More stories

  • in

    Talking to Voters From Both Parties

    More from our inbox:The Legality of a Vaccine Mandate for Businesses‘What Can Marriage Give Us?’  Mark Peterson for The New York TimesTo the Editor:Re “What Voters Really Think About the State of America” (Opinion, Jan. 8):The most upsetting article I’ve read recently regarding the events of Jan. 6, 2021, and its aftermath is the report on the focus groups’ comments about the state of America. I was familiar with polls showing that a majority of Republican voters believe the lies told by Donald Trump and echoed by elected officials and television activists like Tucker Carlson.But it is distressing to read that six of the eight Republicans in the focus group still believe that Mr. Trump won the election. And it is mind-blowing to read their comments about “how the Democrats invaded the White House” and were pushing Covid to keep mail-in ballots.The lies must be refuted loudly and continuously. Responsible media should give no airtime or newspaper space to anyone who does not first admit that the 2020 election was fair and the results were properly counted. Until the rank and file learn that our election was fair and honest and worked as it should, the “state of America” will remain in jeopardy.Roy GoldmanJacksonville Beach, Fla.To the Editor:I am an independent voter, and have been in my 60 years of voting. I was not too surprised at the outcomes of your two focus groups. I have many friends and family who are registered Democrats or Republicans and know their opinions all too well. I would have been interested in a third group of independent voters. Maybe in the future you can incorporate this growing and important group of voters.Linda L. HortonAlbuquerqueEditors’ Note: Times Opinion plans to convene additional focus groups; the next will be with independent voters.To the Editor:I understand the purpose of your giving an opinion page over to average (whatever that means) Democrats and Republicans, but I nonetheless believe that The Times has missed the mark in doing so.The purpose of journalism is not to be evenhanded or to give equal size megaphones to “both sides.” The purpose of journalism is to tell the truth. Clearly one side is by and large telling the truth, whereas the other side appears quite delusional. And it’s telling that I don’t have to state which is which for people to know what I mean.The Times can and should do better for its readers.Jonathan EngelNew YorkTo the Editor:If these interviews are supposed to help me understand the thinking of Republicans, you’ve failed.Reading what they think just made me angry — again! How some of them came up with their responses is totally beyond me, except I know they have unquestioningly accepted lies. That is what is frustrating, to hear those lies repeated over and over without any attempt on their part to use critical thinking.My stomach is churning and I’m sure my blood pressure has peaked. I can live, just barely, with the horrible mess the world is in, but I don’t need any help with my despair!Sara JoslinNew Cumberland, Pa.The Legality of a Vaccine Mandate for Businesses Jim Wilson/The New York TimesTo the Editor:Re “Top Court Leans Toward Blocking Vaccine Mandate” (front page, Jan. 8):Certain Supreme Court justices appear skeptical regarding the constitutionality of the Biden administration’s vaccine mandate for certain businesses. We should remember, however, that the court is not ruling on the constitutionality of that mandate, only on whether it should issue an injunction to prevent its being enforced while its constitutionality is being decided.In making a decision on whether an injunction should be issued, the justices would naturally want to consider the harm of issuing an injunction versus the harm of not issuing an injunction.Suppose they decided not to issue an injunction. What’s the worst that might happen? Well, some people who may not want to be vaccinated may get the lifesaving vaccine anyway.And if they do issue the injunction? Well, some people who do not want to be vaccinated may die.Seems pretty clear-cut to me.Stephen PolitBelmont, Mass.To the Editor:Dear Chief Justice Roberts,I respect the principle that limits on decision-making by federal agencies can be necessary and protective. This principle would be a vital response to an overly authoritarian executive branch.I urge you to uphold this principle — while making an exception for vaccine mandates.To return this national health issue to individual states and Congress — at this time of medical crisis and excessive cultural divide — will further politicize and undermine our nation’s ability to respond to this public health issue in a unified manner.Principles are vitally important. But wise and flexible leadership requires appropriate exceptions.Jared D. KassConcord, Mass.‘What Can Marriage Give Us?’  María MedemTo the Editor:Re “Divorce Doesn’t Have to Be Lonely,” by Kaitlyn Greenidge (Opinion guest essay, Sunday Review, Jan. 9):A widow of nine years after five decades of marriage, I know that you can go it alone. Not everyone needs to marry. But I ask, What can marriage give us? As an introvert and a writer, I prized private time. Marriage required compromise and working out problems instead of walking out.We had counseling several times, at which I learned that my little ego was as precious as his. Only in a relationship could I have learned how best to live in our world of rugged individualists. I assert myself more confidently, but also listen better.Diana MorleyTalent, Ore. More

