Today’s Edition: A tale of two presidents.

December 8, 2021

          When Trump was president, he met with Vladimir Putin privately on five occasions. When Trump and Putin met in Helsinki, the only other people in attendance during an hour-long conversation were a Russian interpreter and Melania Trump. No record of that conversation exists. After a private meeting with Putin in Hamburg, Trump instructed the U.S. interpreter “not to discuss what had transpired [at the meeting] with other administration officials.” Trump then confiscated the interpreter’s notes to enforce his edict that the details of the meeting remain secret. To this day, we do not know what the Hamburg meeting notes say or what Putin and Trump discussed in Helsinki.

          On Tuesday, President Biden held a videoconference with Putin regarding the buildup of Russian troops on the Ukrainian border. In advance of the conference, Biden consulted with U.S. allies to advise them of the U.S. negotiating position. The White House then provided a “readout” of the calls with those allies. In advance of the videoconference, the White House provided a background briefing to the press regarding U.S. intelligence on the Russian troop movements and aggressive anti-Ukraine social media campaign by the Russian government. After the videoconference, the White House provided a readout of the talks and immediately held a press conference hosted by Secretary of State Antony Blinken and National Security Adviser Jake Sullivan to answer questions about the conversation between Biden and Putin.   

          Put aside for a moment the consequential question of the substance of the conversations that two U.S. presidents held with Vladimir Putin. For one president, the American people are still in the dark, uncertain whether Trump was plotting a cover‑up, disclosing classified information, or bragging about his self-proclaimed “big hands.” For the other president, the American people were informed at every step of the process about what Joe Biden was going to say and what he did say to Putin.

It is inconceivable (to me, at least) that any American could believe that Trump was acting in the interests of the American people in his secret meetings with Putin. Excessive secrecy is a hallmark of authoritarian regimes. Transparency is a hallmark of democracy. It worth reflecting on how far we have come in such a short time merely by electing Joe Biden as our president.

          On the consequential question of the substance of the Biden videoconference with Putin, Biden pulled no punches. He told Putin that the U.S. would take both economic and defensive military measures. See CNN, “Biden told Putin that 'things we did not do in 2014, we are prepared to do now' if Russia escalates in Ukraine, top adviser says.”  National Security Adviser Jake Sullivan described the talks this way:

Biden reiterated America's support for Ukraine's sovereignty and territorial integrity. He told President Putin directly that if Russia further invades Ukraine, the United States and our European allies would respond with strong economic measures. We would provide additional defensive materiel to the Ukrainians [and] we would fortify our NATO allies on the eastern flank with additional capabilities in response to such an escalation.

          An increase in U.S. presence on Russia’s eastern flank is the opposite of what Putin intends to achieve by threatening Ukraine. Biden went about as far as he could without escalating an already tense situation. We will be living with this tense standoff for months to come, but we should feel confident that Biden is protecting the national security interests of the U.S., not seeking to promote his personal or financial interests.

Commission on Supreme Court Reform delivers report, declines to provide recommendations.      

          During his campaign, Joe Biden temporized on the question of expanding the Supreme Court. He did so by appointing a commission to study court reform. In appointing the commission, he did not ask for recommended solutions. The commission complied. It has produced a lengthy report that failed to make any recommendations. Per media reports, the constitutional scholars on the commission are deeply divided on whether the Court should be expanded. The Hill, “Biden Supreme Court study panel unanimously approves final report.”

          Here’s the thing: The question of expanding the Court is a political question, not a constitutional one. The legitimacy of the Court does not turn on a constitutional infirmity in its structure. Rather, the Court has squandered its legitimacy by substituting a political agenda in place of constitutional jurisprudence. Given that the Court has lost its legitimacy, there is no point in attempting to preserve its legitimacy by maintaining its present size. As commission member Laurence Tribe said of the report,

          In voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy. I no longer have that confidence.

