Justices charge Supreme Court acts as legislature; uses 'shadow docket'

 

Gordon L. Weil

The Supreme Court is acting as a legislature – again. 

Two justices on the Court, a conservative and a liberal, just made that charge in a major case.

Here’s the story of how two presidents set policy and the Supreme Court overruled them.

When he was president, Donald Trump sought to protect the American public from excessive exposure to the Covid-19 pandemic that was sweeping the world.  His administration adopted a policy under Title 42 of the federal laws that would ban almost all immigration into the U.S., keeping out people carrying the virus.

This policy, based on the obvious need to protect public health from contagious disease, aligned with his well-known desire to prevent unauthorized immigrants from entering the country.   It had the desired effect and was favored by the governors of states supporting Trump’s effort to bar the illegal immigrants.

When he took office, President Joe Biden retained Trump’s policy because of continuing concern about Covid-19.  Ultimately, he concluded that, while the virus still existed, it was no longer the same threat to public health.  He ordered the end of the Title 42 immigration ban.

Governors of states receiving illegal immigrants opposed his administration’s move, fearing a massive immigrant influx.  Many refugees and asylum seekers were assembled at the Mexican border awaiting Biden’s action.  The states went to federal court to halt his move.

A district court faced the immediate decision about whether the governors of the complaining states had the right, called “standing,” to bring the case.  The Supreme Court has determined parties to a case must be directly affected.  Would the states be harmed by an action under a law dealing with public health rather than immigration?

Before the case could proceed further, the Supreme Court was asked to decide if the states could raise the issue.  The ban was due to be lifted on December 21, 2022, but just two days before, the Court halted it while it decided that question alone, though not the full case.

The Court ruled it would hear testimony in February but could make its decision as late as June. If it rules in favor of the states, a lower court would then decide on the merits of the case itself.   If it decides against the states, Biden can proceed.  All that could take months.  Meanwhile, the ban, probably no longer needed for health reasons, would remain in place.

In short, the Court overruled the president’s legal determination of the health situation.  And the effect of its decision could set national immigration policy for many months, if not years.

Justice Neil Gorsuch, a Trump appointee to the Court, objected, believing the matter was a policy dispute.   Joined by Justice Katanji Brown Jackson, Biden’s only appointee, he acknowledged concerns about immigration.

“But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency,” he wrote.  “We are a court of law, not policymakers of last resort.”

The Court had other options.  It could have quickly decided on standing.  Or it could have allowed the president’s decision to be applied, while moving to a prompt ruling. 

Gorsuch and Jackson believed the majority was influenced by immigration policy concerns.  But they could not know why the majority had made such an important decision, because five justices had said nothing.  Instead they simply ordered that Biden could not end the ban.

Two other justices – Elena Kagan and Sonya Sotomajor – also opposed the majority.  They gave no reasons, possibly because they had already expressed themselves strongly about the kind of ruling used by the majority.  It’s called the “shadow docket” – rulings made to look simply procedural, but which really decide major cases.

In an earlier case, Justice Kagan had written that the Court “barely bothers to explain its conclusion.” She continued, “The majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making – which every day becomes more unreasoned, inconsistent, and impossible to defend.” 

In that case, Justice Sotomayor simply said, “The Court’s order is stunning.”  The Court did not suspend a state law, while it considered whether the law was constitutional, but allowed it to go into effect.   The immigration case used the reverse approach, though neither time did the Court provide legal justification.

Chief Justice John Roberts speaks of preserving respect for the Supreme Court and asserts that it does not play politics.  Yet he was in the majority in both cases, going along with “shadow” opinions in pending cases that allowed an anti-abortion law passed in a Republican state, but blocked the decision of a Democratic president.

“Equal Justice Under Law” is carved on the Supreme Court building.  Is this justice “equal?”  Where’s the “law?”

Trump and Russia decline, economy transforms: That Was the Year That Was

Gordon L. Weil

Some years are sure to end up in historical memory. 2022 is one of them.

Russia launched a land war in Europe long after people thought that the Second World War had ended such conflicts.

The economy underwent basic changes as people began to deal with the true costs of what they need and want.

And the dominance of one of America’s most disruptive political figures began to disintegrate.

Russia’s invasion of Ukraine came as a big surprise. With the end of the Soviet Union, Russia ceased to be seen as a threat to the rest of Europe. It was invited to join the club of the world’s major economies. But participation did not align with its desire to remain one of the world’s two superpowers, and it could not remain in the club.