  • in

    Why Joe Biden Needs More Than Accomplishments to Be a Success

    No president since Ronald Reagan has achieved a more ambitious domestic legislative agenda in his first year than Joe Biden. With a razor-thin congressional majority — far smaller than that of Barack Obama — President Biden has delivered two enormous spending bills, with another, the Build Back Better act, likely on its way. Elements of these bills will have a lasting effect on the economy into the next decade; they also push the country to the left.Every president since Reagan has tacked to the rightward winds set in motion by the conservative movement. Even Mr. Obama’s stimulus bill and the Affordable Care Act owed as much to conservative nostrums about the market and runaway spending as they did to liberal notions of fairness and equality. Mr. Biden has had to accommodate the demands of Senators Joe Manchin and Kyrsten Sinema, but their intransigence has not had nearly the constraining effect that the voices of austerity and market fetishism had on Bill Clinton or Mr. Obama.Yet over the past several months, Mr. Biden’s presidency has been dogged by a sense of failure. Critics, friendly and not so friendly, point to what he has not delivered — voting rights, immigration reform, a $15 federal minimum wage, labor law reform and a path to freedom from personal debt and fossil fuels. Democrats fear that Mr. Biden’s plummeting approval ratings and the party’s losses in the November elections indicate that the Republicans will take back Congress in the midterms.No president, however, achieves his entire agenda. And presidents have suffered first-term losses greater than those currently anticipated for 2022.The real cause of the unease about Mr. Biden lies elsewhere. There is a sense that however large his spending bills may be, they come nowhere near to solving the problems they are meant to address. There is also a sense that however much in control of the federal government progressives may be, the right is still calling the shots.The first point is inarguable, especially when it comes to climate change and inequality. The second point is questionable, but it can find confirmation in everything from a conservative Supreme Court supermajority to the right’s ability to unleash one debilitating culture war after another — and in the growing fear that Republicans will ride back into the halls of power and slam the doors of democracy behind them, maybe forever.There’s a sense of stuckness, in other words, that no amount of social spending or policy innovation can seem to dislodge. The question is: Why?A prisoner of great expectationsThough it came out in 1993, Stephen Skowronek’s “The Politics Presidents Make” helps us understand how Mr. Biden has become a prisoner of great expectations.American politics is punctuated by the rise and fall of political orders or regimes. In each regime, one party, whether in power or not, dominates the field. Its ideas and interests define the landscape, forcing the opposition to accept its terms. Dwight Eisenhower may have been a Republican, but he often spoke in the cadences of the New Deal. Mr. Clinton voiced Reaganite hosannas to the market.Regimes persist across decades. The Jeffersonian regime lasted from 1800 to 1828; the Jacksonian regime, from 1828 to 1860; the Republican regime, from 1860 to 1932; the New Deal order, from 1932 to 1980.Reagan’s market regime of deference to the white and the wealthy has outlasted two Democratic presidencies and may survive a third. We see its presence in high returns to the rich and low wages for work, continents of the economy cordoned off from democratic control and resegregated neighborhoods and schools. Corporations are viewed, by liberals, as more advanced reformers of structural racism than parties and laws, and tech billionaires are seen as saviors of the planet.Eventually, however, regimes grow brittle. Their ideology no longer speaks to the questions of the day; important interests lose pride of place; the opposition refuses to accept the leading party and its values.Every president presides over a regime that is either resilient or vulnerable. That is his situation. When Eisenhower was elected, the New Deal was strong; when Jimmy Carter was elected, it was weak. Every president is affiliated or opposed to the regime. That is his story. James Knox Polk sought to extend the slavocracy, Abraham Lincoln to end it. The situation and the story are the keys to the president’s power — or powerlessness.When the president is aligned with a strong regime, he has considerable authority, as Lyndon Johnson realized when he expanded the New Deal with the Great Society. When the president is opposed to a strong regime, he has less authority, as Mr. Obama recognized when he tried to get a public option in the Affordable Care Act. When the president is aligned with a weak regime, he has the least authority, as everyone from John Adams to Mr. Carter was forced to confront. When the president is opposed to a weak regime, he has the greatest authority, as Thomas Jefferson, Andrew Jackson, Lincoln, Roosevelt and Reagan discovered. These presidents, whom Mr. Skowronek calls reconstructive, can reorder the political universe.All presidents are transformative actors. With each speech and every action, they make or unmake the regime. Sometimes, they do both at the same time: Johnson reportedly declared that with the passage of the Civil Rights Act of 1964, the Democrats had lost the South for a generation, thereby setting the stage for the unraveling of the New Deal.What distinguishes reconstructive presidents from other presidents, even the most transformative like Johnson, is that their words and deeds have a binding effect on their successors from both parties. They create the language that all serious contestants for power must speak. They construct political institutions and social realities that cannot be easily dismantled. They build coalitions that provide lasting support to the regime. Alexander Hamilton thought every president would “reverse and undo what has been done by a predecessor.” Reconstructive presidents do that — in fact, they reverse and undo the work of many predecessors — but they also ensure that their heirs cannot.Politics is not physics. A president opposed to the established order may seek to topple it, only to discover that it is too resilient or that his troops are too feeble and lacking in fight. Where we are in political time — whether we are in a reconstructive moment, ripe for reordering, or not — cannot be known in advance. The weakness or strength of a regime, and of the opposition to the regime, is revealed in the contest against it.What is certain is that the president is both creature and creator of the political world around him. Therein lies Mr. Biden’s predicament.The language of reconstructionHeading into the 2020 Democratic primaries, many people thought we might be in a reconstructive moment. I was one of them. There was a popular insurgency from the left, heralding the coming of a new New Deal. It culminated in the Nevada caucus, where people of color and young voters — an emergent multiracial working class — put Bernie Sanders over the top, ready to move the political order to the left.There also were signs that the Reagan regime was vulnerable. Donald Trump’s candidacy in 2016 suggested that conservative orthodoxies of slashing Social Security and Medicare and waging imperial warfare no longer compelled voters. Mr. Trump’s presidency revealed a congressional G.O.P. that could not unite around a program beyond tax cuts and right-wing judges.As a candidate, Mr. Biden rejected the transformation Mr. Sanders promised and assured wealthy donors that “nothing would fundamentally change” on his watch. Yet there were signs, after he won the nomination and into the early months of his administration, of a new, “transformational” Mr. Biden who wanted to be the next F.D.R. The combination of the Covid economy, with its shocking inequalities and market failures, and a summer of fire and flood seemed to authorize a left-leaning politics of permanent cash supports to workers and families, increased taxes on the rich to fund radical expansions of health care, elder care and child care, and comprehensive investments in green energy and infrastructure, with high-paying union jobs.Most important, the package cohered. Instead of a laundry list of gripes and grievances, it featured the consistent items of an alternative ideology and ascendant set of social interests. It promised to