Chief Justice says judges aren't political. True or false?

Chief Justice John Roberts says federal judges are not political. They are nonpartisan umpires of disputes under the law.

Or, in fact, do federal judges create law for partisan reasons, when they should limit their judgments to simply following the law?

The answer is a firm “maybe.”

Conservatives want judges to uphold the existing law and even the thinking of the Constitution’s drafters. Liberals see the country as continually changing, meaning judges must reconsider legal norms.

Of course, federal judges are often selected by the president based on their view of the law, conservative or liberal. That may look like partisanship, though Roberts claims the results are not political.

But a recent federal court decision in Texas that the Affordable Care Act is unconstitutional came from a judge who reliably decides cases in line with GOP policy.

The Supreme Court had ruled the ACA was constitutional because it included a tax. The federal government has unlimited authority to tax, potentially making any tax law constitutional. The ACA taxed any person who did not get health insurance coverage despite the individual mandate to obtain coverage.

Last year, Congress had lowered that tax rate to zero. The widely held belief that the ACA’s individual mandate was eliminated is a major myth. There is now simply no penalty for ignoring it. The taxing authority remains in the law and the rate could be changed by Congress.

The Texas judge found that, without a tax being collected, there is no tax and the entire law is unconstitutional. He thought Congress had meant to repeal the ACA, but, while it cut the tax, it used a procedure that intentionally prevented outright repeal.

ACA supporters argued that the Texas judge had allowed his Republican, anti-ACA political views to guide his judicial reasoning. He had ignored parts of the law that contained other taxes and some which could easily stand on their own even if parts of the law were unconstitutional.

Texas federal courts are full of conservative Bush and Trump appointees. They usually can be relied upon to support opponents of Obama-era laws.

Of course, he could merely be incompetent, not political. With scores of federal judges whipped through the confirmation process by Senate Leader McConnell, some mistakes are inevitable. And some judges change for the worse once on the bench.

By contrast, in Maine, a new federal judge, appointed by President Trump, left no doubt that he could rise above partisanship. He faced a case that demonstrated the kind of work judges must do, leading losers to charge incorrectly that judges are making law.

Maine has ranked choice voting, which allows a voter to rank all candidates on the ballot in order of preference. If a voter’s favorite trails, his or her second choice vote then becomes a first choice vote for one of the top candidates. If you voted for one of the two front-runners, your vote remains the same.

Does this process violate the constitutional principle of one-person, one-vote? That is what the judge had to decide. His decision would determine if the incumbent GOP representative would lose the congressional seat.

Some people argue that voters who originally picked one of the top two candidates never gets to change their vote as candidates are eliminated. Voters for trailing candidates, who are dropped out, get another vote for one of the surviving candidates. That was Rep. Poliquin's view.

The other view is that each voter gets the same chance to vote for all the candidates on the ballot, so none gets more votes than another. If the voter chooses not to make all possible choices, that is the voter’s right but does not undermine one-person, one-vote.

Each side can argue, based on other court decisions and supposed voter or legislative intent, that their interpretation is correct. This kind of debate occurs in most court cases, even though the majority of matters have nothing to do with constitutional questions.

This voter-enacted law had no ready answer about which view is correct. That’s why we must have judges decide, and they must be independent of either side.

Here, the judge, a Republican appointee, ruled against the position of the Republican candidate, costing him the election. Did he make law? Or did he do the judge’s essential job of making an independent decision in an honest dispute?

Presidents may make appointments of judges who they hope will support their policies. But judges are not political players. Life terms are meant to ensure their independence. The record shows a mixed result.

Trump's failure to assume 'mantle' of national leader has major effect

Incoming Republican Sen. Mitt Romney of Utah, the former presidential candidate, has issued a sharp criticism of President Trump.

"A president should demonstrate the essential qualities of honesty and integrity," he wrote, "and elevate the national discourse with comity and mutual respect." Romney concluded that the "president has not risen to the mantle of the office."

Romney may be questioned for his shortcomings as presidential candidate or for taking on the president of his own party. But he also praised major actions of the first two years of the Trump presidency.

He hit on key concerns about Trump's presidency. The president frequently does not speak truthfully and repeats untruths even after correction, making them intentional lies. He does not treat others with respect.