Russia, whose main assets are nuclear weapons and a large population, sought to recover lost Soviet territory, capped by its Ukraine invasion. It apparently expected that its formidable army and lack of interest in the West would make a takeover easy.

Heroically defending their land, the Ukrainians were taught both Russia and the world a lesson. They revealed Russia’s military as a sham. Whatever the outcome of the war, Russia has little chance of recovering its superpower role. As Russia’s weakness became obvious, China emerged as the leading authoritarian power and the chief challenger to the U.S. and its allies.

American consumers are bargain hunters, and China enhanced its power by selling goods at low prices, collecting dollars to finance its world expansion. But the spread of Covid interrupted trade flows from China, and U.S. leaders became increasingly aware that American customers were financing the quest for power of their country’s chief rival.

Parallel to this development, the unmanaged influx of immigrants had become a major concern in the U.S. and Europe. Though millions sought unauthorized entry, the lost contribution of immigrants as workers and consumers became more obvious. Workers demanded higher pay, shortages developed and prices climbed.

Some may still believe that the world economy is merely passing through a difficult and stressful period, but that it will soon return to normal. Inflation will slow, but prices won’t retreat and business will not pick up where it left off. Such thinking misses some clear reasons that a new economy has been emerging in 2022.

Pay increases will not be rolled back. Many people have been seriously underpaid and they have implicitly joined an invisible national labor union. They withhold their labor unless they get better pay and working conditions.

Countries are getting more serious about climate change. Turning environmental damage around will make goods and services more expensive. U.S. production costs will initially be higher than were charges on imports from China, which despoils the environment while exploiting its workers.

Paying increased labor costs, less dependence on cheap Chinese imports, and environmental improvement action will keep prices from dropping back. People may have enough money to meet their needs but not to satisfy all of their wishes. This new economy could last for decades.

Donald Trump probably changed the U.S. and America’s world standing in a brief period more than all but a few previous presidents. (He would say more than any of them.) He has his MAGA supporters. Like a stopped clock that is right twice a day, he has some accomplishments. But they are byproducts of a destructive ego, and he has proved dangerous to his country.

His greatest faults have been giving comfort to bigotry and placing his own ambition and interests above the values and norms of the country he was elected to lead. He chillingly proposed the “termination” of the Constitution so he could seize the presidency he knew he had not won. He encouraged irresponsible officials to dismantle essential constitutional practices.

His combination of ignorance and arrogance came up short. In Maine, former Republican Gov. Paul LePage, an ardent ally of Trump, chose to challenge Janet Mills, the Democratic incumbent. His record, irresponsibly flaunting the will of the people, would be pitted against her record as a rightward-leaning, moderate.

Her victory was the hard evidence of Trump’s decline. Mills had a mainly positive, though not flawless, record to run on, but LePage was stuck with his Trump-like legacy. If he tried to distance himself from his previous positions, it only looked like opportunism, which did not help.

This year, Trump was losing in the judicial system and key Trumpers like LePage were losing at the ballot box. Mills showed that voters would support steady progress over chaos and controversy. In Maine and elsewhere, a brief political era was ending.

Valiant Ukraine and failing Russia, the emergence of a new economy and the descent of Trump combined to make 2022 an historic year.

Popular vote for president remains at risk

Gordon L. Weil

What was Mike Pence supposed to do?

Attention is again focused on the January 6, 2001, insurrection at the Capitol when the Vice President didn’t do what then President Trump wanted and stop counting the electoral votes that would make Joe Biden president.

Just specific action he should take was never clear.   At least one Trump advisor suggested the Constitution gave the Vice President the power simply to declare the winner, if he found enough defective votes, thus denying Biden the election.  That was a bit of a reach, even for the person who proposed it.

If that went too far, some Republicans said that Pence should kick the matter back to the contested states, particularly to state legislatures. That theory rested on a constitutional provision that gives state legislatures the power to direct how presidential electors are chosen.  That could mean the legislature would pick electors favorable to Trump despite a state’s popular vote for Biden.

Pence followed none of this dubious advice.  But the belief that the Constitution gave state legislatures total, independent power to determine the outcome of federal elections has survived.  It is now squarely before the U.S. Supreme Court.

The question survives, because it is part of the GOP playbook of voter suppression measures aimed at Democrats.  The favored plays include making it difficult to register and vote, limiting voting periods and easily accessible polling places, restricting mail-in ballots and segregating Democrats into as few districts as possible.

