John Yoo defends the presidency, not the Constitution

John Yoo, the lawyer best known for authorizing war crimes during the Bush Administration, has a piece up at National Review purporting to explain that "Trump has become a stouter defender of our original governing document than his critics."

Let's take a look. He starts with some stuff about how Democrats are the real abusers of the Constitution, before mounting his defense of Trump as (possibly accidental) defender of the realm:

But Trump’s defense of the constitutional order has gone beyond simply blocking bad ideas. His battle for the Constitution took three basic forms. First, and most importantly, he fought off Robert Mueller’s special-counsel investigation and impeachment. Both challenged the president’s authority to govern the executive branch and to fulfill his constitutional duty to enforce the law.

This treats the investigation and impeachment of Trump as though they were merely challenges to his authority, instead of legitimate inquiries into corruption to acquire power and abusing that power to keep it. It's a false distinction. Congress challenges the authority of presidents all the time. It is rare that those challenges rise to the level of special counsel investigations or impeachment. Yoo seems to conceds the legitimacy of the inquiries in the very next paragraph.

Trump didn’t win acquittal based on innocence, however, but because the Constitution gave him a built-in advantage.

That's ... not a great defense of the Constitution, is it?

With 53 Republicans holding the Senate majority, the House had to persuade 20 Republicans to vote to convict. They convinced only one, Senator Mitt Romney (R., Utah). The Founders didn’t impose the two-thirds vote requirement in the Senate to protect Trump. They did it to defend the institution of the presidency. The Framers rejected a parliamentary system in which Congress selects a prime minister who both leads the legislative majority and heads the executive branch. Their great experiment with a separation of powers required a presidency independently chosen by the people and vested with its own unique powers and responsibilities.

This is a great spot to note that Trump wasn't chosen by the people. Won the right states to win the Electoral College, but Hillary Clinton won the popular vote. Common use of "the people" would generally suggest that the vote loser is not the person who represents them.

The Framers feared that impeachment and removal by simple majority vote would render the president dependent on Congress, and thus deprive it of the energy, speed, and decisiveness needed for good government. The two-thirds vote requirement ensured that Democrats could not remove Trump due to partisanship, or even policy disputes. The Constitution became Trump’s great shield, and in winning the impeachment battle, Trump repaid the favor by reinforcing the independence of the executive.

Again, this fogs the actual issues. Democrats didn't try to remove Trump because of "policy disputes," but because he used the power of his office to try to solicit foreign interference in the election. The Constitution didn't shield the executive's ability to act with energy in this case -- it shielded corruption. Yoo's argument here depends on conflating legitimate authority with abuse of power.

Second, Trump defended traditional executive primacy in foreign affairs and war. Trump has used his executive control over foreign affairs to achieve what may prove to be his most lasting effect on American policy — shifting America’s strategic focus onto China and away from the Middle East. He has used power given to him by Congress to ratchet up economic sanctions on Beijing, and exercised his constitutional powers to terminate arms-control agreements that restrained the U.S. but not China. 

It's important to note the arms control agreements that Trump terminated were with Russia, not China. The result is that China is still not restrained -- and, now, neither are the U.S. and Russia. But that's not really a question of his Constitutional prerogatives, but of his wisdom. (Maybe it should be: I'm not really sure why the Constitution requires a president to get Senate approval for a treaty, but presidents are seemingly free to withdraw from treaties without any kind of Congressional backing. Treaties are, Constitutionally speaking, the law of the land. Presidents generally don't get to repeal laws willy-nilly.)

Trump used his power as commander-in-chief to contain Tehran, as in the drone killing of Iranian general Qasem Soleimani...

That was an act of war against Iran. Congress has the power to declare war. Trump didn't even notify Congressional leaders ahead of time. Lauding this use of "his power as commander-in-chief" is to suggest Congress has no real role in warmaking or foreign policy. That's not what the Constitution says.

...while reducing U.S. troop levels in Syria, Iraq, and Afghanistan. Congressional opponents sought to block Trump by narrowing his war powers and control over foreign affairs, but so far with little result. While Congress may seek to advance different policies through spending or legislation, the Constitution designed the executive branch specifically so that it could quickly and effectively protect national security and pursue our interests abroad.

