Biden in Hawaii.

August 21, 2023

          President Biden will travel to Hawaii on Monday to observe recovery and relief efforts, and to offer his condolence to the people of Hawaii. It is an appropriate visit for an American president that is taking place at an appropriate time when there is no “good” time to visit. It is inevitable that some survivors who are still searching for family members among ashes and rubble will resent the intrusion of cameras, lights, and secret service agents that follow the president like a swarm.

          Every response by a president to a disaster will always be subject to criticism and second-guessing. But for inexplicable reasons, the media seems primed to assume that Biden can do nothing right in his response to the tragedy in Hawaii. Without asserting that the federal response has been perfect, state officials have praised the federal response for its speed and scope. But the Washington Post has picked at Biden’s response, even as it wrote glowingly of the federal efforts. Per WaPo,

Indeed, the federal response effort has been substantial and multifaceted, with FEMA joining agencies including the Defense Department, the Department of Health and Human Services and the Small Business Administration to deliver aid to locals. By Saturday, more than 1,000 federal personnel were on the ground, and the rush of federal aid included thousands of blankets and cots, more than 50,000 meals and cash payments of $700.

With a large military population stationed in Hawaii, the Pentagon dispatched helicopters to fight the blazes, deployed Coast Guard vessels to rescue residents who rushed into the ocean fleeing flames and sent hundreds of troops to move debris from roads. Cadaver dogs trained to search for bodies have accompanied military specialists in remains identification to search through the ash and rubble.

          Against that fulsome federal response, the Post points to a single (alleged) failure by Biden:

“No comment,” Biden responded Aug. 13 when asked, while he vacationed in Rehoboth Beach, Del., if there was anything he wished to say about the rising death toll in the destroyed town of Lahaina. More than 100 people have now been confirmed dead in the fires and hundreds more remain missing.

          What the Post—and hundreds of other media outlets fail to acknowledge—is that President Biden had already commented earlier in the day, and earlier in the week, and the day after, and the day after that. The alleged “No comment,” is based in part on “lip reading” because the only audible response on videotape (at 4:33) is, “No.” Moreover, the five-second interchange came as reporters shouted questions at the president as he was entering an SUV.

          Would it have been better for Biden to offer another comment to the shouted questions that followed him on every stop of his day of vacation? Sure. Or he could have simply ignored the reporters and got in the SUV. But to turn this momentary interchange into a broadside indictment of Biden for “lacking empathy” makes sense only if you ignore sixty years of public life in which Biden has demonstrated time and again that he feels the pain of Americans in a way that few presidents have. This story is “gotcha” journalism at its most shameful.

          The real story is that the people of Hawaii are suffering in a unique way that is exacerbated by a deadly combination of factors unmatched in American history—including climate, extreme weather, lack of response by utilities, land management, lack of preparation by local and state governments, and more. The people of Hawaii deserve the full support of the federal government and all Americans. They appear to be getting that support (at least for now). Trying to turn the federal disaster response into a partisan feud does a disservice to survivors who understandably want the full attention of the federal government focused on the need for recovery and relief.

Do not give in to despair about the Supreme Court.

          Readers of this newsletter know that I am a major critic of the US Supreme Court. I was interested to see the opinion of one of my favorite Court observers (Ian Millhiser) argue that “all is not lost.” See Ian Millhiser, Vox, The case for optimism about the Supreme Court’s Republican supermajority.

          After reviewing a few of the surprise decisions by the Court over the last term, Millhiser writes as follows:

If you are angry at the Supreme Court, you are right to be angry. Many of this Court’s decisions are completely lawless — such as the Court’s recent decision in Biden v. Nebraska (2023), which ignored a federal law that unambiguously authorized Biden’s student loan forgiveness program. They demand anger. And that anger isn’t just righteous, it is useful.

But I also want to counsel against despair — that is, I want to counsel against the absence of hope.

The Court’s GOP-appointed majority is starting to draw some fences around the conservative legal project. The Court appears unwilling to attack entrenched parts of the American welfare state. It smacked down a Trump judge who attempted to ban the abortion drug mifepristone. It has rejected legal arguments that would devastate the US economy or threaten its national security.

And, most importantly, the Court is now signaling that it may preserve America’s ability to hold free and fair elections (or, at least, to hold elections that are as free and fair as possible in a nation with an Electoral College and a malapportioned Senate).

          Millhiser takes a deep dive into the decisions that should help you recover some sense of hope that there are limits to the Court’s long, painful slide into the past. Check out Millhiser’s article.

A great summary of Biden’s accomplishments by Jessica Craven of Chop Wood Carry Water.