replace a sclerotic order that threatens to bury us all with a new order of common life. This was that rare moment when the most partisan of claims can sound like a reasonable defense of the whole.Yet while Mr. Biden has delivered nearly $3 trillion in spending, with another $1.5 trillion to $2 trillion likely to pass, he has not created a new order. In addition to a transformation of the economy, such an order would require a spate of democracy reforms — the elimination of the filibuster and curbing of partisan gerrymandering, the addition of new states to the union, and national protection of voting rights and electoral procedures — as well as labor law reforms, enabling workers to form unions.What makes such reforms reconstructive rather than a wish list of good works is that they shift the relations of power and interest, making other regime-building projects possible. Today’s progressive agenda is hobbled less by a lack of popular support than by the outsize leverage conservatives possess — in the Senate, which privileges white voters in sparsely populated, often rural states; in the federal structure of our government, which enables states to make it difficult for Black Americans to vote; and in the courts, whose right-wing composition has been shaped by two Republican presidents elected by a minority of the voters. No progressive agenda can be enacted and maintained unless these deformations are addressed.The only way to overcome anti-democratic forces is by seeding democracy throughout society, empowering workers to take collective action in the workplace and the polity, and by securing democracy at the level of the state. That is what the great emblems of a reconstructive presidency — the 14th Amendment, which granted Black Americans citizenship, or the Wagner Act, which liberated workers from the tyranny of employers — are meant to do. They give popular energy institutional form, turning temporary measures of an insurgent majority into long-term transformations of policy and practice.It’s not clear that Mr. Biden wants such a reconstruction. And even if he did, it’s not clear that he could deliver it.What is stopping Biden?The forces arrayed against a reconstruction are many.The first is the Republican Party. Here the party has benefited less from the “authoritarian” turn of Mr. Trump than from the fact that the Trump presidency was so constrained. As Mr. Skowronek argues, “Nothing exposes a hollow consensus faster than the exercise of presidential power.” At critical moments, exercising power was precisely what Mr. Trump was not able to do.Confronting the free fall of the New Deal, Mr. Carter unleashed a stunning strike of neoliberal and neoconservative measures: deregulation of entire industries; appointment of the anti-labor Paul Volcker to the Fed; a military buildup; and renewed confrontation with the Soviet Union. These defied his party’s orthodoxies and unraveled its coalition. Reagan ended the New Deal regime, but Mr. Carter prepared the way.For all his talk of opposition to the Republican pooh-bahs, Mr. Trump delivered what they wanted most — tax cuts, deregulation and judges — and suffered defeat when he tried to break out of their vise. Republicans repeatedly denied him funds to support his immigration plans. They overrode his veto of their military spending bill, something Congress had not been able to do in the Carter, Reagan, Clinton, George W. Bush and Obama administrations. Mr. Trump’s own administration defied his Russia policy. This combination of weakness and deference to the G.O.P. helped keep the Republicans — and the Reagan regime — together.The second obstacle is the Democratic Party. There’s a reason party elites, led by Mr. Obama, swiftly closed ranks, when the time came, behind Mr. Biden and against Mr. Sanders. They wanted continuity, not rupture.Likewise a portion of the base. Many Democrats are older, with long memories and strong fears of what happens when liberals turn left (they lose). Newer recruits, who gave Mr. Biden the edge in some key districts, usually in the suburbs, are what the Princeton historian Matt Karp calls “Halliburton Democrats,” wealthy defectors from the Republican Party.“A regime is only as vulnerable as the political forces challenging it are robust,” writes Mr. Skowronek. That robustness is yet to be demonstrated. Despite the clarity of the path the Democrats must take if they hope to topple the Reagan order, it’s not clear the party wants to take it.The third obstacle to a Biden reconstruction is what Mr. Skowronek calls the “institutional thickening” of American politics. Since the founding era, the American political system has acquired a global economy, with the dollar as the world’s currency; a government bureaucracy and imperial military; a dense ecology of media technologies; and armies of party activists. While these forces offer the modern president resources that Jefferson never had, they also empower the modern-day equivalents of Jefferson’s opponents to resist a reconstruction. Should Mr. Biden attempt one, could he master the masters of social media? Mr. Trump tried and was banned from Twitter.The real institutions that get in the way of Mr. Biden and the Democrats, however, are not these latter-day additions of modernity but the most ancient features of the American state.The power of Senators Manchin and Sinema is an artifact of the constitutional design of the Senate and the narrowness of the Democratic majority, which itself reflects the fact that the institution was created to defend slave states rather than popular majorities. Their power is augmented by the centuries-old filibuster, which has forced Mr. Biden to jam many programs into one vaguely named reconciliation bill. That prevents him from picking off individual Republicans for pieces of legislation they might support (as he did with the infrastructure bill).Should the Republicans take the House in 2022, it will probably not be because of Tucker Carlson but because of gerrymandering. Should the Republicans take back the White House in 2024, it will probably be because of some combination of the Electoral College and the control that our federalist system grants to states over their electoral procedures.A polarized electorate divided into red and blue states is not novel; it was a hallmark of the last Gilded Age, which put the brakes on the possibility of a presidential reconstruction for decades. As the political scientist E.E. Schattschneider argued, the division of the country into the Republican North and Democratic South made the entire polity “extremely conservative because one-party politics tends strongly to vest political power in the hands of people who already have economic power.”How do we move past Reagan?Every reconstructive president must confront vestiges of the old regime. The slavocracy evaded Lincoln’s grasp by seceding; the Supreme Court repeatedly thwarted F.D.R. Yet they persisted. How?What each of these presidents had at their back was an independent social movement. Behind Lincoln marched the largest democratic mass movement for abolition in modern history. Alongside F.D.R. stood the unions. Each of these movements had their own institutions. Each of them was disruptive, upending the leadership and orthodoxies of the existing parties. Each of them was prepared to do battle against the old regime. And battle they did.Social movements deliver votes to friendly politicians and stiffen their backs. More important, they take political arguments out of legislative halls and press them in private spaces of power. They suspend our delicate treaties of social peace, creating turbulence in hierarchical institutions like the workplace and the family. Institutions like these need the submission of subordinate to superior. By withholding their cooperation, subordinates can stop the everyday work of society. They exercise a kind of power that presidents do not possess but that they can use. That is why, after Lincoln’s election, Frederick Douglass called the abolitionist masses “the power behind the throne.”An independent social movement is what Mr. Biden does not have. Until he or a successor does, we may be waiting on a reconstruction that is ready to be made but insufficiently desired.Corey Robin is a distinguished professor of political science at Brooklyn College and the City University of New York Graduate Center. He is the author of “The Reactionary Mind: Conservatism From Edmund Burke to Donald Trump” and “The Enigma of Clarence Thomas.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