Again: The Constitution gives Congress the power to declare war. In reality, it has mostly ceded that responsibility to the president in recent decades, but that reality doesn't make it any less Constitutionally suspect.

Third, Trump appointed a Supreme Court that could return the Constitution to its original understanding on questions ranging from federalism to individual liberties. He nominated Neil Gorsuch and Brett Kavanaugh, conservative judges with eminent qualifications, to the Supreme Court, and has filled more than a quarter of the lower courts with young, bright, conservative intellects. Liberals rightly worry that these appointments augur a sea change in constitutional law that could threaten the vast administrative state, the creeping control of Washington, D.C., over everyday life, and even Roe v. Wade’s protections for abortion. Progressives responded by attacking the Supreme Court. During the Democratic presidential primaries, senators Elizabeth Warren and Kamala Harris and Mayor Pete Buttigieg, among others, called for expanding the Supreme Court from nine to 15 justices so that the next Democratic president could pack it with liberals. 

I'm no fan of court-packing. But changing the number of justices wouldn't be against the Constitution: "The Constitution does not stipulate the number of Supreme Court Justices; the number is set instead by Congress. There have been as few as six, but since 1869 there have been nine Justices, including one Chief Justice." It has happened before. It might happen again. 

Democrats have attacked the personal records of judicial nominees and have even threatened to impeach Kavanaugh for sexual-harassment claims that the Senate fully aired during his confirmation. 

No they didn't.

All of these attacks leave Trump in the position of defending the Supreme Court and the institution of judicial independence.

This seems pretty clearly to be BS. Trump is no more interested in "judicial independence" than he is in the Bible he held aloft at Lafayette Square. As Noah Feldman notes:

In nearly four years in office, President Donald Trump has challenged the independence of the judicial branch more than any other president. He’s accused judges of being “Obama judges” or “Mexican judges.” When he’s been investigated for corruption or obstruction of justice, he’s routinely portrayed himself as above the law. He’s directed his administration to issue a spate of unlawful executive orders. With the November election looming, it’s a good time to ask: Can the legitimacy of the federal judiciary survive another four years of this president?

Yoo's notion that Trump is a defender of the Constitution requires believing two things: A) Trump is honest. B) That Congress doesn't have Constitutional prerogatives of its own worth defending. As ever, John Yoo is defending the presidency, not the Constition. As ever, he is doing it to dangerous ends.

No, teachers are not the same as nurses (Or: Let's talk about Maslow's Hierarchy of Needs)

Kristen McConnell writes at The Atlantic this morning that schools should reopen, because, well ... the title says it all: "I’m a Nurse in New York. Teachers Should Do Their Jobs, Just Like I Did."

What I don’t support is preemptively threatening “safety strikes,” as the American Federation of Teachers did in late July. These threats run counter to the fact that, by and large, school districts are already fine-tuning social-distancing measures and mandating mask-wearing. Teachers are not being asked to work without precautions, but some overlook this: the politics of mask-wearing have gotten so ridiculous that many seem to believe masks only protect other people, or are largely symbolic. They’re not. Nurses and doctors know that masks do a lot to keep us safe, and that other basics such as hand-washing and social distancing are effective at preventing the spread of the coronavirus.

Instead of taking the summer to hone arguments against returning to the classroom, administrators and teachers should be thinking about how they can best support children and their families through a turbulent time. Schools are essential to the functioning of our society, and that makes teachers essential workers. They should rise to the occasion even if it makes them nervous, just like health-care workers have.

She adds: "I can understand that teachers are nervous about returning to school. But they should take a cue from their fellow essential workers and do their job. Even people who think there’s a fundamental difference between a nurse and a teacher in a pandemic must realize that there isn’t one between a grocery-store worker and a teacher, in terms of obligation. "

But of course there's a difference. Let's turn back to our high school psychology class, and Maslow's Hierarchy of Needs, to understand why. Wikipedia explains the fundamental concept pretty well:

Maslow's hierarchy of needs is often portrayed in the shape of a pyramid with the largest, most fundamental needs at the bottom and the need for self-actualization and transcendence at the top. In other words, the theory is that individuals' most basic needs must be met before they become motivated to achieve higher level needs.

Right. 