Drawing district lines to segregate voters by race is illegal.  But the Supreme Court will not rule against possible racial gerrymandering unless it can be shown that no other significant factor could have been the basis for the district outline.  That’s a tough case to prove.  Some southern states have managed to create a single congressional district to sweep in the state’s Black and presumably Democratic voters.

The Court will not rule at all on political gerrymandering, when a state draws congressional or state legislative district lines to pack as many members of one party into as few districts as possible.  The Court will leave that issue to the individual states as allowed by the Constitution.  That raises the question of who within a state has the power to decide.

The Constitution states that the “Manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof....”   Can the state legislature gerrymander as it wishes, unchecked by any other part of the government?

If so, a legislature could ignore the popular vote as well as the governor and the state supreme court.  Because its powers are mentioned in the Constitution, the legislature would consider itself a federal agency, lifted out of state government when it creates congressional districts.  That’s what North Carolina Republicans claim in a case now before the Supreme Court.

State legislatures cannot normally act outside of the limits of state constitutions.  But a state supreme court decision in line with a state ban on political gerrymandering might raise a conflict with the federal Constitution. In that situation, the U.S. Supreme Court could overrule the state court.

Article I of the Constitution makes the president part of the legislative process, because Congress can make decisions only with the president’s consent or by overriding a president’s veto.  State governors have a similar role. Despite the claims of the North Carolina Republicans, the Supreme Court long ago decided that governors could veto legislative districting.

The Court has already ruled that the people of Arizona, who mandated by referendum that a neutral districting commission should replace the legislature, exercised a legislative function allowed by the Framers. 

For state legislatures to gain absolute power, the Court would have to reverse two previous rulings and strip state courts of their own constitutional jurisdiction over elections to federal office.

The Court’s decision might reveal how partisan it has become.  If it rules for the Republicans, as some justices seem inclined to do, a state legislature under one party’s control at the moment the Court decides could always draw districts to keep that party dominant and in power. It would take a massive change in the electorate itself to redraw the lines.

If state legislatures are given total control over the design of congressional and legislative districts, they could similarly have unchecked power over who may cast electoral votes for president.  The popular vote could be ignored, especially if the losing candidate claimed there had been voter fraud.

Such a Court ruling might easily lead to the warped legal view that state legislators, not the people, can decide who wins federal elections.  It could also harm the Court’s already suffering reputation.

A Supreme Court decision for the North Carolina Republicans could end up requiring a Pence successor someday to do exactly what he refused to do. 

Ukraine becoming partisan issue

Gordon L. Weil

Opposition to Russia has been a core value of American policy for decades.  Under the Soviet Union and now as the Russian Federation, it has threatened world peace as it pursues its quest for domination.  The U.S. favors a system governed by agreed rules; Russia favors chaos.

Russia’s aggression against Ukraine is the latest example of its attempt to gain domination through force.  But the surprising ability of Ukraine to resist Vladimir Putin’s version of Russian expansion has given the U.S. and its NATO allies the chance to win their long struggle with a fading world power.

President Biden has led a successful response to Russian aggression without the loss of a single American life on the battlefield.  NATO was formed to block Russian expansion in Europe, and it has had to revive its mission as Russia’s attempt to take over its neighbor threatens other nearby nations, including Poland and the Baltic countries.

Ukraine stood up to Russian aggression on behalf of what was often called “the Free World” and the U.S. and its NATO allies backed its willingness to put Ukrainian lives at risk with some of the alliance’s latest weapons.

NATO has grown stronger as its member countries have been shaken from their mistaken belief that Russia, on which they had become dependent for oil and natural gas, would be a good citizen of Europe.  Finland, which shares a long border with Russia, and Sweden have moved off the sidelines to seek NATO membership.  The alliance has moved its forces closer to Russia.

The NATO countries also imposed possibly the toughest economic sanctions ever levied short of outright blockade.  Americans paid the price at the pump, but the cost to Russia will be higher and longer lasting.  Putin’s folly may have transformed the world economy for good.

Biden has had bipartisan support in Congress for his Ukraine policies of sending arms, training troops and easing the hardships of war.  Traditional GOP opposition to Russia coupled with Biden’s ability to lead a united Democratic contingent have been paying off in successful resistance to Russia, now revealed as a paper tiger, though still one with nuclear weapons.

But some Republicans oppose Biden’s policy.  Their numbers may be growing as the war wears on.  With GOP control of the House next year, they could try to undercut what has been a successful policy.  Ukraine aid is becoming an increasingly partisan issue.

