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      The 14th Amendment Disqualification Was Not Meant for Trump

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      Challenges to disqualify Donald Trump from the office of president under Section 3 of the 14th Amendment are popping up all over the country. On Thursday, the secretary of state of Maine ruled that Mr. Trump would be ineligible for the state’s primary ballot, a decision that can be appealed to the state’s Supreme Court. On Wednesday, the Michigan Supreme Court ruled narrowly that the state will allow Mr. Trump to stay on the primary ballot — but left open a potential future challenge to his inclusion on a general-election ballot.But so far only one — the Colorado Supreme Court’s ruling that bars Mr. Trump from the primary ballot — has reached the doorstep of the U.S. Supreme Court.The Supreme Court should take the case and reverse the Colorado Supreme Court ruling, and do so for the very reason cited by the Colorado judges. According to the Colorado court (itself quoting an earlier, unrelated case), Section 3 should be interpreted “in light of the objective sought to be achieved and the mischief to be avoided.”That is exactly right. The Colorado court failed, however, to follow its own advice.When Congress passed the 14th Amendment, there wasn’t a person in the Senate or House who worried about loyal Americans electing a former rebel like Jefferson Davis as president. Instead, Republicans feared that the leaders of the late rebellion would use their local popularity to disrupt Republican Reconstruction policy in Congress or in the states. Section 3 expressly addressed these concerns and did so without denying loyal Americans their right to choose a president.To date, much of the debate over Section 3 has focused on whether the president is an “officer” who takes an “oath.” This is an issue in the second part of the provision. What neither scholars nor courts have yet focused on is first part of Section 3. The threshold issue is whether the framers and ratifiers thought that the president holds a “civil” office “under the United States.” This is a much more specific and historically difficult question.Here are the key opening words of Section 3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State …”The text begins by expressly naming offices that rebel leaders might conceivably secure for themselves on the basis of their local popularity. The greatest fear was that these rebels would return to Congress and join Northern Democrats in thwarting Republican Reconstruction policy.As Representative Thaddeus Stevens warned his colleagues, without a properly worded Section 3, “that side of the House will be filled with yelling secessionists and hissing copperheads” — a reference to Northern Democrats who had opposed the Civil War. It was possible that a coalition of Southern and Northern Democratic presidential electors would nominate a “hissing copperhead.”Congressional Republicans were so concerned about mischief in the Electoral College that they delayed the passage of the 14th Amendment in order to make sure the issue was properly addressed. The Joint Committee’s draft of Section 3 prohibited rebels from voting for presidential electors, but this left open an enormous loophole. As Representative John Longyear pointed out, this prohibition would be “easily evaded by appointing electors of President and Vice President through their legislatures.”Senator Jacob Howard agreed that Section 3 would not “prevent state legislatures from choosing rebels as presidential electors,” and he led the effort to rewrite Section 3 in a manner that closed the loophole. The result is the final version that prohibits leading rebels from serving as presidential electors, whether elected or appointed.The only reason to secure a trustworthy Electoral College is in order to secure a trustworthy president. So Section 3 focuses on state-level decision making. It expressly addresses three key positions where leading rebels might use their remaining popularity to disrupt Republican Reconstruction: the Senate, the House of Representatives and state-selected presidential electors.Radical Republicans like Thaddeus Stevens would have gone further and completely disenfranchised anyone who had participated in the rebellion, leader or not. Moderate Republicans, however, were more optimistic. As Senator Daniel Clark noted, once leading rebels were removed, “those who have moved in humble spheres [would] return to their loyalty and to the Government.”The strategy worked. In 1868, despite the scattered participation of former rebel soldiers as presidential electors, Southern Black voters helped elect the Republican Ulysses S. Grant over the Democrat Horatio Seymour.It is possible to read Section 3 as impliedly including the office of president as one of the “civil” offices “under the United States” covered by the general catchall provision. It would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers, but the text is ambiguous enough to make this a possible reading.However, if the framers meant the catchall provision to include both presidents and postmasters, they were remarkably negligent. According to longstanding congressional precedent