So. The very act of staying alive today is the most elemental consideration that humans have. Doctors and nurses do the job of keeping sick people alive today. If they don't do their jobs, all other considerations are moot. Similarly, the act of staying alive today and beyond today is pretty elemental: If grocery store workers -- and my wife is one, and it makes me nervous as hell -- don't do their jobs, people will starve. (Protections for those workers should be as stringent as possible, obviously.) Without nurses and food producers continuing their work, many of us die. It's that simple. We shouldn't take those folks for granted. They're keeping us alive.

Teachers are important. But their work takes place on a somewhat higher level of need. If a kid isn't schooled today, that kid will live. But if a kid goes to school today ...well, the kid will probably live. But we're not quite as sure about their parents or teachers. Just this morning, I've read about a school district in Georgia that has had to quarantine 260 employees while it tries to reopen. Closer to my home, Kansas educators who went on a leadership retreat to plan for reopening ended up spreading the virus among themselves -- and one of them is in an ICU.

So maybe, as McConnell says, districts are "fine-tuning social distancing measures," but there's a growing amount of anecdotal evidence they're not succeeding. 

McConnell writes: "What do teachers think will happen if working parents cannot send their children to school? Life as we know it simply will not go on." That's an important consideration. But guess what? Life as we know it simply isn't going on right now, and probably won't for awhile -- if ever. We have to adjust to that, not wish it away -- particularly if it means harming more people as a result. 

Why Axios got a good Trump interview and cable news (mostly) can't

A lot of talk this morning about President Trump's disastrous interview with Axios' Jonathan Swan. Here is one piece of feedback I found intriguing.

I think Laswell put her finger on why you don't see these kind of interviews* with Trump more often, despite the fact the president does a fair number of TV interviews: It's hard to watch. 

I don't enjoy watching combative TV interviews -- would rather read a transcript afterwards. For all the shouting of my opinion that I do, I'm not big on real life interpersonal conflict. So perhaps I'm projecting here, but I suspect a lot of people feel the same way. (A lot of other people clearly don't, for what it's worth.)

Why does this matter to the Trump situation? Because -- as always -- TV news tends to be more about TV than news. Ariana Pekary, who just quit her job at MSNBC, explains this: 

It’s possible that I’m more sensitive to the editorial process due to my background in public radio, where no decision I ever witnessed was predicated on how a topic or guest would “rate.” The longer I was at MSNBC, the more I saw such choices — it’s practically baked in to the editorial process – and those decisions affect news content every day. Likewise, it’s taboo to discuss how the ratings scheme distorts content, or it’s simply taken for granted, because everyone in the commercial broadcast news industry is doing the exact same thing.

Cable news decisions are driven as much by what executives think audiences will watch as what is actually news. And this gets us back to why Trump doesn't often face challenging TV questions: Executives want to make you feel a lot of extreme emotions that will keep you tuned to their channel -- but they don't want to be hard to watch.  

Chris Wallace has proven a recent exception. And it's true that Trump very frequently gives his interviews to friendly outlets. But I don't think it's a coincidence that Swan is largely a "print" journalist. (These distinctions are blurrier in the digital age.) Print journalists aren't above clickability considerations these days, obviously, but I think there's a stronger culture of "getting the news" in print than in TV -- where, again, the point is to put on a show. 

* One-on-one interviews are a different setting than briefings, where every reporter may only get one question and possibly not a follow-up.

Destroying the Post Office means destroying rural America

I grew up in a small town of about 3,000 people. I don't want to live there anymore, but I also don't want to see it disappear. I suspect a lot of Americans are like me.

So it alarms me that President Trump seems hellbent on destroying the effectiveness of the Post Office. (In this, he has been aided by years of work from Congressional Republicans.) That will hurt the small, rural towns that provide so much of the president's support. Vox reported on this in April:

The USPS is legally required to deliver all mail, to all postal addresses in all regions, at a flat rate, no matter how far it may have to travel. The service’s accessibility and affordability are especially important to rural communities that live in poverty and to people with disabilities, who can’t afford the cost of a private business to deliver their daily necessities. (In 2017, the rural poverty rate was 16.4 percent, compared with 12.9 percent for urban areas.)