He bolsters his supporters, but seems unwilling to reach out for compromises. How he can brutally attack and belittle Democratic leaders and expect them to make concessions to him, which he will surely claim as his victories over them, is hard to understand.

The issue behind Romney's complaint is far more significant than what kind of a president Trump is turning out to be. He and Sen. GOP Leader Mitch McConnell have raised deep doubts about the American political system.

The U.S. has been called "an experiment" as the first real national democracy in modern history. Its form of government, established by the Constitution, is unique.

It is a manual for the functioning of the federal government and of federalism itself. Office holders pledge to "preserve, protect and defend" the Constitution for good reason. It is new, fragile and subject to attack.

No group of people could devise a manual that would cover all possible concerns, present and future. Beyond the document itself, there must be a set of common understandings about how it would be applied in practice.

Admittedly, these understandings were those of a group of men, most formerly British, who shared a common view of how government would work. They recognized there would be partisan splits, but they believed they would take place within the limits of the Constitution and their common understandings.

They knew the Constitution would need to be amended to deal with new challenges or unresolved questions. Now it has become impossible to adopt almost any amendment for fear that, once the process is opened, radicals could use it to roll back longstanding guarantees of freedom.

They agreed that the president would make Supreme Court appointments with the "advice and consent" of the Senate. 

The understanding was that the Senate will either give its consent or refuse it. But, for President Obama's last nominee, McConnell allowed the Senate to do neither, violating that historic understanding.

The Constitution requires a simple majority vote on most matters. The original understanding was that honorable people would voluntarily end debate. When southern senators wanted to block votes on civil rights, they refused to stop talking. The Senate imposed a supermajority vote to end debate. It now covers all important bills.

Congress is supposed to be the top lawmaking body in the federal government. With members' highest priority being reelection, which leads them to avoid tough issues, Congress has shifted much of its constitutional responsibility to the executive.

Trump does not like the special Senate majority, which protects the minority party, because it prevents his Wall. Democrats regret all the legislative power they have given to Trump, including declaring a national emergency. Neither was a constitutional understanding.

The "mantle of the office" cited by Romney is part of this web of common understandings, essential to the success of the American system of government.

In the U.K., the queen or king is the head of the country and the prime minister is the head of the government. The royal is a symbolic leader for all people, while the prime minister is a political leader.

In the U.S., the president is both head of the country and head of government. As a political figure, the president is accepted as a partisan, the leader of his or her political party.

As head of the country, the president is expected to show that he or she represents the national interest and can separate partisanship and national leadership.

Trump's extreme attacks on Democrats, loyal Americans like him, and his attempt to politicize the armed forces are threats to common understandings and historic practices essential to our system of government.

Is Romney now the only Republican senator who sees these threats? Where is Susan Collins?

Trump's time in office is constitutionally limited, but the harm to common understandings may last.

Partisan posturing is no way to deal with Wall, shutdown EXTRA POST

When the president speaks on national television, the American people expect an explanation of an important action or an attempt to rally them in the face of a major threat. Usually, no response is made by a leader of the opposing party.

Only when the president lays out his program to Congress in the State of the Union address is there a partisan response.

This week, people had the unusual experience of President Trump arguing for one of the key elements of his electoral program and Speaker Pelosi and Senate Minority Leader Schumer opposing the proposal, building the Wall on the southern border.

Both sides engaged in Washington-style debate, important mostly to political actors there and to the national media. They engaged in the same old, insider blame game that completely ignores average people across the country. Instead, they jockeyed for position in the 2020 elections, but without 20-20 vision.

Trump used much the same anti-immigrant rhetoric that he first unveiled when he announced for president. His remarks repeated threats and events that were easily shown as untrue. Most important, he offered nothing new.

Pelosi and Schumer used much the same moralistic arguments against the Wall as they had been preaching for weeks. Most important, they offered nothing new.

Almost everybody shares real concern about immigration. The U.S. is a land built and enriched by immigrants. At the same time, there are reasonable worries about uncontrolled immigration of people who may be endangered in their home countries or seeking a better life. And we continue deferring action on the undocumented immigrants already in the country.

Trump has responded to legitimate issues and phony concerns, though he seems to think the Wall would solve all problems, while the Border Patrol, which supports him, thinks otherwise.

The Democrats have pounced on his making the Wall into his entire immigration policy and his refusal to end the government shutdown unless he gets it funded.