          Jessica Craven of Chop Wood, Carry Water has posted a TikTok video (also available on YouTube) that does a great job of summarizing Biden’s accomplishments in the energy sector and the job market due to the Inflation Reduction Act. See Jessica Craven on YouTube, Great great news about jobs and green energy in the US!

          The video is worth two minutes and thirty seconds of your time. I guarantee that you will be informed, enthused, and entertained! Check it out!

Disqualifying Trump under Section 3 of the 14th Amendment.

          Last week, I criticized a scholarly article by two law school professors (William Baude and Michael Paulsen) who contend that state election officials can unilaterally disqualify Trump from ballots based on their independent “duty” to enforce Section 3 of the 14th Amendment. Section 3 provides that no person may hold federal office if—after having taken an oath to uphold the Constitution—they

shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

          After I wrote my piece last week (which is here: The only path forward . . . . - by Robert B. Hubbell (substack.com)), Professor Laurence Tribe and retired federal court of appeals Judge Michael Luttig published an article in The Atlantic that praised and endorsed the article by Baude and Paulsen. The article by Professor Tribe and Judge Luttig is here: The Constitution Prohibits Trump From Ever Being President Again. (The article should be accessible to all.)

          While Professor Tribe and Judge Luttig agree with Baude and Paulsen, they admit a practical consideration that is not front and center in the article by Baude and Paulsen, who emphasize unilateral action by state officials unbounded by due process and the First Amendment. Professor Tribe and Judge Luttig write,

As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer.

          Dozens of readers sent me copies of the article in The Atlantic and asked me to comment on (read: dispute) the legal analysis by Professor Tribe and Judge Luttig.

          Come on, people! I am not that stupid! You will not bait me into disagreeing with Professor Tribe and Judge Luttig on legal matters.

          Instead, I will change the terms of the debate.

          I believe that attempting to enforce Section 3’s disqualification clause by urging state officials to unilaterally and variously block Trump from the ballot (or not) is a bad idea from a political standpoint.

          Why?

          I believe there is no scenario in which Trump will be disqualified from enough state ballots to preemptively determine the outcome of the election in the electoral college. The most likely result is that Trump will be disqualified in a few deep blue states that he has no chance of winning in any event. But if he thereafter loses an election in which he has been barred from the ballot in a handful of states controlled by Democrats, tens of millions of Americans will believe that the election result is illegitimate. Without agreeing that Republicans would be correct in their view of the illegitimacy of the election, a reasonable observer should be able to see why Trump supporters would feel aggrieved in that scenario.

          After the bruising attack on the legitimacy of the 2020 election, inviting disputes over the 2024 election based on a contested legal theory does not seem to be the best political path forward.

          As before, I remind readers that I believe Trump engaged in insurrection and should be disqualified from holding the office of president and that Section 3 is still operative today. But as much as I believe those premises, we must recognize they are not shared by tens of millions of Americans. Setting aside the legal analysis about whether Trump engaged in insurrection, let’s examine whether there is a solid footing for a political consensus on that point such that unilateral enforcement of Section 3 would not damage the legitimacy of the 2024 election. I won’t bury the lead: I do not believe that such a political consensus exists.

          Let’s begin by recognizing that, as applied to Trump, Section 3 includes two elements that must be satisfied: (1) That the events of January 6th constitute a rebellion or insurrection, and (2) that Trump “engaged” in that rebellion/insurrection or gave “aid or comfort to the enemies” of the United States.

          Those who oppose the disqualification bar would say that the question of whether Trump has engaged in insurrection has been answered in the negative by Congress and the DOJ, for the following reasons:

          The Senate acquitted Trump in his second impeachment of the charge of “incitement to insurrection.” In so doing, the Senate refused to apply the very remedy that proponents of the Section 3 bar would nonetheless apply.

          The January 6th Committee recommended that the DOJ indict Trump for engaging in insurrection or rebellion in violation of 18 U.S. Code § 2383 (Rebellion or insurrection). See also DOJ Referrals | Jan-6.com.

          Although the DOJ did indict Trump on other grounds recommended by the January 6th Committee, it has not indicted Trump for “rebellion or insurrection” under Section 2383, as recommended by the J6 Committee. A reasonable observer should be able to see why Trump supporters would feel that the DOJ’s apparent decision not to charge Trump with “rebellion or insurrection” means that—in the view of the DOJ— January 6th was not an insurrection and Trump is not guilty of having engaged in insurrection on January 6th.