          We owe much to Biden’s leadership and willingness to take risks in his first year, but his timidity on this subject may allow the reactionary majority on the Court to turn back the clock on civil rights by 70 years. Even if Biden supports enlarging the Court, the proposal has little chance of becoming law. But Biden’s support may be enough to curtail the worst impulses of the reactionary majority.

Another federal court enjoins national vaccine mandate.

          Another day, another federal judge strikes down a national vaccine mandate. See CNBC, “U.S. court temporarily halts Biden's vaccine mandate for federal contractors nationwide.” It seems like a pattern—except when it’s not. Although lower federal courts have enjoined national vaccine mandates, the Supreme Court has let stand lower court orders upholding vaccine mandates. What gives?

          There is a way to rationalize these conflicting decisions, but we need to start with the Constitution. The Constitution grants specific powers to the federal government—e.g., the power to regulate commerce, to provide for the common defense, and to print money—but reserves to the states the remaining general powers to protect the welfare of their citizens (so-called “police” powers). Congress could pass a mandatory vaccination law as part of its authority to regulate commerce—but it has not done so. (In fairness, many conservatives would dispute the point that Congress could pass a mandatory vaccine law, but they are wrong.)

          Because Congress has not passed a mandatory vaccination law, the Biden administration has relied on executive orders and rulemaking by federal agencies to impose national vaccine mandates on federal contractors, large employers, and health care facilities that accept Medicare. Federal courts—all acting through Trump appointees—have ruled that neither the president nor federal agencies have the authority to impose vaccine mandates in the absence of a grant of authority from Congress. See CNBC articles here and here. If Congress were to pass a national vaccine mandate, such a law would likely be upheld by the Supreme Court. (Conservatives would disagree.)

          But if a state (or a political subdivision or agency acting under state authority) passes a vaccine mandate, such a law would likely be upheld under a 1905 decision by the U.S. Supreme Court, Jacobson v. Massachusetts. (“It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine.”) For example, a federal court upheld a vaccine mandate against a challenge by students at Indiana University (a state institution). The students appealed their loss to the Supreme Court, which denied the students' request for an injunction. The vaccine mandate thus remained in effect for all students attending the University.

          Court rulings over the last six months have followed this general pattern: national vaccine mandates issued by the Biden Administration have been enjoined because they lack congressional authorization while vaccine mandates issued by states (or their subdivisions) have been allowed to remain in effect. There are exceptions and variations that are too complicated to cover here (e.g., claims of infringement of the free exercise of religion), but hopefully this explanation will help you to make sense out of the blizzard of rulings.

          In short, we need Congress to pass a national vaccine mandate. Oh, wait! That will never happen unless Democrats eliminate the filibuster. It all comes back to the filibuster.

Concluding Thoughts.

          There has been much reporting in the last few days asserting that the GOP is consolidating control over state election officials. I have received many worried emails from readers who believe that the Republican “infiltration” of state election infrastructures will make it impossible for Democrats to win in 2022 and 2024. We should be concerned about those efforts, but we should not grant imaginary superpowers to Republican officials to change votes. Almost all ballots in the U.S. are tallied electronically with computer audit trails, and it is a felony everywhere to tamper with votes. (Are you listening, Merrick Garland??)

          That said, the proper response to this concerning state of affairs is for Democrats to do everything in their power to place law-abiding Democrats in key election positions and in state legislatures. There are several organizations that focus on state elections and would welcome the opportunity to channel your nervous energy into victories at the state level. Readers of this newsletter are heavily involved in Sister District, which is actively recruiting volunteers to help with all phases of the 2022 election. A reader sent the following note:

          Our flagship electoral program works to get Democrats elected to strategic state legislative seats by supporting campaigns with grassroots action. We “sister” volunteers from deep blue districts with carefully targeted races in swing districts, where flipping control of the state legislature will advance progressive policy. Our volunteers canvass, phonebank, write postcards, text bank, and fundraise for candidates. We welcome volunteers and candidates of all genders!

          So, rather than worrying about what Republicans are doing, why not give Republicans something to worry about?  The democracy you save might be your own!

          Talk to you tomorrow!