The American people outside the Washington Beltway have the right to believe the government is not listening to their desire for compromise and progress. The gap between posturing politicians and “us folks” grows wider.

Trump could have seized political control and public support if he had used his speech, not as a prelude to declaring a national emergency when there is none, but as the opening of a comprehensive immigration policy, including the Wall. He would then have been in a position to get his Wall while admitting it was not the full answer.

He might have laid out a policy involving both the Wall and other forms of border protection, helping Central American countries create conditions to remove the need to flee, and a plan leading to citizenship for immigrant children and long-term undocumented residents. Given the low expectations for his speech, that would have been stunning.

Trump would not only have kept his promise to his supporters for the Wall, but responded to a majority of Americans who favor a resolution of current immigration issues. He would not be trying to strike fear, but rather to offer a constructive way out.

Trump has gained a reputation for changing his objectives in the midst of a negotiation, a recipe for failure. A comprehensive proposal in the text of his well planned remarks could have fixed that.

He could also have agreed to end the shutdown if the Democrats would accept the basic outlines of his proposal and open negotiations.

What about the Democratic duo? Instead of limiting themselves to condemning the Trump policy, if he had not made such a proposal, they could have done so. Their tone should not have been relentless opposition, but offering a compromise almost sure to be popular. Instead of letting Trump set the tone of the debate, they could have risen above it.

In one key respect, both sides are missing the point. Wall or no Wall will not determine the outcome of the 2020 election. Voters want government to focus on pressing issues, not simply lurch from one election to the next. They don't like shutdowns as a political weapon no matter who is responsible.

One way to negotiate out of a stalemate is to “sweeten the pot.” If the debate is only about the Wall, nothing may happen about immigration or much else. Settling other immigration issues at the same time could make possible a deal on the Wall.

Both sides right now are remarkably short-sighted and focused more on their games than on the national interest. The missed opportunity of the national speeches can be revived.

‘The Art of the Deal’ fails: the Wall, Brexit

President Trump and British Prime Minister May have something in common.  They consider themselves adept at what Trump has famously called “the art of the deal.”

Relying on their self-confidence, each has made a promise they could not keep.  They lacked the skill to pull off promises that were, in fact, impossible to keep.  They enter 2019 facing the likelihood of failure.

For Trump, it is the Wall, a forbidding structure to be built along the border with Mexico to keep out all illegal Latino immigrants.  His promise to build the Wall and have the Mexicans pay for its cost was the cornerstone of his campaign and, along with tariffs, his presidency. 

Trump tried to induce the Mexican president at least to say, without discussing any details, that Mexico would pay.  Trump would set the hook and reel in the Mexican later.  But he was talking with the proud leader of an independent country, not a New York real estate mogul, who would hardly agree to pay for the Wall.

The Wall as a barrier to immigration could not accomplish what Trump promised.  Most unauthorized immigrants or asylum seekers do not enter the U.S. by illegally crossing the border.  They overstay visitor visas or cross at border control points.  As for Mexicans, more are returning home than entering.

Having made the political promise, Trump stuck with his commitment for the Wall.  His fallback was that American taxpayers would foot the bill.

The art of Trump’s deals never reckoned with Congress.  The Democrats would oppose him and some Republicans, against government spending and skeptical of the proposal, would not support it.  Congress was willing to add funding for border security, but not the Wall.

Hardly the model of a savvy negotiator, Trump threw a tantrum.  If you do not fund the Wall now, he threatened, I will shut down the federal government.  The Democrats could accept that result, since Trump said he would take the responsibility.  They would refuse him the political trophy he badly wanted for the 2020 campaign.

The Wall was an impractical and impossible promise.  While it pleased some of Trump’s supporters, he was unable to negotiate successfully with either Mexico or Congress.  His bullying did not work, bringing a shutdown.  Does it matter whose fault that was?

Just as the Wall was the symbol of an impossible American way to keep out non-white immigrants, the United Kingdom embarked on a similar effort with similar results. 

Many British disliked both the free entry of Eastern European workers and following rules made by international officials, both essential parts of the European Union.  Promised that quitting the EU would save money, end immigration and allow the U.K. to recover some of its imperial glory, a narrow majority voted to leave the EU.