  • in

    Supreme Court's Abortion Decision Could Spill Into Midterm Elections

    Both sides anticipate that a Supreme Court decision scaling back abortion rights would roil next year’s elections, with Democrats sensing an advantage.WASHINGTON — A Supreme Court ruling to weaken or overturn the landmark Roe v. Wade decision in the middle of next year’s midterm election campaign would immediately elevate abortion rights into a defining issue and most likely reinvigorate efforts to overhaul the court itself.Even as the justices weigh the case of the Mississippi law barring most abortions after 15 weeks, the political clash is already intensifying, with Democrats warning supporters that the court is poised to reverse access to abortion 50 years after it was recognized as a constitutional right.“What is fundamentally at stake is that every woman in our country should be able to make her own health care decisions and chart her own destiny and have the full independence to do that,” said Senator Maggie Hassan, Democrat of New Hampshire, who is seeking re-election in a race with significant implications for control of the Senate.As the court heard arguments in the Mississippi case on Wednesday, it appeared that the six conservative justices were likely to uphold the state’s law despite the precedent set in 1973 by Roe, which held that states could not bar abortion before fetal viability, now judged to be around 22 to 24 weeks.Several of the justices suggested that they were willing to go another step and overturn Roe entirely, leaving states free to impose whatever bans or restrictions they choose. The court is likely to release its decision in the case at the end of its term in June or early July, just as campaigning in the midterms is getting into full swing.While the subject of abortion and the Supreme Court has traditionally been seen as more of an energizing issue for Republican and evangelical voters, Democrats say that situation could be reversed should the court undermine Roe, raising the possibility that abortion could be banned or severely limited in many states.That outcome, Democrats said, would transform the long fight over abortion rights from theory to reality and give new resonance to their arguments that a Democratic Congress is needed to protect access to the procedure and seat judges who are not hostile to abortion rights.Senator Maggie Hassan of New Hampshire and fellow Democrats have repeatedly criticized state Republicans for cutting off funding to Planned Parenthood and instituting new abortion restrictions.Anna Moneymaker/The New York Times“There is no question that should the decision be one that would overturn Roe v. Wade, it will certainly motivate our base,” said Senator Gary Peters of Michigan, the chairman of the Democratic Senatorial Campaign Committee. “Quite frankly, we know that a majority of the people in this country continue to believe it should be the law of the land.”“It will be an incredibly powerful issue,” Mr. Peters said.Republicans see advantages as well, saying it will validate their decades-long push to limit if not outlaw abortion and show that they should not back away from their efforts when they are succeeding.“Today is our day,” Representative Steve Scalise of Louisiana, the No. 2 House Republican, told abortion opponents outside the Supreme Court on Wednesday. “This is what we’ve been working for.”Aware that a decision undermining abortion access has political risks for them as well, Republicans say the fight will be just part of their 2022 message as they seek to tie Democrats to inflation, the chaotic withdrawal from Afghanistan and other subjects where they see a greater edge.“There’s a lot of issues out there,” said Senator Rick Scott, Republican of Florida and the chairman of the National Republican Senatorial Committee, suggesting the significance of abortion will vary from state to state. “Everybody’s going to take a position.”But it was quickly clear that some Republicans would embrace the drive against Roe.“I’m pro-life. I’m anti-Roe v. Wade,” Senator John Kennedy, the Louisiana Republican who is seeking a second term next year, said in a fund-raising appeal sent hours after the court debate. “There is not much else I can say other than that.”In addition to the congressional elections, how the justices dispose of the case holds potentially grave implications for the court itself. The stature and credibility of the court were prominent subtexts of Wednesday’s arguments, with Justice Sonia Sotomayor pointedly asking how the court would “survive the stench” of overturning Roe in what many would see as a blatantly political act.Representative Steve Scalise, Republican of Louisiana, in September. “Today is our day,” he told abortion opponents outside the Supreme Court on Wednesday.Stefani Reynolds for The New York TimesAfter Senate Republicans in 2016 blocked President Barack Obama from filling a Supreme Court vacancy with almost a year left in his term, progressives began calling for adding seats to the court or setting term limits on the now-lifetime appointments to offset what they saw as an unfair advantage seized by Republicans. Then, when Republicans seated Justice Amy Coney Barrett just days before the 2020 election, those calls intensified.However, President Biden, a former chairman of the Senate Judiciary Committee, has been lukewarm to the idea of tinkering with the court, and a commission he formed to study the idea is not expected to embrace significant changes.Understand the Supreme Court’s Momentous TermCard 1 of 5Mississippi abortion law. More

