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Can Blue States Check Trump?

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WASHINGTON, DC - MARCH 04: Attorney General Eric Holder delivers remarks about the Justice Department's findings related to two investigations in Ferguson, Missouri, at the Robert F. Kennedy Department of Justice Building March 4, 2015 in Washington, DC. Holder delivered the remarks for an audience of department employees who worked on the investigations after a white police officer shot and killed an unarmed black teenager, sparking weeks of demonstrations and violent clashes. (Photo by Chip Somodevilla/Getty Images)

I have some thoughts about California hiring Eric Holder to represent its legal interests. Obviously, Mitch McConnell’s blockade make legal challenges less likely to succeed, but in many cases they’ll be worth doing anyway:

This judicial context underscores the importance of a story that was not mentioned enough during the presidential campaign: McConnell’s unprecedented success in keeping Antonin Scalia’s vacated Supreme Court seat open for Trump, even though Scalia died nearly a full year before Obama was set to leave office. Obama’s nominee, Merrick Garland, is hardly a liberal dream appointment, but had the norms of most of American history prevailed and Garland been confirmed as the median vote on the Court, the judiciary would be a much more substantial check on potential constitutional overreach by Trump. Trump replacing Scalia won’t immediately transform the Court—Kennedy, in that case, would remain the median—but if Trump can replace Kennedy, Ruth Bader Ginsburg, or Stephen Breyer, the Court would be more Trump’s active collaborator than skeptical check.

It’s not just the Supreme Court, either. McConnell also shut down circuit court appointments after taking over as Senate majority leader in 2015, and partially as a result, Trump will inherit more than 100 federal judicial vacancies that he is likely to fill aggressively with reliable conservatives. So while federal appellate courts now, at long last, have a liberal tilt, this is likely to change quickly. Those challenging Trump may find it difficult to find a sympathetic judicial audience.

Does this mean that challenges are therefore futile? Absolutely not. Challenges to Trump by blue states still present real opportunities.

First of all, judges aren’t legislators. While judicial votes in politically salient cases are fairly predictable, they’re not perfectly so. Several very conservative judges—including, most consequentially, Chief Justice John Roberts of the Supreme Court—ultimately rejected the argument that the Affordable Care Act was unconstitutional in its entirety. And this can cut the other way. It’s possible that Trump might overreach in ways that even otherwise conservative judges find intolerable. Anthony Kennedy, one of the last genteel moderate Republicans left standing, might not be strongly inclined to uphold Trump’s envelope-pushing.

In addition, legal challenges might have political effects even if they aren’t ultimately successful. The political effects of the challenges to the ACA cannot be precisely determined. But it seems likely that the constant drumbeat of high-profile legal challenges to Obama’s signature domestic initiative was a contributing factor in making “Obamacare” unpopular, even though—as Republicans are finding out to their political chagrin—most of its individual provisions are popular. Legal challenges by states like California can contribute to the justified perception that Trump, an instantly unpopular president who decisively lost the popular vote despite the FBI and very possibly Russia intervening against his opponent, is not a legitimate occupant of the White House even if he’s legally entitled to it.

The overriding goal of the Democratic Party in the next four years must be to make Trump as unpopular as possible. The less popular he is, the more likely that his legislative initiatives fail and the harder it will be for Republicans at all levels to win elections. Legal challenges can contribute to this effort. And there’s the additional potential for a virtuous circle here. The greater the perception of Trump’s illegitimacy, the more likely the courts are to give a fair hearing to challenges against him.

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  • DamnYankees

    Bush administration?

    • Nobdy

      Telling typo or a clever way of saying “meet the new boss same as the old boss”

  • Murc

    Trump replacing Scalia won’t immediately transform the Court

    Scott, you seem to take it as a foregone conclusion Trump will replace Scalia. Which way do you see that happening; the Republicans actually nuking the filibuster, or treason from eight or nine Democrats?

    • DamnYankees

      The GOP will absolutely nuke the filibuster on the USSC. They’d be crazy – and frankly wrong – not to.

      • Murc

        They’ve already announced they don’t plan to, though, which means we can hold the seat open until 2018 at least.

        I mean. They might be lying. We’ll find out in a couple weeks. But if they’re not lying, then they’ll require traitor Democrats.

        (I don’t think they’ll try to abolish it out-of-order in the middle of the session, because if they do that they need to answer to the howling mob about why they can’t do the same thing to repeal the ACA in its entirety.)

        • DamnYankees

          They’ve already announced they don’t plan to, though, which means we can hold the seat open until 2018 at least.

          They did? When? I must have missed this.

          Either way, I don’t buy it. I think its just for cover; they’ll do it after the Dems filibuster.

          (I don’t think they’ll try to abolish it out-of-order in the middle of the session, because if they do that they need to answer to the howling mob about why they can’t do the same thing to repeal the ACA in its entirety.)