There may be three reasons for the growing Republican opposition.  First, they don’t want Biden to succeed.  Second, they would revive traditional American isolationism based on ignoring much of what takes place in the world and focusing on our own concerns.  Third, some like Putin, because they see him as an efficient authoritarian.

Ukraine President Volodymyr Zelensky and his people may be fighting an unwinnable war, because Ukraine is restrained by NATO from launching a counterattack into Russia.  And the weak Russian military is propped up by Iran and must fight to hold its ground, but no longer advances.

Each side seeks the best possible positions before the negotiations that will inevitably end the fighting.  Russia wants to demoralize Ukrainians by attacks on homes, hospitals and energy facilities, so they will be ready to cede territory.  Ukraine wants to recover as much territory as possible before talks begin and relies on continued U.S. arms supplies.

The minute the war halts, it will be fair to say that Ukraine has won and Russia has lost. Russia, which could not take over Ukraine and turn it into a buffer against NATO, has not only failed to annex its neighbor but has seen NATO strengthened.  Ukraine has shown it can field a strong army.

The first step toward a negotiated settlement is a cease fire.  Ukraine must force Putin to conclude that he must stop fighting and start talking.  Zelensky needs strong NATO backing, which depends on the U.S.  It’s an illusion to believe that Europe can go it alone without American leadership.  Wishing for that won’t make it happen.

The risk is that partisan congressional opposition could reduce or eliminate critical American support and hand Russia an unearned victory instead of ending its great power myth.  If the U.S. maintains its support for Ukraine, the result will reduce or eliminate its Russian rival.  And it could send a message to China, possibly discouraging an invasion of Taiwan.

The American president is responsible for foreign policy, but Congress has the power of the purse.   A bipartisan agreement on foreign policy is a worthy goal.  Such an accord does not mean that other goals cannot also be pursued.

Ukraine policy should not come down to opposing a Democratic president with a Republican “America First” view.  Ukraine is both too important and winnable.

 

Trumps' Constitution statement could help GOP, Biden

 

Gordon L. Weil

Donald Trump may have made matters a lot easier for both Republicans and Joe Biden.

He argued for “termination” of the Constitution when it came to dealing with his claim that he had been cheated out of winning the 2020 election.

Whatever our personal views, all Americans are supposedly united in supporting the Constitution.  Even when we honestly disagree about some of its terms, we all agree that it deserves our allegiance and support.  Without it, we have no American Republic. Trump seems not to care.

Republicans will have narrow control of the House of Representatives.  Their majority gives them the chance to set the table for the 2024 elections by offering alternatives to the Democrats, even if they are not accepted, and agreeing with the Democrats when it suits them.

But some Republicans want to keep following Trump, despite his focus on himself rather than on his party or country.   They would try to harass Biden and discredit the January 6 committee, which places some blame on the Trump White House for the insurrection.  These right-wing Republicans prefer to be backward looking, not forward looking.

Trump’s dangerous statement gives the GOP the opportunity to cut its dependency on him and his hardcore backers by taking the high ground, defending the Constitution.  They can reject the Trumpers without being vulnerable to any charges they are RINOs, Republicans In Name Only.

Congressional Republicans have mostly been silent about Trump’s statement, perhaps fearful of losing the support of his core.  Yet, at the start of the new Congress on January 3, 2023, all of them must pledge to support the Constitution, as required by its Article VI. The Framers wanted to ensure that federal and state office holders remember they are subject to it.

If Trump backers favor him over respecting the Constitution, they clearly lean toward authoritarian government, where the leader means more than the law.  If they forgive Trump his foibles or fear the political price for defending the Constitution, they enable him and others in destroying it.

This Congress is likely to be a turning point for the Republicans.  They can obstruct or offer alternatives.  Their House leadership can cater to the party’s extreme right wing and continue on the path toward permanent minority status, taking a majority of the House GOP with them.

The right wing does not want the Speaker to allow any matter to come to a vote unless it has the support of a “majority of the majority.”  In other words, nothing happens unless a majority of Republicans approve.  There would prevent any bill to be passed by most Democrats and some Republicans.  The Senate, even under Democratic control, would be stymied.

In the 2022 congressional elections, 26 seats were rated by nonpartisan Politico as pure toss-ups. Only six of them went to the GOP, which also picked up one seat leaning Democratic.  Those seven new members must be moderates if they want to hold onto their seats.  Ignoring them could be fatal to Republican control in 2024.  The right wing would simply roll over them.

