2024 Election, Politics

Confronting a False Choice

Neither the Republican or Democratic platforms contain the slightest promise of approaching the great problems of today either with understanding or good faith; and yet never was their a greater need in this nation than now of understanding and of action taken in good faith, on the part of the men and the organizations shaping our governmental policy.

Theodore Roosevelt accepting the presidential nomination of the Progressive Party, August 6, 1912

As we approach the 2024 election, the US is in the midst of funding two major wars and trying to effectively deter a third. Ukraine’s defense against the Russian invasion has faltered due a reconstituted and more deadly Russian military as well as the delay in aid. Israel’s war against Hamas is taking a toll on both Palestine’s and Israel’s future.  Meanwhile, China expands its threats in the Western Pacific towards not only Taiwan, but also the Philippines. Here at home, the federal government’s apparent impotence in the face of economic inequality and an influx of 7 million illegal immigrants feeds a disillusion with our constitutional democracy that divides the nation.   

At this perilous time in our history, we enter a presidential election where polls show a majority of voters worry about President Biden’s obvious physical and mental frailties. The only current alternative, Donald Trump, is equally elderly, increasingly mentally unhinged and facing criminal trials in four jurisdictions. If your close your eyes and just listen to the two of them, their campaign messages are identical – the “other guy” is mentally incompetent and an existential threat to democracy. I am no conspiracy theorist (see this), but Biden and Trump increasingly look like mere figureheads for other agendas having little relationship to the real issues facing the nation. The legitimacy of our democracy depends on flushing out those issues, as difficult as they may be, into the open so the American people can decide, not just isolated elites.

Part of Trump’s agenda in this election is obvious.  He is running for his life from the very real possibility of becoming a convicted felon and thus losing not only money, but also his freedom in prison. His first act as President would be to order the dismissal of the federal charges against him.  After this, his motives become murkier.  It may simply be the further enrichment of himself and his family while catering to his supporter’s lowest impulses. Trump has once again taken hard lines against immigration and the border invasion that cannot be achieved without congressional approval. His failure to achieve meaningful long-term reform during his previous stint in office belies the likelihood of any substantive change.  Instead, he talks of being a “dictator for a day”, a goal which shows his utter disregard for the democracy he claims to be defending and inability to unite the nation behind any goal see this.

Meanwhile, Biden appears primarily engaged in trying to hold a fractious Democratic Party together to “save democracy” from a Trump victory at any price. This means that he has to unite moderate and traditionally liberal Democrats with the increasingly powerful democratic socialist or “progressive” base of the party. He tries to paper over the differences by buying their support with billions of federal dollars in flagrant disregard of the effect on America’s long term financial stability.  His foreign policy uses the same strategy, where billions to Ukraine, Israel and climate change projects vainly try to preserve American unipolar hegemony. Meanwhile, he further divides the nation by offering tacit and occasionally vocal support for identity-group grievances against everyone else. But are these the ends or simply a means to insulate an isolated international elite from the consequences of their greed?

This website began as a call to national unity in the face of the rise of nationalism elsewhere in the world and the challenges it creates here at home. James Strock, a member of the Board of Advisors of the Theodore Roosevelt Association, recently pointed out that half of the world will be voting in elections this year and, whether it is the US, Russia, or India, it is really nationalism, not democracy, that is on the ballot. He correctly argues that only a genuine American nationalism that addresses our own divisions while respecting the differences of other nations can renew our democracy and enable us to succeed in an increasingly multipolar world (See this post on his “ The Next Nationalism” Substack). Building such a modern American nationalism will require a clear understanding of the choices we must make as a people in the reality of the current world. As we approach the upcoming elections. I will be highlighting the choices we Americans must face. 

2024 Election, General, Politics

Congress Must Act to Avoid an Ugly Finale to the November Election

The Colorado and Maine decisions to strike former President Trump’s name from the ballot on Fourteenth Amendment grounds have injected a dangerously destabilizing issue in an election already riven with suspicion and rancor.  Trump has now filed an appeal of the Colorado decision with the US Supreme Court, but similar challenges are still pending in 17 other states. The American people deserve a quick and thorough resolution of the issue by not only the Court, but also by the Congress as well

The good news is that the Court has scheduled oral argument on the case for February 8, an extraordinarily expedited process that shows it is well aware of the importance of resolving the case as soon as possible. As a result, it will probably issue a decision by May.

The bad news is that any such decision will only resolve the main legal issues in the case and not the ultimate factual issue of whether Trump “engaged in insurrection” or gave aid and comfort to one on January 6, 2021 and thus should be barred from the presidential ballot. Former Attorney General Bill Barr accurately pointed out the deficiencies in the original trial at the district court, which lasted only five days and was largely based on hearsay evidenceAny real trial that could develop a sufficient record for a final decision would take months. The record in the Colorado case clearly fails that test.

However, there are crucial legal issues that the Colorado case raises on which the Court can rule and help speed the resolution of this litigation: 

  • Is the office of President subject to the prohibition of section 3 of the Fourteenth Amendment?
  • Did the Colorado courts have jurisdiction to hear and adjudicate the issue or is the prohibition essentially only enforceable by Congress after the election?
  • Is a conviction for insurrection required before application of the ban?

While not directly raised by the appeal, the Court should take the opportunity to state what the standard of proof should be for a suit under Section 3. Is it the preponderance of the evidence standard usually used in civil cases or the higher “clear and convincing” standard required in fraud and similar cases?   

I believe the Court will likely hold that (1) the president is subject to Section 3; (2) the courts have jurisdiction; but (3) reverse and remand the case to the Colorado courts for a full trial on the merits, hopefully with an instruction on which standard of proof to use. Thus, far from being resolved, this legal controversy will continue to fester through and possibly after the 2024 election.

Here’s where it becomes ugly. While the Supreme Court can eliminate these initial issues, this means the various challenges at the state level will continue through the election.  A final decision may not even be reached before the November election. Thus, in November American voters would have to choose between Joe Biden with all of his physical infirmities and unpopularity, and a candidate who may be disqualified from assuming office at any time during the election. If Trump nevertheless wins, he may then be refused office despite the results.  We would see an unprecedented constitutional crisis that deprives the new president of any legitimacy and cripples the nation during one of the most perilous series of domestic and international crises in American history.

This issue must be settled promptly and before the November election. Moreover, it is too important to be decided in piecemeal fashion at the state court level. Congress has the power to avoid this chaos by providing that Section 3 claims be brought exclusively before a three-judge federal court with any appeal going directly to the Supreme Court. This process already exists for certain civil rights cases under 28 USC Section 2284.  The applicability of Section 3 to a presidential candidate certainly involves a fundamental constitutional right. However, it would still require an amendment to the current statute to implement it.  Congress should immediately pass legislation to apply Section 2284 to Fourteenth Amendment Section 3 claims to save the country from the pain a prolonged, fractious litigation of this issue would inflict on our already fragile political system. 

General, Politics

Happy 165th Birthday, TR !

In a time when many of our leaders lack courage and a commitment to the American people, Theodore Roosevelt stands out even more as beacon for the nation. He not only talked the talk of American patriotism, but lived it in his life. The American people deserve leaders who do the same, but, in the end, it all begins with us. We will get the same kind of leadership that Theodore Roosevelt provided when we demand it. It’s all up to us!