          I think you’re way overestimating how much people care about this procedural stuff.

          • Murc

            They did? When? I must have missed this.

            Nearly a month ago? Haven’t you noticed that in all the talk about ACA repeal, a lot of it revolves around the Republicans needing to use reconciliation?

            I think you’re way overestimating how much people care about this procedural stuff.

            I think the teahadis care about nuking the ACA, and if the Republicans use a tool to install a fascist on the Supreme Court but don’t use the same tool to restore our freedom to die, they’re gonna want to know why not.

        • humanoid.panda

          They’ve already announced they don’t plan to, though, which means we can hold the seat open until 2018 at least.

          They’ve announced they won’t blow up the legislative filibuster (which is in their interest: last thing they want is to have to pass every insane thing the House floats). They didn’t say anything about SCOTUS.

      • Just_Dropping_By

        I thought the rule change to eliminate the filibuster via majority vote was supposed to take place at the beginning of a senate session and that changing it later would itself require a filibuster-proof majority? And isn’t the new session already underway?

        • DamnYankees

          You can change the rule at any time. That’s what the “nuclear option” is.

          • Michael Cain

            Well, you can establish a precedent that provides an exception to the rules at any point, by majority vote. The Senate has some thousands of active precedents in addition to the rules proper. One of the hard parts of the Senate Parliamentarian’s job is keeping track of the precedents.

            The Senate rules still say that you need 60 votes for cloture. But there’s a precedent — may have been written down, may not have been, I don’t recall, but it was voted on — that says that rule doesn’t apply to appointments other than SCOTUS.

    • Scott Lemieux

      They’ll nuke the filibuster on Supreme Court nominations. Given that it’s gone for all other judicial appointments, and that they would have done it for Alito if necessary, it won’t be a heavy lift.

      • Murc

        Gotcha.

  • The overriding goal of the Democratic Party in the next four years must be to make Trump as unpopular as possible. The less popular he is, the more likely that his legislative initiatives fail and the harder it will be for Republicans at all levels to win elections.

    Me thinks that Trump is going to do this all on his own. What the Dems need to do is stay out of the way and not be seen as complicit, which will be admittedly hard to do with Chuck ‘Deal Maker’ Schumer leading them in the Senate.

    • Brad Nailer

      What Schumer has on his side is that most of the legislation the Republicans will produce will be pernicious and therefore relatively easy to fight against–obstruct, even, to the extent that’s possible. They also need to make sure the public knows what each side is up to, and which party has the public’s interest in mind.

      Easier said than done, I know. And “relatively easy” is definitely a loaded term in this respect.

      • Nick never Nick

        Since all of that was true for the election as well and even more plainly clear then than it is today, I take this comment to indicate that Schumer has nothing on his side whatsoever.

    • It will not be enough simply to discredit Trump. He will do this on his own. His enablers in the institutional Republican Party have to go down with him. It would not be a win having President Kasich or Pence in 2020.

  • Mark Field

    I’m pretty pessimistic about the actual results of a legal strategy. Any policy that has the backing of the R establishment (Ryan, McConnell, etc.) is likely to be upheld by the Court. I’m guessing the Court will see the election results (not the votes, the results) as license to go much further than it did while Obama was President.

    It might strike down some of Trump’s wackier notions, but even that might be true only as long as Ginsburg and Breyer live. Short term, yes, a legal strategy can have some success. Long run, no, because nobody actually believes in states rights.

    That doesn’t mean I oppose filing suit. Suing is a good idea to the extent it puts persuasive ideas before the public (assuming the media deigns to report them). But the Court isn’t going to rescue us.

    • Joe_JP

      I think there will be certain policies, at least along the margins, where there is (for now) five votes to stop. It was true during each of the last administrations, even when Republicans supported the policy. See, e.g., the Texas abortion law that Kennedy felt was a step too far.

  • Nick never Nick

    No.

    The blue states care about government; Trump doesn’t, he likes conflict, drama, and dominance games. Trump can create an infinite amount of these all by himself; sure, the blue states can do this or that on the margin to keep things better, but the conflict is going to still be there. This question is kind of like asking “Can Mommy make the family OK if Daddy is a raging violent alcoholic?” She can’t, but she can cook meals for the kids and things would be worse if she didn’t.

    • q-tip

      I really like the family metaphor. Captures the frustration of being the responsible member of a dysfunctional relationship. I think it applies well to the current relationship between our parties. It also reminds us of the literal examples of Trump-esque individuals taking their frustrations out on vulnerable groups: women, POC, the list goes on.

      Still, isn’t keeping the lights on and making sure the kids are fed a KIND of checking Bad Dad’s worst impulses? Knock wood, the kids might even figure out which parent’s on their side.

