt political system sprang directly from inside knowledge. Only a recovering, self-funded plutocrat who had once greased the palms of pols could drive the whores from the temple of democracy.

Campaign finance reform was the one place Trump connected with me. It was the same spot Bernie Sanders connected with me, though Sanders lacked a sinner’s conversion story. Getting big money out of politics is a prerequisite for fixing almost everything else in our dysfunctional system. That’s my song, and in the primaries, Trump and Sanders sang it loudest.

I wonder how many Trump voters who were attracted by his drain-the-swamp rhetoric noticed his pick last week for White House counsel. Trump could not have announced a more in-your-face betrayal of his promise to clean up Washington than his selection of Donald McGahn. McGahn is anti-matter to Sanders’ matter. He’s like kryptonite to campaign finance reform. He’ll be the chief ethics lawyer charged with telling Trump when there’s a conflict of interest, or the appearance of one, between carrying out his oath of office and jacking up his family’s wealth. When might that be? Don’t hold your breath.

McGahn’s background includes serving as counsel and ethics advisor to former Rep. Tom Delay, who was indicted for conspiring to launder corporate cash into campaign contributions for Delay’s PAC. In 2008, Senate Republican Leader Mitch McConnell, a veteran denigrator of campaign finance reform, urged George W. Bush to appoint McGahn as chair of the Federal Election Commission. With the possible exception of the Supreme Court, no public body has been more responsible for keeping our campaign finance system a cesspool than the FEC under McGahn’s leadership.

McGahn’s FEC ensured that the Court’s rulings for Citizens United and against the McCain-Feingold reforms would gut the regulation of money in politics, paving the way for super PACs and bogus “social welfare” nonprofits like Karl Rove’s Crossroads GPS. When a Washington lawyer called McGahn “one of the most consequential commissioners the FEC’s ever had,” Democratic FEC commissioner Ellen Weintraub commented, “He was consequential like a sledgehammer was consequential. He did his best to undermine the law.” Since his tenure at the FEC, according to Forbes, McGahn worked for the Koch brothers’ Freedom Partners Chambers of Commerce, which “has given grants worth a total of $236 million to right-wing political groups like the Tea Party.” Excellent training for joining the Trump campaign.

A deeper denizen of the Beltway is hard to imagine. Yet this is the Solomon whose portfolio includes telling Trump when he and his family blur the line between the financial interest of the Trump Organization and the national interest of the United States. If you read the jaw-dropping 7,000-word lead story in Sunday’s New York Times, “World of Potential Conflict for a Developer President: Many Trump Partners Have Ties to Foreign Governments as Work Spans the Globe,” you know how thick Trump’s business ties are to the governments of the Philippines, Brazil, India, Turkey, Ireland and Scotland, to name a few. If a U.S. foreign policy decision appears to favor a Trump commercial project, it’s McGhan’s job to blow the whistle on the president. And if you think that’s going to happen, I’ve got a golf course with a nice view of a wind farm that I’d like to sell you.

Eight out of 10 Americans say, “the influence of money in politics is worse than at any other point in their lifetime, and 70 percent believe our democracy is at risk if we do not take immediate steps to fix the problem.”

Donald Trump tells us he’ll fix that problem. He also tells us he only hires the best people. Donald McGahn is the best person he could find to keep the money in politics that puts our democracy at risk.

#RIPUSA Trump Continues Moonwalking Backwards : Trump’s Ambivalence Towards NATO Could Backfire #KeepTrumpInCheck

 US President-Elect Donald Trump has toned down the anti-NATO rhetoric he employed on the campaign trail, but it remains uncertain whether he appreciates the value of the organization for American interests. NATO provides security insurance not only to Europe but also to the US. Trump should be cautious about weakening its deterrence and power projection.

Trump’s election as the 45th president of the US, seemingly against all odds, raises many questions and uncertainties about the direction of his foreign and domestic policies One issue with wide global implications relates to the attitude of the president-elect regarding the North Atlantic Treaty Organization (NATO).

In March 2016, during the campaign, Trump dropped a bomb regarding his NATO policy. He lambasted the organization, calling it obsolete and expensive. This view seemed to suggest that Trump considered NATO irrelevant.

A few months later, in June 2016, Trump said he does not intend to dismantle NATO or pursue the withdrawal of the US from the organization. Rather, he would require that all allies equally bear the expenses of NATO operations. He also claimed that NATO was not fighting terrorism effectively. In his view, NATO would have to play an important part in the war against Islamic State (IS) to justify its existence.

In July 2016, Trump went further. He said he was not sure if the US would automatically protect NATO allies, adding that the US would only protect NATO members that met their financial obligations.

This position undermines a fundamental principle set out in the NATO Treaty. Article 5, a cornerstone of the treaty, sets forth the obligation of every ally to come to the protection of any NATO ally should it be attacked. Ironically, during the 70 years of NATO's existence, the only time this article was activated was on behalf of the US. This was after the 9/11 attacks, when Washington’s NATO allies joined its “war on terror” against al-Qaeda.