Without knowing what kind of deal should result, the U.K. simply served notice it would leave by March.  May’s negotiator claimed that his country held all the cards, when, in fact, it had none.  The biggest problem was how to handle Ireland. 

The Good Friday agreement, negotiated under the leadership of Maine’s George Mitchell, had ended bloody conflict in Northern Ireland.  It was helped because both independent Ireland and the 

Northern Ireland, part of the U.K., are members of the EU, and have no economic border.  What would happen if the U.K. left the EU?

At the same time, the British learned that many campaign promises could not be kept.  Leaving the EU cost the U.K. money.  Foreign workers were needed, but they began moving out.  Financial institutions, vital to the British economy, began to make plans to transfer to the Continent.

May tried to negotiate a compromise deal, but she was forced to accept continued EU domination to keep some of the essential benefits of membership.  The EU did not want to make leaving so easy that other countries might be tempted.

Leaving the EU was a promise that cannot be kept – at least not without economic hardship.  Nobody had an idea about Ireland.  The alternative must boil down either to decide to remain in the EU or quit cold turkey with consequences that might even lead to renewed bloodshed.

Political promises are often made to be broken.  Telling voters what they want to hear is much easier than working to produce results.  It takes some courage for leaders to admit a mistake and move on to practical solutions.

Trump and May are learning that failing to understand the limits of negotiating could turn out to be the path to defeat.

Trump creates damaging uncertainty

The biggest problem facing the U.S. is not immigration, health care or a trade war.

It is uncertainty.

The inability of business leaders, pension fund managers, foreign government heads, Congress and individuals to count on usual practices and policies has created deep worries.

The stock market is not a reliable measure of all these concerns, but its deep decline reflects that uncertainty.  Even its recovery might do little to restore more confidence about the future.

The source of the uncertainty is President Trump.  He makes the abrupt changes in policy and disregards others – leaders of Congress, heads of foreign governments, economic chiefs.  Decisions are suddenly announced, often via Twitter.

Nowhere is this more evident than in Trump’s approach to the economy.  In business, he is accustomed to borrowing money to finance his real estate purchases.  He favors low interest for his business interests and has naturally become an advocate of the Federal Reserve keeping interest rates low.

The Fed has gradually raised interest rates from near zero, where they were set during the recession.  They remain at historically low levels.  But Trump blames falling stock prices on the modest rate increases and wants to fire the Fed chair, his own choice, in the mistaken belief he can change Fed policy.

The law intentionally makes Fed governors independent of political leaders.  Until now, no president has ever threatened to fire the Fed chair.  Trump’s menace and not the one-quarter-of- one-percent rate increase is a cause of market uncertainty and deep decline.

The partial government shutdown probably has little direct effect.  But the president’s insistence that the Democrats help him keep his signature campaign promise to build the Wall on the Mexican border creates uncertainty.  He allowed the shutdown when they would not agree to $5 billion for the Wall.

Why the uncertainty?  He had previously rejected the Democrats’ proposal of a full $25 billion for the Wall in return for creating a long path to citizenship for the children of illegal immigrants who had been raised in the U.S.  The shutdown was caused by uncertainty about just what deal he would accept.

He suddenly announced he would withdraw American troops in Syria. That has thrown the Middle East into turmoil and uncertainty about the future in Syria, because those troops were a check on both ISIS and the Russians.  He claimed victory over ISIS, “my only reason for being there during the Trump presidency.”

While he had the right to make the decision, he saw it in personal terms – “my only reason” – and not as a matter of national concern. That decision drove Secretary of Defense Mattis to give notice.  More uncertainty.

Then, when the media interpreted Mattis’ resignation letter as a rebuke of Trump, the president abruptly fired him, eliminating the possibility of an orderly transition in this most sensitive position.  More uncertainty.

Mattis was the latest in a parade of top Trump appointees to either quit or be fired.  Several cabinet agencies now lack confirmed leaders.  Trump is looking for his third chief of staff.  More uncertainty.

In trade, Trump appropriately took on China, which abuses its economic relationship with the U.S.  But he targeted all major American trading partners on the unbelievable grounds that their exports threatened U.S. national security. 

His attacks on allies, his failure to consult with them and his support for extreme right wing groups in their countries all create considerable worries in world affairs.  He has belittled them, even tossing a couple of pieces of candy to the German Chancellor to show his low regard for her.  More uncertainty.