  • in

    Swift Ruling in Jan. 6 Case Tests Trump's Tactic of Delay

    The former president has leveraged the slow judicial process in the past to thwart congressional oversight, but the Jan. 6 case may be different.WASHINGTON — On the surface, a judge’s ruling on Tuesday night that Congress can obtain Trump White House files related to the Jan. 6 riot seemed to echo another high-profile ruling in November 2019. In the earlier matter, a judge said a former White House counsel must testify about then-President Donald J. Trump’s efforts to obstruct the Russia investigation.In both cases, Democratic-controlled House oversight committees issued subpoenas, Mr. Trump sought to stonewall those efforts by invoking constitutional secrecy powers, and Obama-appointed Federal District Court judges — to liberal cheers — ruled against him. Each ruling even made the same catchy declaration: “presidents are not kings.”But there was a big difference: The White House counsel case two years ago had chewed up three and a half months by the time Judge Ketanji Brown Jackson issued a 120-page opinion to end its first stage. Just 23 days elapsed between Mr. Trump’s filing of the Jan. 6 papers lawsuit and Judge Tanya Chutkan’s ruling against him.The case, which raises novel issues about the scope of executive privilege when asserted by a former president, is not over: Mr. Trump is asking an appeals court to overturn Judge Chutkan’s ruling and, in the interim, to block the National Archives from giving Congress the first set of files on Friday. The litigation appears destined to reach the Supreme Court, which Mr. Trump reshaped with three appointments.But if the rapid pace set by Judge Chutkan continues, it would mark a significant change from how lawsuits over congressional subpoenas went during the Trump era.The slow pace of such litigation worked to the clear advantage of Mr. Trump, who vowed to defy “all” congressional oversight subpoenas after Democrats took the House in the 2018 midterm. He frequently lost in court, but only after delays that ran out the clock on any chance that such efforts would uncover information before the 2020 election.So alongside the substantive issues about executive privilege, one key question now is whether Mr. Trump can again tie the matter up in the courts long enough that even a Supreme Court ruling against him would come too late for the special committee in the House that is seeking the Trump White House documents for its investigation into the Jan. 6 riot.Specifically, the Jan. 6 committee has demanded detailed records about Mr. Trump’s every movement and meeting on the day of the assault, when Mr. Trump led a “Stop the Steal” rally and his supporters then sacked the Capitol in an attempt to block Congress from certifying Mr. Biden’s Electoral College victory.The chairman of the committee, Representative Bennie Thompson, Democrat of Mississippi, has said he wants to wrap up by “early spring.” In that case, the committee would need access to the files it has subpoenaed by late winter for that information to be part of any report.Legally, the committee could continue working through the rest of 2022. If Republicans retake the House in the midterm election, the inquiry would very likely end.What happens next in the Jan. 6 White House files case may turn on the inclinations of whichever three judges from the U.S. Court of Appeals for the District of Columbia Circuit are randomly assigned to the panel that will hear Mr. Trump’s appeal.Of the court’s 11 full-time judges, seven are Democratic appointees — including Judge Jackson, whom Mr. Biden elevated earlier this year — and four are Republican appointees, including three named by Mr. Trump. The circuit also has five “senior status” judges who are semiretired but sometimes get assigned to panels; four of those five are Republican appointees.If the D.C. Circuit declines, as Judge Chutkan did, to issue a preliminary injunction, Mr. Trump will presumably immediately appeal to the Supreme Court via its so-called shadow docket, by which the justices can swiftly decide emergency matters without full briefs and arguments.If a stay is granted at either level, the question would shift to whether the D.C. Circuit panel echoes Judge Chutkan’s decision to move quickly in light of the circumstances, or throttles back to the slower pace it tended to follow on such cases when Mr. Trump was president.Notably, in another Trump-era case, involving access to financial papers held by his accounting firm, Mazars USA, the Federal District Court judge assigned to that matter, Amit Mehta, was sensitive to the timing implications and took less than a month after the case was filed in April 2019 to hand down his opinion that Congress could get the records.But a D.C. Circuit panel took about five more months before reaching that same result — a nominal win for Congress — in October 2019. Mr. Trump then appealed to the Supreme Court, which waited until July 2020 to send the case back down to Judge Mehta to start the litigation over again using different standards.Separately, House Democrats have introduced legislation in response to the Trump presidency that would, among many other things, speed up lawsuits to enforce congressional subpoenas for executive branch information. Two people familiar with the matter said House Democratic leaders have indicated they plan to hold a floor vote on that bill before the end of 2021, though no date has been set; its prospects in the Senate are unclear.A related important difference in secrecy disputes between the Trump era and the Jan. 6 White House papers case is that when Mr. Trump was president, his administration controlled the executive branch files Congress wanted to see.Today, President Biden has refused to join Mr. Trump in invoking executive privilege, instead instructing the National Archives to give Congress the files unless a court orders otherwise. As a result, when it comes to government files, the default has flipped from secrecy to disclosure.During the phase of the lawsuit before Judge Chutkan, she signaled that she was averse to judicial delay. During arguments last week, she rejected a suggestion by a lawyer for Mr. Trump that she examine each document before deciding whether executive privilege applied.Representative Bennie Thompson, the chairman of the Jan. 6 committee, has said he wants the investigation to wrap up by “early spring.”Al Drago for The New York Times“I don’t see any language in the statute or any case that convinces me that where a previous president disagrees with the incumbent’s assertion of privilege, that the court is required to get involved and do a document-by-document review,” she said, adding:“Wouldn’t that always mean that the process of turning over these records, where the incumbent has no objection, would slow to a snail’s pace? And wouldn’t that be an intrusion by this branch into the executive and legislative branch functions?”Understand the Claim of Executive Privilege in the Jan. 6. InquiryCard 1 of 8A key issue yet untested. More