It is certainly true that NATO has a cumbersome bureaucratic structure. It functions on the basis of consensus among member states, a process that slows decision-making. But despite its limitations, NATO is rather proactive.

As an organization, it has managed to adapt to changing circumstances and threats. Following the Soviet Union’s collapse, NATO expanded by integrating new allies, mainly from eastern Europe. It now includes 28 members. It has also created valuable partnerships with countries all over the world, including Israel.

In September 2014, following the Russian invasion and occupation of Ukraine’s Crimean peninsula, NATO decided to take significant measures to deter Moscow from carrying out other aggressive military actions. It reacted in this manner in part because of the deep concern Russia’s actions had stirred among some NATO members, in particular the Baltic states and Poland, which were once part of the Soviet bloc.

NATO also takes part in the fight against terrorism. A counter-terrorist NATO naval force is deployed in the Mediterranean Sea; NATO states participate in the war against IS in Syria and Iraq; and NATO takes measures to protect its member states against cyber-attacks (with an eye on Russia, which makes extensive use of this kind of warfare). The alliance has also set up an anti-ballistic missile defense system dedicated to the protection of member states from an attack by rogue states (although Russia claims that the system is directed against it).

A few days ago, Trump told NATO Secretary General Jens Stoltenberg that the organization is of enduring importance to the US, and that Washington will remain committed to Europe’s security. While this message demonstrates that Trump understands the need to reassure America's allies, worries remain about his attitude vis-à-vis Russia.

During the election campaign, Trump’s negative declarations concerning NATO stood out in stark contrast to his comments about Russia, which revealed a rather curious appreciation for that country. Trump claimed that Russia had not crossed any NATO red lines, an assertion that ignored numerous provocative acts by Russia.

Those acts include jetfighter incursions near or into NATO members’ airspace, including that of Britain, Sweden, and Norway. Russian leader Vladimir Putin has demanded not only that NATO withdraw its forces from the countries bordering Russia, but that it be dismantled completely.

Putin has maintained a consistent policy designed to increase Russia’s global influence at the expense of the US and the West. Trump’s words regarding NATO seem to further Russian rather than American interests.

Trump’s ambiguous declarations about NATO, especially about Article 5, are perilous. Regardless of any future action, the statements themselves create uncertainty that can undermine NATO's deterrence. In the long run, that uncertainty might encourage Russia to challenge the US by attacking one of the Baltic states. If such an attack were to take place, Washington could find itself entangled in a war with Russia.

One can only hope that upon closer examination, Trump will find NATO to be an asset to the US, an essential organization that has significant deterrence power vis-à-vis Russia and Iran. This is one of the central reasons why the US has been the main contributor to NATO’s budget. In addition, US commercial interests benefit from defense industry sales to NATO and to NATO allies.

It is arguable that NATO might benefit from a more critical and demanding American approach, which could lead it to reduce its bureaucracy and become more efficient. Such an approach might also encourage the European member states to become more engaged and allocate more finances to their own defense budgets as well as to NATO’s operations and activities. It might even boost NATO’s efforts to conduct a constructive dialogue with Russia in order to limit the risk of incidents – an objective expressed by NATO itself following the July 2016 Warsaw Summit.

Nevertheless, Trump's administration should be careful not to weaken NATO's deterrence and power projection. Hopefully, Trump will discover that NATO acts as security insurance not only for Europe but also for the US, and therefore serves America’s broader global interests.

Wednesday, November 23, 2016

Trump Presidency showmanship via the bully pulpit of Twitter #RIPUSA,#americaHangsItsHeadInshame,$KeepTrumpInCheck

© Getty Images

Donald Trump has successfully sold himself as a businessman, an entertainer and a president. Now he’s ready to market his 2017 agenda.

The president-elect is signaling he’ll use Twitter, large rallies and a sharp tongue — the same weapons that won him the election — to advance his presidency.

Trump already has millions of social media followers and an ability to dominate the media.

Starting on Jan. 20, he will be in control of the most powerful force in politics: the presidential bully pulpit.

With a Republican-controlled House and Senate, the president-elect has an enormous opportunity to pass a slew of legislation that would could both shape Trump's legacy and torpedo at least some of what President Obama accomplished during his eight years in office.

Some Democrats believe that Trump will fail as commander in chief in spectacular fashion, which would of course help them in the 2018 and 2020 elections. But many Democrats don't grasp the potential power of Trump's White House messaging operation and what they are up against.

Republicans, for their part, are salivating at what could come next.

Many think Trump will be able to steam roll his agenda through Congress given GOP control of both chambers and the insecurity of Democratic senators up for reelection in 2018 in states won by Trump.

These members include Sens. Claire McCaskill (Mo.), Joe Donnelly (Ind.), Jon Tester (Mont.), Heidi Heitkamp (N.D.) and Joe Manchin (W.Va.). Trump won Missouri, Indiana and Montana by about 20 percentage points each. He captured North Dakota by more than 36 points and West Virginia by a margin of 42 points.