It’s questionable if that’s what American voters want. If they prefer a government that finds compromises and produces results, they need a Republican House that works.  It can put its stamp on legislation rather than only using its majority to attack Biden and his proposals and to rewrite history.  Ensuring nothing happens except partisan bitterness is not good government.

The Maine Legislature was rated as a toss-up this year.  But the GOP failed to gain control of either house.  Still, it did not adopt Paul LePage’s hostility toward Governor Mills.  The Maine Republicans set an example for their Washington counterparts.

They agreed with the governor that more funding is needed for home heating aid rather than simply demanding she cut tax rates.  Their support is essential so that the help will come when needed.  The two sides readily began talking about ways to get the aid moving, while giving the GOP influence on who receives it.  That presumably is what the voters want to happen.

How does Trump’s attack on the Constitution, revealing both his unbridled ego and his disloyalty to his oath, help Joe Biden?

My assumption has been from the outset that Biden has never intended to be more than a single-term president.  But he did not want to be seen as ducking a new contest with Trump, especially in light of the charges that he had somehow won previously by cheating. 

Now, nobody should worry about running against the American In Name Only, who would terminate the Constitution for his own benefit.  In decline, Trump may be out of the Republican nomination race much less the general election.

Biden can now decline to run again without appearing to dodge a real challenge by Trump.

 

 

Debt ceiling is phony, should be abandoned

 

Gordon L. Weil

The U.S.A. is the greatest country in the world. 

The “debt ceiling” is boring.

But those often misunderstood words represent a prime reason for America’s standing as a dominant power with a strong economy.  They assure all that America pays its bills. Yet congressional politics get in the way of setting that limit.

The debt ceiling is the maximum amount of federal government borrowing allowed at any time.    It covers all money the government owes, including the funds owed by one government agency to another.  It does not approve or allow new federal spending.  Funds from borrowing are added to tax revenues to pay for spending Congress has already approved. 

Congress originally authorized each federal government bond.  When that job grew burdensome, it substituted a cap on total debt, leaving the Treasury to issue each bond.  For a while, Congress decided that each spending decision would automatically raise the debt ceiling.  That made sense, but the politicians could not accept losing the vote on debt as a political tool.

Now, one party can use its agreement to a debt ceiling increase to pry concessions on spending from the other side.  Like so much else in Washington, an historic government practice has been converted into a partisan weapon.  Budget politics ignores the shared responsibility of both parties for the spending that ends up requiring the increase.

Playing political games with the debt ceiling is like playing with fire.  And you’re surrounded by deadly explosives. 

If the debt ceiling is not increased, the Treasury won’t be able to pay current costs.  After using every dollar it can scrape up, it must stop or slow some regular government outlays.  Social Security, federal employee and military pay, and emergency response aid could be affected.

A lot of what people receive directly or indirectly from the federal government would be cut back or slowed down.  The effect on the national economy could be huge.  If we worry now about a recession, a sharp reduction in federal spending might guarantee it.

But the effect would be far worse than that.  The U.S. role as the leading global power reflects the role of the dollar as the world’s reserve currency.  That means most of the world regards the U.S. dollar as the most reliable and secure currency.  The dollar is backed by the American economy and the U.S. has never defaulted, always paying its debts.

The dollar is so solid that 65 countries tie their currencies to it and 11 other countries use it as their official currency.  When countries or companies make deals, they frequently use the dollar rather than their own currencies.  The dollar is reliable and does not lose its value.

In the competition and conflict among the world’s great powers, the U.S. has two dominant strengths.  It has the largest, best equipped armed forces spread around the globe.  And it has the dollar.

Compare the U.S. with China.  With more than four times the population, China could displace the U.S, as the top economy in the world.  It is rapidly building up its military, trying to achieve equality with the U.S.  And it wants its currency – the renminbi – to become an alternate world reserve currency to the dollar, enabling it to extend its power across the world.

Historically, the U.S. has not been a typical colonial power with vast overseas territory.  It has projected its power by the outreach of its economy and the strength of the dollar.  As the world’s reserve currency, it is freely convertible with most other currencies.  That’s not true for the renminbi, suggesting that keeping the dollar strong is as important as keeping the military strong.

But threatening the strength of the dollar by raising questions about the willingness and ability of the American government to pay its bills weakens U.S. influence and power.

Republicans could use their House control next year to block an increase in the debt ceiling unless federal spending is reduced.  Lower outlays would leave money to pay outstanding debt.   In the waning days of the current Congress, Democrats are trying for an increase in the ceiling that will last well into the future.