He induced North Korea to suspend nuclear tests and missile launches and declared victory. Meanwhile, the secretive country built more launch facilities and a major nuclear test center.  

Trump’s declarations of success allowed China and Russia to ignore many of the sanctions on North Korea.  In Asia, more danger and uncertainty.

American voters say they want the two parties to cooperate to produce results. The recent criminal justice reform bill proves they can.  But the president repeatedly attacks the Democrats in the apparently mistaken belief he can intimidate them into going along with his demands.  They won’t.  More uncertainty.

Why should the average American care?

Uncertainty threatens the economy.  It will discourage investment, resulting in fewer jobs.  The worldwide trade war will cause price increases.  Government will be increasingly deadlocked.  As the stock market falls, pensions will lose value.  Risks abroad will increase and the U.S. will have to go it alone.

The only certainty may be the uncertainty Trump creates.

‘Elections have consequences’ – more partisan warfare

“Elections have consequences, Mr. President.”

Senate Democratic Leader Chuck Schumer reminded President Trump of that fact when they met to discuss border security.  He warned the president that politics in Washington will change as control of the House passes to the Democrats and his party’s Senate minority can stop many bills there.

Trump had enjoyed almost automatic support in Congress when both houses were under GOP control.  If he now thought he could sweet talk Democrats, the target of his most heated campaigning, to support him, Schumer would educate him on divided government.

Many Americans like the idea of divided government, believing it will promote compromise and produce needed legislation.  But Mr. Trump’s own party promptly revealed that belief was a mere illusion.  Politics is not about public service.  It is about power.  Politicians today don’t readily yield power.

In Michigan and Wisconsin, Democrats took governorships from the GOP.  In both states, Republican legislatures hastily passed laws stripping governors of their powers.  Outgoing Republican governors signed the bills. 

In the U.S. House of Representatives, where Republicans had whitewashed an investigation of Russian meddling in the 2016 elections, they still took time as they went out the door to hold more hearings on Hillary Clinton’s home email server.

The two states and the House may see the situation flip under the Democratic control.

The parties can cooperate.  The only congressional review of Russia’s 2016 election interference is being carried out by the Senate Intelligence Committee, where the two party leaders work together.  They are more worried by the threat to the American democracy than to either party.

But the general rule is partisan warfare.  Senate GOP Majority Leader Mitch McConnell whips Trump’s nominees onto federal district courts at an amazing pace, faster than ever before.  He wants no debate on them.  He is surely making some mistakes in his haste, but it is impossible to know who’s unqualified.

Like the Michigan and Wisconsin moves, he wants to reduce the Democrats’ future power should they win the presidency and other offices in 2020.  He blocked an Obama Supreme Court appointment, leaving a vacancy for more than a year, to await Trump appointees.

If there is any state where the consequences of elections were clear, it’s Maine.  There may have been no “blue wave” in the country, but there was one in Maine.  The governor and both Houses of the Legislature plus an added congressional seat are now under Democratic control.

The effect is immediate.  Governor-elect Janet Mills has named an experienced human services chief who is focused on, well, human services.  The new department head replaces a commissioner who seemed dedicated to reducing help for those in need.

Maine’s lesson may be that elections have consequences only when there’s a change in political control.  If the result is divided control, compromise may be more a matter of luck than responsiveness to the voters’ desire for results.

The next elections, less than two years away, may be a major test of Schumer’s message and Trump’s appeal.

The Republican Party is now largely Trump’s party, and he is expected to lead it into the campaign, unless he is derailed by his own actions.  Congressional and state candidates are likely to be his loyal supporters.  From the GOP viewpoint, the desired consequences would be more and better Trump.

The Democrats have a bigger tent, but can only have one presidential candidate.  Will they go with a candidate of change, like Sen. Bernie Sanders, or a more centrist leader, like Minnesota Sen. Amy Klobuchar or Ohio Sen. Sherrod Brown?  Either way, Democrats want to end up fully in charge.

There was one sleeper in this year’s elections, and it could produce the greatest consequences.  Following the 2020 elections, all states with two or more House members must redraw their congressional district lines to ensure each has the same population.  Traditionally, that is done by the legislature and governor.