and legal authority, the phrase “civil office under the United States” did not include the office of president of the United States. As Joseph Story explained in his influential “Commentaries on the Constitution of the United States,” the congressional precedent known as “Blount’s Case” established that the offices of president, senator and representative were not civil offices under the government of the United States — they were the government of the United States. The phrase “civil office under the United States” referred to appointed offices.In addition to legal authority, there is also common sense to guide us. The text of Section 3 is structured in a manner that moves from high federal office to low state office, and the apex federal political offices are expressly named. As the former Attorney General Reverdy Johnson explained, “the specific exclusion in the case of Senators and Representatives” led him to initially presume that the framers excluded the office of president. Johnson accepted a colleague’s suggestion to the contrary, but if the text created such a presumption in the mind of a former attorney general, it is reasonable to think it may have created the same presumption in the minds of ratifiers.Actually, we have no idea whether the ratifiers shared Johnson’s initial presumption. This is because no one has discovered a single example of any ratifier discussing whether Section 3 included the office of president of the United States. Despite extraordinary efforts by researchers, no one has yet found evidence that any ratifier even considered the possibility that Section 3 abridged the people’s right to choose their president.The silence of the ratifiers on this point is important. Those favoring the disqualification of Mr. Trump insist that there is nothing “anti-democratic” about constraining the presidential choices of the national electorate. The Constitution, after all, contains a number of provisions that deny the people the right to elect whomever they wish. Article II, Section One, for example, prevents the people from electing anyone who is under age 35 or who is a foreign-born candidate.Those qualifications are expressly declared in the text and they received robust vetting and debate in the ratifying conventions. In the case of Section 3, the Supreme Court is being asked to impose new constraints on the democratic process by way of textual implication and in the absence of any public debate whatsoever.Such a reading is neither democratically appropriate nor textually necessary. And it was most certainly not “the objective sought to be achieved [or] the mischief to be avoided” by Section 3.At best, the text of Section 3 is ambiguous regarding the office of president. The Supreme Court should limit the clause to its historically verifiable meaning and scope.Let the people make their own decision about Donald Trump.Kurt Lash, a professor at the University of Richmond School of Law, is the author of, most recently, “The Reconstruction Amendments: Essential Documents” and the forthcoming “A Troubled Birth of Freedom: The Struggle to Amend the Constitution in the Aftermath of the Civil War.”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, Instagram, TikTok, X and Threads. More

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      A Trump Conviction Could Cost Him Enough Voters to Tip the Election

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      Recent general-election polling has generally shown Donald Trump maintaining a slight lead over President Biden. Yet many of those polls also reveal an Achilles’ heel for Mr. Trump that has the potential to change the shape of the race.It relates to Mr. Trump’s legal troubles: If he is criminally convicted by a jury of his peers, voters say they are likely to punish him for it.A trial on criminal charges is not guaranteed, and if there is a trial, neither is a conviction. But if Mr. Trump is tried and convicted, a mountain of public opinion data suggests voters would turn away from the former president.Still likely to be completed before Election Day remains Special Counsel Jack Smith’s federal prosecution of Mr. Trump for his alleged scheme to overturn the 2020 election, which had been set for trial on March 4, 2024. That date has been put on hold pending appellate review of the trial court’s rejection of Mr. Trump‘s presidential immunity. On Friday, the Supreme Court declined Mr. Smith’s request for immediate review of the question, but the appeal is still headed to the high court on a rocket docket. That is because the D.C. Circuit will hear oral argument on Jan. 9 and likely issue a decision within days of that, setting up a prompt return to the Supreme Court. Moreover, with three other criminal cases also set for trial in 2024, it is entirely possible that Mr. Trump will have at least one criminal conviction before November 2024.The negative impact of conviction has emerged in polling as a consistent through line over the past six months nationally and in key states. We are not aware of a poll that offers evidence to the contrary. The swing in this data away from Mr. Trump varies — but in a close election, as 2024 promises to be, any movement can be decisive.To be clear, we should always be