If President Biden resists the GOP, the federal government could be forced to at least a partial shutdown.  In 1995, the last time that happened, the Republicans got the blame.  Would they now risk being assigned the responsibility for a shutdown that could bring a recession?  Even worse, would they give a boost to Chinese ambitions?

The debt ceiling is meaningless, because it merely allows for debt already approved by Congress.  It could either be abolished outright as being useless or raised automatically with spending bills, as was formerly the case, eliminating the need for a separate vote.  Either way, Congress should stop playing with fire.

Trump allies seek to retaliate for his two impeachments

Gordon L. Weil

“I’m a work horse, not a show horse.”

Candidates for public office have made that claim, trying to convince voters they would be serious about their duties and not merely headline grabbers.  They wanted to impress hard-working voters.

Now, Congress is peppered with show horses. For them, a seat in the House of Representatives provides them with the platform for pursuing conspiracies that can attract media attention.  They don’t want to make laws; they want to make trouble.

With the slim Republican majority in the House, these radical right-wing members may soon have the power to conduct mock “investigations” and possibly even to force a vote on impeaching President Biden.  They have resented being marginalized in the past and now see their opportunity to step into the spotlight.

There’s an agenda behind their moves that goes beyond merely gaining public attention for their theories.  It’s a vendetta for Biden’s victory over Donald Trump in 2020.

Some of these Trumpers still falsely claim that the last presidential election was stolen by Biden and the Democrats.  They can do little about that with Biden installed in the White House, but they can harass him.  To their election complaint, they add grievances about congressional hearings on Trump, especially his actions during the January 6 insurrection.

If they can force Biden into defending himself against their trumped up charges, they hope to weaken him as the Democratic candidate in 2024.  As the saying goes, if you “throw enough mud against a wall, some of it may stick.”  Even if their charges are fake, they might make some voters nervous about Biden.

If Biden has to go on the defensive, he will have less time for his legislative agenda.  The radicals would consider the defeat of his agenda a major accomplishment. They would have no need for a program of their own.

Texas Republican Sen. Ted Cruz had earlier warned that if his party took the House, there would be a chance it will impeach Biden, “whether it’s justified or not.”  It would be payback for the two impeachments of then President Trump, which the GOP saw as partisan excess. 

If Congress could impeach Trump for a phone call to Ukraine President Zelensky, the radicals may believe that pursuing Biden for the chaotic withdrawal of American forces from Afghanistan could work. 

Presidential impeachment is political.  It has been used four times: Andrew Johnson (1868), Bill Clinton (1999), and Trump (2019, 2021).  All were overwhelmingly partisan and none led to the president’s removal.  The only bipartisan move, targeting Richard Nixon (1974), led to his resigning to avoid being impeached and then convicted by the Senate.

Trump, who often finds himself in court, is now facing serious legal charges, probably more challenging than impeachment.  He continually asserts that all charges against him are politically motivated.  But his likely violation of the Presidential Records Act keeps moving ahead, and he scrambles to put together a defense. 

His allies in the House may hope to use pressure on Biden as a way to induce prosecutors to back off on Trump’s cases.  But a new special prosecutor, beyond political reach, is dealing with his keeping government records and his insurrection role.  He also faces possible indictment in Georgia and New York on state charges, both unaffected by whatever happens in Congress.

Impeachment has been devalued by its increasingly frequent and overtly political use when there’s no hope of conviction by the Senate.  Charges brought by prosecutors may take its place as a way of holding a president accountable. 

Because Trump is once again a candidate, prosecutors must proceed with caution, but need not be deterred. Trump on trial could face what is for him a fate worse than impeachment – losing.

It’s likely that a Biden impeachment resolution will be introduced and that the Judiciary Committee will hold hearings.  Will the GOP unite to pass a resolution leading to a Senate trial?  Bringing Biden before the Senate, where he surely could not be convicted, would be counted as a big win by the radical right.

The GOP Speaker should be able control the Republicans and to ensure that they do not later pay a political price for focusing on Biden and not on congressional business.  But GOP control of the House is so narrow that the Speaker cannot afford to offend the radicals.  Besides, the radical agenda includes reducing the Speaker’s powers.

The radicals might be allowed to play out their game.  But their overreaching could cause a Republican split.  The radicals’ exaggerated role might bring a reaction from traditional conservatives that could boost the GOP’s appeal to a broader electorate. 

If Biden decides against running again, removing him as a prime target for the radical right, the Republicans might find it advantageous to return to their roots.