  • in

    Judge Rejects Trump’s Bid to Keep Papers Secret in Jan. 6 Inquiry

    But a Trump lawyer has signaled an intent to appeal the ruling, which raises novel issues about an ex-president’s executive privilege powers.WASHINGTON — A federal judge on Tuesday night rejected a bid by former President Donald J. Trump to keep secret papers about his actions and conversations leading up to and during the Jan. 6 attack on the Capitol by his supporters.In a 39-page ruling, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia held that Congress’s constitutional oversight powers to obtain the information prevailed over Mr. Trump’s residual secrecy powers — especially because the incumbent, President Biden, agreed that lawmakers investigating the Jan. 6 riot should see the files.Mr. Trump “does not acknowledge the deference owed to the incumbent president’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity,’” Judge Chutkan wrote. “But presidents are not kings, and plaintiff is not president.”Mr. Trump retained the right to assert that his records were privileged, she added, but Mr. Biden was not obliged to honor that assertion. The incumbent president, she said, is better situated to protect executive branch interests, and Mr. Trump “no longer remains subject to political checks against potential abuse of that power.”The ruling does not necessarily mean that the National Archives will turn over the materials to the House committee investigating Jan. 6 any time soon. The case raises novel issues about the scope and limits of a former president’s executive privilege authority, and it is likely that it will ultimately be resolved by the Supreme Court.In a posting on Twitter, Taylor Budowich, a spokesman for Mr. Trump, said the case was destined to be appealed. He said Mr. Trump was committed to defending the right of past presidents — as well as present and future ones — to assert executive privilege and “will be seeing this process through.”The Jan. 6 committee has demanded that the National Archives and Records Administration turn over detailed records about Mr. Trump’s every movement and meeting on the day of the assault, when Mr. Trump led a “Stop the Steal” rally and his supporters then sacked the Capitol in an attempt to block Congress from certifying Mr. Biden’s Electoral College victory.Mr. Trump — who pursued a strategy of stonewalling all congressional oversight subpoenas while in office, running out the clock on such efforts before the 2020 election — has instructed his former subordinates to defy subpoenas from the Jan. 6 committee and filed a lawsuit seeking to block the National Archives from turning over files from his White House.Last week, Judge Chutkan, a 2014 Obama appointee, had signaled skepticism about Mr. Trump’s legal arguments. Mr. Trump’s lawyer asserted that his residual executive privilege powers meant the courts should block Congress from subpoenaing the files, notwithstanding Mr. Biden’s decision not to assert executive privilege over them in light of the circumstances.Mr. Trump’s lawyer had argued that the public interest would be served by letting Mr. Trump keep the documents secret to preserve executive branch prerogatives. But Judge Chutkan wrote that his arguments did not “hold water” in light of Mr. Biden’s support for making them public and Congress’s need to investigate the attack without undue delays.Congress and the Biden administration, she noted, “contend that discovering and coming to terms with the causes underlying the Jan. 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. The court agrees.”Earlier this week, Mr. Trump’s lawyer, Jesse R. Binnall, demonstrated an intent to keep going by asking Judge Chutkan to impose an emergency injunction on the National Archives barring it from turning over the records while he appealed the matter to the U.S. Court of Appeals for the District of Columbia Circuit.Understand the Supreme Court’s Momentous TermCard 1 of 5The Texas abortion law. More