          Indeed, the DOJ has not indicted anyone for “rebellion or insurrection” under Section 2383. True, some defendants have been indicted and convicted for “seditious conspiracy” under Section 18 USC § 2384, which legal commentators would rightly note is effectively “the same thing” as planning an “insurrection or rebellion.” Fair point. But the DOJ has not indicted Trump for seditious conspiracy. As before, a reasonable observer should be able to see why Trump supporters would feel that the DOJ’s apparent decision not to charge any defendants (including Trump) with “rebellion or insurrection” means that—in the view of the DOJ— January 6th was neither.

          Against that backdrop, arguing that state election officials should nonetheless unilaterally conclude—as a matter of constitutional certainty—that Trump engaged in rebellion or insurrection on January 6th is a proposition ripe with the potential for political strife.

          And we haven’t even begun to discuss the impracticalities of urging secretaries of state to bar Trump from the 2024 presidential ballot. Republicans hold the secretary of state seat in twenty-six states, including the swing states of Georgia and Pennsylvania. Democrats hold the secretary of state seat in twenty-two states, including the swing states of Arizona, Michigan, Wisconsin, and Nevada.

          We cannot assume that each of the secretaries of state has the authority under state law to determine which candidates appear on the ballot. One reader wrote to the Washington State Secretary of State urging them to bar Trump from the ballot and received this reply:

Political parties submit the candidate names to appear on the Presidential Primary ballot. That’s in RCW 29A.56.031. The Office of Secretary of State has no statutory power to evaluate a candidate’s qualifications for the office, which are set in federal law.

          But let’s assume for argument that the secretaries of state in the four swing states of Arizona, Michigan, Wisconsin, and Nevada bar Trump from the ballot in those states. If that happens, Trump would have no realistic chance of gaining the electoral votes necessary to be elected president.

          The net result is that four individuals holding the office of secretary of state in four states may decide who will serve as our next president.

          Really?!

          Even if that result is ultimately adjudged to be the correct outcome from a legal standpoint, the question remains whether that is what our democracy needs at this contentious moment in our history. I do not believe it is.

          I have done my best to avoid crossing legal swords with Professor Tribe and Judge Luttig. Indeed, I agree with their ultimate legal conclusions. My point is that their view of the law will be rejected by tens of millions of Americans given the actions by Congress and the inaction by the DOJ described above. The law is not a popularity contest (nor should it be)—but political legitimacy is. Given those facts, I believe it would be a political mistake to follow a strategy with a low probability of electoral success and a high probability for undermining the outcome of the 2024 election. As I wrote last week,

          Here is the point: There is only one way to ensure that Trump does not hold the office of the presidency again: We must beat him decisively at the ballot box. I worry that the emotional energy that readers are investing in a contested legal theory is a distraction and a setup for disappointment.

          The argument regarding the “self-enforcing” feature of Section 3 is contested and, in my view, bristling with unintended consequences. Keeping Trump off the ballot is not going to work; and if it does, it will result in retaliatory actions by MAGA secretaries of state. Let’s not go there. Let’s beat Trump at the ballot box. That is the only path forward . . .

          I recognize that many readers will disagree with my views. I have heard from many of you already. I hope that I have convinced you (at least) that the legal theory will be challenged, and that the political fallout will be substantial. If you nonetheless support the effort, that is obviously a legitimate choice with substantial legal support. But, please, let’s recognize the political realities of attempting to enforce Section 3 through state election officials applying their own views about whether Trump engaged in insurrection or rebellion.

Concluding Thoughts.

          Thanks to the many readers who inquired about our status during Tropical Storm Hilary. We are fine. It has been raining steadily for about ten hours, with another five hours to go. So far as we know, there is isolated local flooding near us, but the full damage report may not become apparent until Monday morning. As my wife and I were watching the weather report on Sunday afternoon, we felt strong shaking from the 5.1 magnitude earthquake centered in Ojai, California (about 75 miles from our home in Los Angeles).

          It feels like we have entered a period of transition from which there is no return. Over the last four years, our mountain cabin in the Sierras has been threatened twice by major wildfires and once by unprecedented levels of snow. Tropical Storm Hilary will compound the damage from the snows of 2022-23. And the winter of 2023-24 is predicted to bring heavy precipitation because of cyclic warming in the Pacific (the El Nino phenomenon).

          Of course, it is possible that the confluence of extreme weather is a random phenomenon. Let’s hope it is. But either way, the extreme weather should cause all Americans to contemplate a future in which runaway global warming becomes a major driver of the climate—and our economy, homes, and livelihoods. It is never too late to begin efforts to mitigate the effects of an economy based on fossil fuels. Every effort helps, but the most effective thing we can do is to elect politicians who can mandate large-scale change and investments. In the end, almost every problem we face leads us to the ballot box for solutions. That is a lesson we must never forget or underestimate.

          Talk to you tomorrow!