cautious of polls this early in the race posing hypothetical questions, about conviction or anything else. Voters can know only what they think they will think about something that has yet to happen.Yet we have seen the effect in several national surveys, like a recent Wall Street Journal poll. In a hypothetical matchup between Mr. Trump and Mr. Biden, Mr. Trump leads by four percentage points. But if Mr. Trump is convicted, there is a five-point swing, putting Mr. Biden ahead, 47 percent to 46 percent.In another new poll by Yahoo News-YouGov, the swing is seven points. In a December New York Times-Siena College poll, almost a third of Republican primary voters believe that Mr. Trump shouldn’t be the party’s nominee if he is convicted even after winning the primary.The damage to Mr. Trump is even more pronounced when we look at an important subgroup: swing-state voters. In recent CNN polls from Michigan and Georgia, Mr. Trump holds solid leads. The polls don’t report head-to-head numbers if Mr. Trump is convicted, but if he is, 46 percent of voters in Michigan and 47 percent in Georgia agree that he should be disqualified from the presidency.It makes sense that the effect is likely greater in swing states: Those are often places where a greater number of conflicted — and therefore persuadable — voters reside. An October Times/Siena poll shows that voters in the battleground states of Arizona, Georgia, Michigan, Nevada and Pennsylvania favored Mr. Trump, with President Biden narrowly winning Wisconsin. But if Mr. Trump is convicted and sentenced, Mr. Biden would win each of these states, according to the poll. In fact, the poll found the race in these six states would seismically shift in the aggregate: a 14-point swing, with Mr. Biden winning by 10 rather than losing by four percentage points.The same poll also provides insights into the effect a Trump conviction would have on independent and young voters, which are both pivotal demographics. Independents now go for Mr. Trump, 45 percent to 44 percent. However, if he is convicted, 53 percent of them choose Mr. Biden, and only 32 percent Mr. Trump.The movement for voters aged 18 to 29 was even greater. Mr. Biden holds a slight edge, 47 percent to 46 percent, in the poll. But after a potential conviction, Mr. Biden holds a commanding lead, 63 percent to 31 percent.Other swing-state polls have matched these findings. In a recent survey in The Atlanta Journal-Constitution, for example, 64 percent said that they would not vote for a candidate whom a jury has convicted of a felony.National polls also offer accounts of potential unease. In a Yahoo News poll from July, 62 percent of respondents say that if Mr. Trump is convicted, he should not serve as president again. A December Reuters-Ipsos national poll produced similar results, with 59 percent of voters overall and 31 percent of Republicans saying that they would not vote for him if he were convicted.New data from our work with the Research Collaborative confirm the repercussions of a possible conviction on voters. These questions did not ask directly how a conviction would affect people’s votes, but they still support movement in the same direction. This survey, conducted in August and repeated in September (and then repeated a second time in September by different pollsters), asked how voters felt about prison time in the event that Mr. Trump is convicted. At least two-thirds (including half of Republicans) favored significant prison time for Mr. Trump.Why do the polls register a sharp decline for Mr. Trump if he is convicted? Our analysis — including focus groups we have conducted and viewed — shows that Americans care about our freedoms, especially the freedom to cast our votes, have them counted and ensure that the will of the voters prevails. They are leery of entrusting the Oval Office to someone who abused his power by engaging in a criminal conspiracy to deny or take away those freedoms.We first saw this connection emerge in our testing about the Jan. 6 hearings; criminality moves voters significantly against Mr. Trump and MAGA Republicans.But voters also understand that crime must be proven. They recognize that in our legal system there is a difference between allegations and proof and between an individual who is merely accused and one who is found guilty by a jury of his peers. Because so many Americans are familiar with and have served in the jury system, it still holds sway as a system with integrity.Moreover, recent electoral history suggests that merely having Mr. Trump on trial will alter how voters see the importance of voting in the first place. In the wake of the Jan. 6 committee hearings, the 2022 midterms saw turnout at record levels in states where at least one high-profile MAGA Republican was running.The criminal cases are also unfolding within a wider context of other legal challenges against Mr. Trump, and they may amplify the effect. That includes several state cases that seek to disqualify him under Section 3 of the 14th Amendment. Colorado’s top court has already ruled that he is disqualified, though the case is now likely being appealed to the Supreme Court. This constellation of developments — also encompassing the New York civil fraud trial — offer a negative lens through which Americans may view Mr. Trump.Again, this is all hypothetical, but the polls give us sufficient data to conclude that felony criminal convictions, especially for attacking democracy, will foreground the threat that Mr. Trump poses to our nation and influence voters in an election-defining way.Norman Eisen was special counsel to the House Judiciary Committee for the first impeachment and trial of Donald Trump. Celinda Lake is a Democratic Party strategist and was a lead pollster for Joe Biden’s 2020 presidential campaign. Anat Shenker-Osorio is a political researcher, campaign adviser and host of the “Words to Win By” podcast.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, Instagram, TikTok, X and Threads. More