  • in

    Biden and the Democrats Are on the Verge of … Something

    A Secret Service agent gestures as Marine One takes off.Oliver Contreras for The New York TimesGail Collins: Hey, Bret, the holiday season is almost upon us — if you presume we start off with Halloween, which is one of my favorites. Are you going to be dressing up as any famous person for parties?Bret Stephens: Well, I once went to a Halloween bash dressed as Picasso’s Blue Period — I’ll leave the details of the costume to your imagination — but that was in high school. I guess I could go as Edvard Munch’s “The Scream,” assuming you showed up as Kevin McCarthy.I’m referring, of course, to the House minority leader’s latest effort to make Liz Cheney’s life as unpleasant as possible.Gail: Yeah, the House Republicans are certainly going out of their way to try to torture her. I guess they’re shocked by her desire to actually investigate the folks who tried to attack the nation’s Capitol on Jan. 6. Who’d have thought a member of their party would be so picky?Now she’s got a Trump-backed primary challenger. What do you think her prospects for political survival are at this point?Bret: My knowledge of Wyoming politics is, um, not great. But I’m guessing that Cheney’s re-election chances aren’t great, either. I think that, at best, she can lay down a marker for the future, proving that at least some Republicans refused to participate in the cult of Il Duce wannabes. Good for her, but what America really needs is another party that stands for classically liberal values like free speech, free markets and free societies.Gail: Bret, are you talking about a … third party? That would certainly give us opportunities for a lot of vigorous arguing.Bret: Well, the third party I have in mind would probably do more to split Republicans than Democrats, so maybe you might warm to it. I just want to wrest a remnant of thoughtful conservatism out of the maw of Trumpism. The alternative is that Donald Trump and his minions become the default every time Democrats stumble.Gail: People need to feel they’re voting for the best real option, not just registering their alienation. The problem with third parties is that terrible accidents can happen. Ralph Nader’s run in 2000 took the election away from Al Gore and gave it to George W. Bush. Which was not his intention, although possibly something you appreciated.Bret: Just as you no doubt appreciated Ross Perot taking a few million votes from George H.W. Bush in 1992.In the meantime, Gail, how are you feeling about the leaner Joe Biden — the one who looks like he went on the budgetary equivalent of the Jenny Craig diet by shedding about $1.6 trillion?Gail: About Bidenism-lite — you mean the new Sinema-Manchin version? I can see how Biden had to do something to get those two onboard, but the idea that Joe Manchin, servant of the coal industry, was dictating compromises on climate change, and the utterly compromised Kyrsten Sinema was torpedoing tax rate increases for corporations and the wealthy, is deeply depressing.Bret: The good news from your point of view is that the downsized plan appears to keep universal preschool education and national child care. The good news from my point of view is that it costs less and corporate taxes may not be raised. Democrats may also come to appreciate that getting rid of some of the climate provisions to force companies to move to clean energy sources may not be the worst thing, politically speaking, when energy prices are already going up, up, up.Gail: Well, politically speaking, you do have a point about the climate provisions’ chances. We’ll survive, but it’s going to leave future generations stuck with the weather that comes with global warming.Bret: There’s no good climate solution unless China and India step up. The best thing the United States can probably do right now is invest more in natural gas, which is much cleaner than coal and much more reliable than wind or solar.On the whole, I think the slimmed-down Biden package thing could be a winner all around. Here I return to my basic principle that the No. 1 priority is to keep Trump from ever returning to the White House, which first requires some legislative victories that are popular with the public.Gail: It’s a wonder what Trump has done to rational Republicans. If I’d showed you the Biden agenda 10 years ago, don’t imagine you’d have seen it as something you’d be rooting for in 2021.Bret: The things I never imagined a decade ago that I’d someday be rooting for could probably fill a book, starting with my vote for Hillary Clinton. Also didn’t imagine I’d be agreeing with a dissent by Justice Sonia Sotomayor while worrying about a Supreme Court over-dominated by conservative justices.Gail: Do you think that Texas abortion law is going to last long? I’m hoping the Supreme Court, even in its current conservative condition, is going to be appalled by the part that has the general public doing the enforcement. Via do-it-yourself lawsuits against the abortion providers and anyone who helps them, down to drivers who bring the patients to clinics.I hear this kind of thing is a new conservative trend. Care to explain?Bret: There are two abortion laws at issue here. There’s the case out of Texas, regarding Senate Bill 8, which bans virtually all abortions after six weeks or so and delegates enforcement to private citizens rather than state officials. The bill was written that way because it was an attempt to get around judicial review, which typically requires a state official to be a defendant.Gail: I keep envisioning folks running into family planning clinics screaming “citizen’s arrest!”Bret: The court made a bad mistake by failing twice to enjoin the Texas law. But I’m betting it will still overturn it because the alternative is a license to vigilantes everywhere to deny people their constitutional rights, which could also include “conservative” rights like the right to bear arms — in a blue state.But then there’s another abortion case out of Mississippi, based on a law banning most abortions after 15 weeks. That’s a more clear challenge to Roe v. Wade, and it’s the one we should be really thinking about.Gail: You know, Texas politicians are great at doing spectacularly awful things that make headlines. But meanwhile, Mississippi always seems to be able to be much worse without anybody noticing.Bret: The conservatives on the court will do themselves and their cause irreparable harm if they uphold the Mississippi law and overturn Roe. There will be a renewed push to pack the court with new justices. It will turn access to abortion into a real force for Democrats in purple states and help them in the midterms. It will probably push Stephen Breyer to retire now to ensure he can be succeeded by a liberal justice. It will do a lot to help the Democratic ticket in 2024. And it will push Congress to seek legislative means to curb the court’s authority.Overturning Roe might wind up being conservatism’s biggest Pyrrhic victory since Richard Nixon’s re-election.Gail: Hey, we’ve been agreeing for a while now. Let’s get back to Biden. How did you like his town hall the other night?Bret: I felt like I was holding my breath half the time, hoping he’d be able to complete his sentences. Most of the time he did. But some of the lapses — like declaring that it was U.S. policy to come to Taiwan’s defense in case of attack, when it isn’t — were disturbing because they’re potentially so consequential.Gail: He did seem a bit lost toward the beginning, standing there with his fists clenched — he looked as if he was holding invisible ski poles. And he’s never going to be a wowser as a public speaker.But for the most part his answers all made sense, he was personable with the crowd, and, given the crazy scene he’s dealing with in Washington, I thought overall he made a good impression.Bret: The line that I keep hearing from people who have known Biden over the years is that he’s “lost a step.” The same could probably have been said about Ronald Reagan in his second term, and he still managed to have real successes, like comprehensive immigration reform, a major tax reform, better ties with the Soviet Union and the “Tear Down This Wall” speech in 1987, just two years before the Berlin Wall fell.Biden’s performance is still much preferable to Trump’s, who kept his step but lost his mind. Even so, it worries me. Voters notice, even if much of the press is too polite to mention it.Gail: Reagan’s second term was really scary. If Biden runs again, we’ll all have good reason to debate whether he’s too age-limited. But right now, he seems to be well in control, even if you don’t like all his policy choices.Love your Trump line, by the way.Bret: Thank you. And that reminds me: Please be sure to read The Times’s Book Review section celebrating its 125 birthday. My favorite feature is a sampling of letters to the editor, including one reader’s criticism of Henry James’s prose: “By bad,” the reader wrote, “I mean unnatural, impossible, overdrawn as to the characters, and written in a style which is positively irritating.”Gives me hope, Gail.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