And while some may argue that the USPS is becoming more obsolete as an increasing number of services are becoming digitalized, there’s still a large chunk of people who rely on mail because they have poor (or no) internet service. (The Federal Communications Commission estimates that 14.5 million people in rural areas lack access to broadband.) In fact, 18 percent of Americans still pay their bills by mail, according to an ACI Worldwide report; meanwhile, 20 percent of adults over 40 who take medication for a chronic condition get those pills by mail order, according to a survey by the National Community Pharmacists Association.

Neither Democrats or Republicans are actually all that good at serving rural interests, even though rural red states have disproportionate power. That usually translates into generous farm bills, and occasionally preserving railroad service to small towns. But letting the Post Office go to hell will hurt small towns. If only for their political survival, I don't know why Republicans would let this happen.

More Kris Kobach election news

Politico reports that Republicans are worried they'll lose their Senate majority because Democrats are throwing money into the Kansas race in support of Kris Kobach winning the nomination. “The Senate majority runs through Kansas,” we're told.

I've already suggested that Democrats are playing with fire. Some of my Democratic friends tell me he's not actually all that much worse than Roger Marshall, the GOP establishment pick for the nomination, so it's a wash if he wins. But it seems to me that notion is belied by the fact that Dems are trying to get him nominated -- the things they perceive as making him more obviously politically poisonous will be poisonous if he somehow parlays that Democratic cash into a US Senate seat.

Even Republicans don't believe that can happen, apparently. But I don't love this kind of political maneuvering -- call me naive if you want. At the very least, I'm a Kansas voter -- and I don't want Kobach occupying any of my mental space over the next few months.

Movie Night: WEREWOLF OF LONDON

Ow-OOOOOOOOOH:

* This is a movie from 1935, when Hollywood was still getting used to making "talkies," and the influence of silent moviemaking is apparent here -- in the exaggerated physicality of some of the acting, in the closeups of the wolfman's face. One of the real fun parts of old movies like this is looking at the IMDB pages of the actors and realizing some of them were born around the time of the Civil War. Those folks witnessed a lot of change in their lives.

* It's funny how ancient some of our tropes are. Does the promiscuous young woman get killed by the werewolf after seducing a young security guard into infidelity? Damn straight.

* That said, this is one of Universal's early monster movies, and while it's enjoyable enough, it lacks some of the artistry you find in, say, James Whale's FRANKENSTEIN movies, or even THE WOLF MAN. Sometimes you have the touch. Sometimes you don't.

Coronavirus Diary: Reading in a Pandemic

A lot of people have been in "comfort food" reading mode since the pandemic started, and I can't blame them. On the TV front, I've rewatched COMMUNITY already, as well as -- God help me -- COUGAR TOWN. Which is bad. Really bad. And yet.

On the book front, though, it's a different story. I feel like, suddenly, I am running out of reading time and so I am trying to cram in every great book I've ever wanted to read. I don't have patience for the sci-fi pulp I was reading as recently as January. I want books I suspect will enrich me, challenge me, or teach me something. And I panic at the thought of all the reading I want to do that is, as yet -- and might well forever be -- unfinished.

Right now, I am juggling four books -- trying to get a chapter a day or more out of each.

LETTERS FROM A STOIC, by Seneca

MOBY DICK, by Herman Melville

THE REACTIONARY MIND, by Corey Robin

FREDERICK DOUGLASS: PROPHET OF FREEDOM by David Blight.

I've also, in the last few months, read and finished nonfiction books about Kurt Vonnegut's writing philosophy, American history, Fred Phelps' family, homebuilding and, well, THE JORDAN RULES. (My bit of comfort reading, perhaps.) I've also read Toni Morrison's BELOVED. When I finish MOBY DICK, I hope to turn to THE TIN DRUM, by Gunter Grass.

I do wonder from time to time what the purpose of all this is: If it is true that time is running short, what's the point? All the reading I have done will die with me, right? I can only hope that some of what I am absorbing translates into me writing better, more thoughtfully, and with more perspectives and more information in mind. And hopefully, too, it translates into me acting in real life with some greater empathy and wisdom. 

But who really knows? All I know is that I am a reader. Or, at least, I want to be a reader, because the people I want to be like are readers. I guess that will have to be good enough.