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      Red Sea Shipping Halt Is Latest Risk to Global Economy

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      Next year could see increasing volatility as persistent military conflicts and economic uncertainty influence voting in national elections across the globe.The attacks on crucial shipping traffic in the Red Sea straits by a determined band of militants in Yemen — a spillover from the Israeli-Hamas war in Gaza — is injecting a new dose of instability into a world economy already struggling with mounting geopolitical tensions.The risk of escalating conflict in the Middle East is the latest in a string of unpredictable crises, including the Covid-19 pandemic and the war in Ukraine, that have landed like swipes of a bear claw on the global economy, smacking it off course and leaving scars.As if that weren’t enough, more volatility lies ahead in the form of a wave of national elections whose repercussions could be deep and long. More than two billion people in roughly 50 countries, including India, Indonesia, Mexico, South Africa, the United States and the 27 nations of the European Parliament, will head to the polls. Altogether, participants in 2024’s elections olympiad account for 60 percent of the world’s economic output.In robust democracies, elections are taking place as mistrust in government is rising, electorates are bitterly divided and there is a profound and abiding anxiety over economic prospects.A ship crossing the Suez Canal toward the Red Sea. Attacks on the Red Sea have pushed up freight and insurance rates.Mohamed Hossam/EPA, via ShutterstockA billboard promoting presidential elections in Russia, which will take place in March.Dmitri Lovetsky/Associated PressEven in countries where elections are neither free nor fair, leaders are sensitive to the economy’s health. President Vladimir V. Putin’s decision this fall to require exporters to convert foreign currency into rubles was probably done with an eye on propping up the ruble and tamping down prices in the run-up to Russia’s presidential elections in March.The winners will determine crucial policy decisions affecting factory subsidies, tax breaks, technology transfers, the development of artificial intelligence, regulatory controls, trade barriers, investments, debt relief and the energy transition.A rash of electoral victories that carry angry populists into power could push governments toward tighter control of trade, foreign investment and immigration. Such policies, said Diane Coyle, a professor of public policy at the University of Cambridge, could tip the global economy into “a very different world than the one that we have been used to.”In many places, skepticism about globalization has been fueled by stagnant incomes, declining standards of living and growing inequality. Nonetheless, Ms. Coyle said, “a world of shrinking trade is a world of shrinking income.”And that raises the possibility of a “vicious cycle,” because the election of right-wing nationalists is likely to further weaken global growth and bruise economic fortunes, she warned.A campaign rally for former President Donald J. Trump in New Hampshire in December.Doug Mills/The New York TimesA line of migrants on their way to a Border Patrol processing center at the U.S.-Mexico border. Immigration will be a hot topic in upcoming elections.Rebecca Noble for The New York TimesMany economists have compared recent economic events to those of the 1970s, but the decade that Ms. Coyle said came to mind was the 1930s, when political upheavals and financial imbalances “played out into populism and declining trade and then extreme politics.”The biggest election next year is in India. Currently the world’s fastest-growing economy, it is jockeying to compete with China as the world’s manufacturing hub. Taiwan’s presidential election in January has the potential to ratchet up tensions between the United States and China. In Mexico, the vote will affect the government’s approach to energy and foreign investment. And a new president in Indonesia could shift policies on critical minerals like nickel.The U.S. presidential election, of course, will be the most significant by far for the world economy. The approaching contest is already affecting decision-making. Last week, Washington and Brussels agreed to suspend tariffs on European steel and aluminum and on American whiskey and motorcycles until after the election.The deal enables President Biden to appear