  • in

    Supreme Court Focuses on Procedure in Kentucky Abortion Case

    After the state’s political landscape shifted in 2019, the Democratic governor and the Republican attorney general disagreed on defending the law.WASHINGTON — The Supreme Court heard arguments in an abortion case on Tuesday, but the issue for the justices was a procedural one: Could Kentucky’s attorney general, a Republican, defend a state abortion law when the governor, a Democrat, refused to pursue further appeals after a federal appeals court struck down the law?As the argument progressed through a thicket of technical issues, a majority of the justices seemed inclined to say yes.“Kentucky maybe ought to be there in some form, and the attorney general is the one that wants to intervene,” Chief Justice John G. Roberts Jr. said.More important abortion cases are on the horizon. In December, the court will hear arguments on whether to overrule Roe v. Wade in a case concerning a Mississippi law banning most abortions after 15 weeks. And the justices have been asked to take another look at a Texas law that prohibits most abortions after six weeks, which the court allowed to go into effect last month by a 5-to-4 vote.Tuesday’s case, Cameron v. EMW Women’s Surgical Center, No. 20-601, concerned a Kentucky law that challengers said effectively banned the most common method of abortion in the second trimester of pregnancy, dilation and evacuation. The justices barely discussed the law during Tuesday’s argument.Rather, they focused on the tangled history of the case and the complicated jurisdictional and procedural questions that arose from it.The case started in 2018, when the state’s only abortion clinic and two doctors sued various state officials to challenge the law. The state’s attorney general at the time, Andy Beshear, a Democrat, said his office was not responsible for enforcing the law and entered into a stipulation dismissing the case against him, agreeing to abide by the final judgment and reserving the right to appeal.The state’s health secretary, who had been appointed by a Republican governor, defended the law in court. A federal trial court struck the law down, saying it was at odds with Supreme Court precedent. The health secretary appealed, but the attorney general did not.While the case was moving forward, Kentucky’s political landscape shifted. Mr. Beshear, who had been attorney general, was elected governor. Daniel Cameron, a Republican, was elected attorney general.Mr. Beshear appointed a new health secretary, Eric Friedlander, who continued to defend the law on appeal. But after a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, affirmed the trial judge’s ruling, Mr. Friedlander declined to seek review from the full appeals court or the Supreme Court.Mr. Cameron, the new attorney general, sought to intervene in the appeals court, saying he was entitled to defend the law. The appeals court denied his request, ruling that it had come too late.On Tuesday, the justices probed the significance of the stipulation and the standards for when appeals courts should allow parties to intervene in the late stages of a case.Justice Clarence Thomas, who has taken to asking the first questions during arguments, said “there isn’t much law” on the appropriate standards.Justice Sonia Sotomayor said the Sixth Circuit was entitled to take account of the fact that the attorney general had failed to file an appeal after losing in the trial court, notwithstanding the later election of a new attorney general.“Why would we call it an abuse of discretion for a court of appeals, after it’s rendered its judgment, to say we don’t really care what has happened in the political arena?” she asked.Matthew F. Kuhn, a lawyer for Mr. Cameron, said his client was acting in a different capacity when he sought to intervene. He was now, Mr. Kuhn said, representing the interests of the state.About 45 minutes into the argument, Justice Stephen G. Breyer described what he said was really going on the case. “First the Republicans are in, then the Democrats are in,” he said, “and they have different views on an abortion statute.”What to Know About the Supreme Court TermCard 1 of 5A blockbuster term begins. More

  • in

    Read the document

    39 tabulation of ballots within a State. Bush II, 531 U.S. at 107. 163. The actions set out in Paragraphs __-__, __-__, __-__, __-__, __-__, and __-__ created differential voting standards in Defendant States Pennsylvania, Arizona, Georgia, Michigan, Nevada, and Wisconsin in violation of the Equal Protection Clause. COUNT III: EQUAL PROTECTION (ONE MAN, ONE VOTE) 164. Plaintiff State repeats and re-alleges the allegations of paragraphs 1-163, above, as if fully set forth herein. 165. The one-man, one-vote principle of this Court’s Equal Protection cases requires counting valid votes and not counting invalid votes. Reynolds, 377 U.S. at 554-55; Bush II, 531 U.S. at 103 (“the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements”). 166. The actions set out in Paragraphs __-__, __-__, __-__, __-__, __-__, and __-__ violated the one- man, one-vote principle by systemically excluding valid votes and those set out in Paragraphs __-__, __- __, __-__, __-__, __-__, and __-__ violate that principle by systemically including invalid votes in Defendant States Pennsylvania, Arizona, Georgia, Michigan, Nevada, and Wisconsin, in violation of the Equal Protection Clause. COUNT IV: DUE PROCESS (INTENTIONAL NONCOMPLIANCE) 167. Plaintiff State repeats and re-alleges the allegations of paragraphs 1-__, above, as if fully set forth herein. More