      • Nick never Nick

        Yeah, I can see that, I guess it depends on whether you are a hey-at-least-we-had-a-glass-once or a now-the-glass-is-shattered-and-all-over-the-floor sort of person.

        • q-tip

          True dat. There’s a quote – I think it might be by Nathaniel Mackey, or maybe he just cited it – saying something like “the vessel that is broken and repaired holds water better than the vessel that was never broken.”

          (Correct my faulty memory, y’all.)

          Can we repair the vessel, though? Can we pick up the shattered glass and put it back together – or should we find a new glass? What would the new glass look like, and how can we protect it from being broken again?

          Myself, I don’t play around when there’s a chance I might cut my lip :).

          • los

            broken and repaired holds water better than the vessel that was never broken

            and repairman obama will be blamed for doing the breaking.

            Which method will mother nature use to reduce the % of magas that plague the species?
            civil war?
            or world war?

    • CP

      “Can Mommy make the family OK if Daddy is a raging violent alcoholic?”

      This is one of the metaphors for America that I’ve thought of for ages. We’re basically in an abusive relationship that we can’t leave for the sake of the children.

      • los

        and nearly half of the children are insanely masochistic and vigorously pursuing national suicide-murder.

    • mpowell

      This is an apt metaphor and the main reason I think the Democrats have to be careful about disregarding principles regarding the rule of law to obtain and exercise power even if the Republican party generally does not. Which is why I would not support a ’66 Senators with Democratic majority appoint Obama’s nomination to SCOTUS magically between classes’ move even if it might somehow work.

  • Latverian Diplomat

    While the Democrats should no doubt aim to stoke the fires of Trump’s unpopularity, the idea that it depends on his legislative initiatives “failing” seems wrong because

    a) Trump has no coherent legislative agenda
    b) Anything he does pass is as likely to damage his popularity as anything that fails to pass
    c) He will lie his ass off about what ideas were his, what worked or didn’t work, and why
    d) His base will happily believe everything he says about c)

    • mpowell

      It’s not his base that matters but the 2% of voters you need to swing back in Penn/Mich/Wisc and ideally another 5% nationwide to win back the Senate. It can be very confusing to identify the subtle differences between these groups.

      • los

        2% of voters you need to swing back in Penn/Mich/Wisc

        All three will still be imprisoned in GOP election crime. And McTurtle/Bannon courts will allow more crime.

        And does Kansas suggest how bad it gets before voter revolt? (still none)

  • Rachel Q

    As a political move, I think it’s brilliant.

    However, I think the blue states will need to rely mainly on their own legislation to blunt the effects of the destruction to come.

    • Nick never Nick

      And maybe it’s time to take federalism seriously — let the Blue states model the legislation that they would like to propose for the nation; stop worrying about ‘national’ anything, and get good programs that work at the state level. If scale is a problem, let multiple states work together.

      Canadian health care began in Saskatchewan, after all . . .

      • The Lorax

        Yep. As a Californian, I indeed suddenly like federalism. California Uber Allies! (Even the governor in the song fits.)

        • TopsyJane

          As a Californian, I suddenly like secession.

          • los

            though as Nick never Nick says:

            If scale is a problem, let multiple states work together.

            Which
            1. leaves some free enclaves[1] (CO, NM, IL with lake access but hopefully with MI as part of the free States) trapped… to which the free states would have to deliver with escorts… partly like Merchant Marine during WW2 and partially like Berlin airlift after WW2.

            2. leaves the hijacked states – PA, WI, FL, OH, NC – under increasing subjugation of current antagonistic regimes.

            3. leaves the slave states forced to negotiate with Mexico or Canada for Pacific Ocean access.

            4. leaves the slave states with some nukes. (and recall Ft Sumter)

            5. leaves the warloving-by-nature slave states “hurtling” toward declaring war on a politically incorrect neighboring nations. (recall Fugitive Slave laws)

            _______
            1. AR, LA are blue? https://en.wikipedia.org/wiki/Political_party_strength_in_U.S._states#Demographics
            But scroll down. Civil War averted, if Bannon/Putin/Trump can’t avoid redoing Nixon.

    • Michael Cain

      Yeah, I would start with the question “Can the blue cities/states protect themselves?” before worrying about whether the blue cities/states can protect everyone. I wonder whether Trump would sign a bill that revoked California’s permission to have air pollution standards more stringent than the federal standards?

      • los

        the effects of air pollution is infamously worst in red areas.

  • Joe_JP

    Merrick Garland, is hardly a liberal dream appointment,

    This sort of weak sauce support helped doom him, noting even a stronger opposition very well might not have been enough. Garland would have voted like the liberals most of the time. SCALIA was being replaced. Tell me in 2015 that SCALIA would be replaced by Breyer II, even by a boring older (about the age RBG was when she was confirmed)white guy who would in criminal cases vote at times how I didn’t like, you would have to pinch me to check to see if I’m dreaming.