In recent years, the GOP in states including Texas, North Carolina and Wisconsin has designed districts to its liking.  To avoid partisanship, under recent Supreme Court decisions, more states will let independent bodies set district lines.

If Democrats control state governments after 2020, they will run redistricting, influencing the composition of the House of Representatives for a decade.  This year, seven Democratic governors replaced Republicans, and they may be key players in drawing the new lines.  State legislative elections in 2020 will matter. 

Yes, Mr. President, elections have consequences.  We are about to find out the many ways that works.

“It’s the economy, stupid”—good news turns bad

“It’s the economy, stupid.”

That’s the famous quote attributed to a top Bill Clinton aide in 1992, when he was trying to come up with slogan for the presidential campaign.

It is still true.  While the focus may be on immigration or President Trump’s problems, the issue facing the U.S. and underlying the next campaign is the economy.

Trump claims and gains credit for great economic success for two reasons. 

The recovery from the deep recession has peaked in the first two years of his term.  He gets credit for it, though the low interest rates set by the Federal Reserve and the Obama-era stimulus got the recovery under way well before Trump took office.

Trump also is hailed for the tax cut.  Devised by congressional Republicans, he signed it into law.  It stimulated corporate profits and the stock market.  It gave taxpayers more spending money, boosting sales and cutting unemployment to the bone.  It did not pay for itself.

Economic growth will now begin to slow.  Given its size, the American economy cannot be fine-tuned.  Sometimes it heats up too quickly, causing inflation.  Sometimes, it grows slowly or idles, causing unemployment.  The natural swings are called the “business cycle.”

It now appears that the business cycle will soon decline from its sustained growth.  Through tax policy and the Fed’s money policy, the swing could be limited.  Trump, who was a major business borrower, prefers low rates and may be pleased with the Fed as it keeps rates down to fight the slowdown.

Added to the business cycle is uncertainty, which worries businesses and markets.  When they cannot enjoy confidence in economic policy, they tend to hold back, reducing activity and investment. 

Uncertainty makes planning ahead far more difficult.  Because the stock market is supposed to forecast the future, it may slump or grasp at varying signs from day to day.

Where are we now?  Trade and immigration policies are sending signals that create uncertainty.  Tax cuts have boosted the annual federal deficit, leaving no room to deploy more of them without cutting Social Security and Medicare, which looks politically impossible.

The U.S. has real trade issues with China, so has good reason to be tough.  But Trump seems to think that any American negative balance in trade in goods must be ended, and against all countries, not only with China.  “I am a tariff man,” he says. 

Trump focuses on trade in goods, not services or investment.  He sees the value of imported goods as a sign the exporting country is winning an economic war.  He ignores any offsetting value of U.S. exports.  He likes tariffs, because they bring in federal revenues, helping to offset the deficits from tax cuts.

He overlooks the impact on American exporters who immediately face retaliation from countries whose exports must pay higher tariffs.  American farmers see their soybeans rot and manufacturers lose equipment exports when other countries retaliate against Trump’s moves.

When the president threatens even higher tariffs, he breeds uncertainty among as U.S. exporters wait to see what happens.  They worry about their losses. When they worry, investors worry, and the stock market flutters and falls.  Pensions are dependent on the market and suffer, making retirement more risky.

Add the immigration situation.  It is likely that a majority of Americans worries about excessive, illegal immigration.  Stemming all immigration is a central element of Trump’s political appeal.  To prove his seriousness, he expels long-term productive contributors to the economy as both workers and consumers.

Low unemployment is appealing, but the country is reaching the point where jobs go unfilled for a lack of workers.  Blueberries, a major Maine product, went unharvested this year without migrant workers.

Some may worry about China displacing the U.S. as the world’s largest economic power. Not only are there a lot more Chinese, but U.S. anti-immigration policy would result in a gradual decline in the American population, reducing the size of the domestic market and the ability to produce for the world market.

Dealing with this range of economic issues is complicated and difficult.  Like it or not, the U.S. is part of a world economy.  Easy political promises may have easy popular appeal, bringing cheers from the crowd, but may prove impossible to fulfill.  There is no silver bullet. 

Isaac Newton, the great British physicist, found that every action has an equal and opposite reaction.  The task is to understand effects of actions.

Trump’s policy is “America First,” even if it isolates the country.  The reaction to “America First” may be economic chaos and decline.