The real estate mogul, despite never having run for office, eviscerated his political rivals by portraying them as weak and beholden to Washington's “corrupt” ways.

He gave his 2016 challengers nicknames, such as “low energy” Jeb Bush, “lying” Ted Cruz and “crooked” Hillary Clinton.

Lawmakers, most notably Democratic leaders in Congress who get in Trump's way, could get their own nicknames.

If other red-state Democrats buck his nominees and/or his agenda, don't be surprised to see Trump visit their states to drive home his points. The president-elect loves rallies, and it's a good bet that he will be traveling outside the Beltway a lot.

There are already signs that Democrats could have trouble in holding a united front against Trump’s agenda.

Manchin, for example, was the first Democratic senator to back Sen. Jeff Sessions (R-Ala.), Trump's nominee for attorney general.

It’s not just Democrats who have to worry.

Trump showed he isn't shy in going after members of his own party throughout the 2016 presidential cycle. And that probably won't change in 2017 and 2018.

The conservative-leaning House Freedom Caucus and outside right-wing groups are wary of Trump's $1 trillion infrastructure proposal and want the 45th president to focus on reducing the nation's record debt levels. The Freedom Caucus was instrumental in pushing former Speaker John Boehner (R-Ohio) out the door, but picking a fight with Trump is another thing entirely. Most Republicans in the House don't worry about their November election — they worry about their primaries. And crossing Trump could risk a challenge from the right in the 2018 cycle.

Speaker Paul Ryan (R-Wis.) and Trump feuded in 2016, but in the name of party unity and policy, they have put aside their differences. And in a related development, Ryan's approval rating just hit an all-time high earlier this month.

After the election, Ryan said it's time for the Republican Party to “go big” and “bold.” Trump wouldn't have it any other way, though there are inherent risks with an aggressive strategy without a supermajority in the Senate.

Republicans who publicly ripped Trump are now getting in line, so muscling big-ticket items through the upper chamber using budget reconciliation shouldn't be that challenging. Those bills, such as ObamaCare repeal, would only need 51 Senate votes to pass. But replacing ObamaCare, building a wall along the southern border and clearing a Supreme Court nominee will necessitate 60 votes.

That’s where Trump's bully pulpit will come in, calling out Democrats from both red and purple states that he won on Election Day.

While Trump may not be up to speed on the nuances of the legislative process, those mechanics will be handled by Senate Majority Leader Mitch McConnell (R-Ky.) and Ryan.

Still, the fate of pending bills isn't decided by tactics. It comes down to marketing and political muscle, which play to Trump's strengths.

Trump will surely have a slew of critics of anything he wants to do. They will throw everything they have to kill his agenda.

Trump's likely response: “This bill will help make America great again. It should be passed as soon as possible.”

Democrats will need to step up their messaging game to thwart Trump's agenda. Sen. Charles Schumer (D-N.Y.), who will be minority leader next year, had pledged to work with Trump on areas of common ground. He has also vowed to battle Trump when warranted, most notably on attempts to eradicate Obama's legacy laws.

Since the election, Schumer has called for Democrats to craft “a bold economic platform,” a clear acknowledgement that Clinton's muddled message was no match for Trump's “Make American Great Again.”

Donald Trump continues to back track on campaign promises #RIPUSA, $AmericaHangsItsHead Inshame,#KeepTrumpInCheck

Donald Trump meets with the “failing” New York Times, takes back much of what he campaigned on Donald Trump meets on the record with the Times and leaves everyone wondering, What does he actually stand for?

Onlookers watch as President-elect Donald Trump shakes hands with a security guard as he leaves the New York Times building following a meeting, Tuesday, Nov. 22, 2016, in New York. (AP Photo/Mark Lennihan)(Credit: AP)

While the heads of broadcast news and cable news networks agreed to meet on Monday with President-elect Donald Trump off the record at his New York high-rise, The New York Times did not. Yet on Tuesday the newspaper that Trump had often maligned was still granted a sit-down interview with him on Tuesday — after he first tweeted otherwise! — that was on the record and quite revealing, according to many of the reporters in the room who live tweeted the event.
And Times staffers also tweeted what Trump had to say about climate change:
Yet Trump’s own past tweets on the matter of climate change have taken quite a different tone:
And here’s what Trump himself had to say about The New York Times on Tuesday:
Yet he has said the following about the Times — as recently as early Tuesday morning:
Here’s what Trump said about President Barack Obama during his Tuesday meeting at the Times:
But Trump has in the past has tweeted this about Obama’s birth certificate:
Trump said the following on Tuesday about his adviser Steve Bannon, who has served as an executive of Breitbart: 
Trump said this on Tuesday about Hillary Clinton, according to Times staffers: 
But keep in mind just a little more than a month ago Trump tweeted the following about Clinton:
Sophia Tesfaye
Sophia Tesfaye is Salon's Deputy Politics Editor and biggest Golden State Warriors fan in Brooklyn. You can find her on Twitter at @SophiaTesfaye.