    “Dream appointments” don’t really happen too often. Kagan and even (by some) Sotomayor got grumblings. Yes, I’m tired of all of the belittling of Garland.

    • jamesepowell

      There is and likely always will be a body of opinion that believes that Obama could have gotten the 21st century version of William J Brennan on the court but he didn’t. even. try.

    • Murc

      This sort of weak sauce support helped doom him

      No, it didn’t. Garland was always doomed. There is, literally, nothing anybody could have done to get him confirmed.

      • Just_Dropping_By

        Well, in hindsight, Obama could have tried offering that he’d publicly endorse a constitutional amendment for Supreme Court term limits in exchange for Republicans approving Garland. If he’d done that in June or July, I think Republican congressional leadership might have taken that deal.

        • Murc

          … no, they wouldn’t have, because they’re not idiots. That would be a terrible deal for them.

      • Joe_JP

        Something always doomed could still be “helped” by something, noting I already said it very well could have been a lost cause anyway. This level of absolutism (noting “literally” is used somewhat weakly these days) to me is often unnecessary and exaggerated. For one thing, 90% of a chance is good enough. Anyway, “confirmed” isn’t the only thing. Even something less (a vote, hearings, more of a protest etc.) would have been notable.

  • jamesepowell

    This is not so easy to answer.

    Are Wisconsin, Michigan, and Pennsylvania still considered Blue States?

    • Linnaeus

      Maybe somewhere in a range of a shade of blue to purple-blue. I wouldn’t call any of them red at this point.

    • UserGoogol

      For the purposes of this, the most immediately relevant factor would seem to be control of the Attorney General’s office, where Democrats seem to be doing better than other branches of state government. Although I have no particular idea how much independence such bodies have on a state by state basis, and I’m sure there’s all sorts of caveats you could consier. (But to answer your question, WI and MI have Republican Attorneys General, while PA has a Dem.)

    • los

      jamesepowell says:

      Are Wisconsin, Michigan, and Pennsylvania still considered Blue States?

      As I’ve read, the voters (or potential voters) in all three are blue-purple or blue.
      Conservatives have hijacked all three.

      OH, NC, and Fl are closer to purple, as I recall.

  • The Temporary Name

    What do we figger the overlap of “reliable conservatives” is with “cronies”? This could all be way more bonkers.

  • Denverite

    Congrats on the new job at SUNY Albany! Condolences on not being able to land a job that required a move from godforsaken upstate NY.

    • Murc

      Hey, we’re not god forsaken. He pays attention to us regularly. You can’t tell me that Carl Paladino isn’t some kind of punishment for our sins.

    • Linnaeus

      The parts of upstate New York that I’ve been to seemed rather nicer than “godforsaken”. Maybe I just went to the right places.

      • Murc

        We’re deceptive.

        The country up here can be stunningly beautiful (as long as there are either leaves on the trees or snow on the ground) but the thing is unless you’re outdoorsy there isn’t very much to do, and even if you are outdoorsy you have to deal with the fact that winter lasts like five months.

        Before climate change that was okay because you could do winter stuff, but the past decade or so in many if not most parts of upstate snow has a hard time sticking. People around here used to own snowmobiles; not so much these days. So you get five months where its is cold and dark, but not so cold and dark you can sled or ski or anything.

        Outside the major cities, it can also be ominous and depressing. Upstate has fared better than some parts of the country, but the post-postwar economy hasn’t been kind to us; farming is and hopefully always will be a huge thing, but the light industry that used to support all those farmers sort of all withered up and died. You can find, say, an agricultural equipment distributer, but not an agricultural equipment manufacturer.

        There are large parts of upstate where you drive through it and look around and you know you’re within 500 yards of a meth lab.

        It isn’t like the place is a total hellhole, but it is kinda blah. It’s like… you’d better REALLY like either the rural lifestyle or the suburban one.

  • sleepyirv

    My concern is conservative courts will rule against blue states substantively, but not procedurally. Leaving opportunities open in the future for red states to file frivolous lawsuits again when a Dem retakes the White House.

    It’s absurd states can hogtie the federal government through the court system when they have no particular interest in the case besides “not liking the federal government policy.” And while it’s obvious Democrats would try to use it after the recent Texas anti-miracle, I don’t think it’s any way to run a country to let random district judges decide they should be in charge of everything.

  • Should we not distinguish between offense and defence? There is little hope of reversing changes in federal law and policy under Trump, though delay may be achievable. The more realistic objective is to stop Trump from forcing deregulation on blue states against their will, as with coal tribunals, pollution regulations, and state emissions standards.

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