to take a tough stance on trade deals as he battles for votes. Former President Donald J. Trump, the likely Republican candidate, has championed protectionist trade policies and proposed slapping a 10 percent tariff on all goods coming into the United States — a combative move that would inevitably lead other countries to retaliate.Mr. Trump, who has echoed authoritarian leaders, has also indicated that he would step back from America’s partnership with Europe, withdraw support for Ukraine and pursue a more confrontational stance toward China.Workers on a car assembly line in Hefei, China. Beijing has provided enormous incentives for electric vehicles.Qilai Shen for The New York TimesA shipyard in India, which is jockeying to compete with China as the world’s largest manufacturing hub.Atul Loke for The New York Times“The outcome of the elections could lead to far-reaching shifts in domestic and foreign policy issues, including on climate change, regulations and global alliances,” the consulting firm EY-Parthenon concluded in a recent report.Next year’s global economic outlook so far is mixed. Growth in most corners of the world remains slow, and dozens of developing countries are in danger of defaulting on their sovereign debts. On the positive side of the ledger, the rapid fall in inflation is nudging central bankers to reduce interest rates or at least halt their rise. Reduced borrowing costs are generally a spur to investment and home buying.As the world continues to fracture into uneasy alliances and rival blocs, security concerns are likely to loom even larger in economic decisions than they have so far.China, India and Turkey stepped up to buy Russian oil, gas and coal after Europe sharply reduced its purchases in the wake of Moscow’s invasion of Ukraine. At the same time, tensions between China and the United States spurred Washington to respond to years of strong-handed industrial support from Beijing by providing enormous incentives for electric vehicles, semiconductors and other items deemed essential for national security.A protest in Yemen on Friday against the operation to safeguard trade and protect ships in the Red Sea.Osamah Yahya/EPA, via ShutterstockThe drone and missile attacks in the Red Sea by Iranian-backed Houthi militia are a further sign of increasing fragmentation.In the last couple of months, there has been a rise in smaller players like Yemen, Hamas, Azerbaijan and Venezuela that are seeking to change the status quo, said Courtney Rickert McCaffrey, a geopolitical analyst at EY-Parthenon and an author of the recent report.“Even if these conflicts are smaller, they can still affect global supply chains in unexpected ways,” she said. “Geopolitical power is becoming more dispersed,” and that increases volatility.The Houthi assaults on vessels from around the world in the Bab-el-Mandeb strait — the aptly named Gate of Grief — on the southern end of the Red Sea have pushed up freight and insurance rates and oil prices while diverting marine traffic to a much longer and costlier route around Africa.Last week, the United States said it would expand a military coalition to ensure the safety of ships passing through this commercial pathway, through which 12 percent of global trade passes. It is the biggest rerouting of worldwide trade since Russia’s invasion of Ukraine in February 2022.Claus Vistesen, chief eurozone economist at Pantheon Macroeconomics, said the impact of the attacks had so far been limited. “From an economic perspective, we’re not seeing huge increase in oil and gas prices,” Mr. Vistesen said, although he acknowledged that the Red Sea assaults were the “most obvious near-term flashpoint.”Uncertainty does have a dampening effect on the economy, though. Businesses tend to adopt a wait-and-see attitude when it comes to investment, expansions and hiring.“Continuing volatility in geopolitical and geoeconomic relations between major economies is the biggest concern for chief risk officers in both the public and private sectors,” a midyear survey by the World Economic Forum found.With persistent military conflicts, increasing bouts of extreme weather and a slew of major elections ahead, it’s likely that 2024 will bring more of the same. More

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      The Supreme Court’s Big Trump Test Is Here

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      A generation after the Supreme Court stepped into a disputed presidential election, America is experiencing a creeping sense of déjà vu. Twenty-three years ago, a bare majority of the justices halted a recount in Florida, effectively handing the presidency to George W. Bush.The specter of Bush v. Gore, the case that stands as a marker of how not to resolve searing political disputes, looms large as the Supreme Court is being called upon to address controversies with profound implications for the fortunes of the Republican front-runner in 2024.The justices are feeling the heat nearly a year in advance of an election rather than in the fraught weeks following the vote. The questions today are more complex — there are at least three separate matters, not one — and all revolve around the Capitol insurrection that transpired across the street from the Supreme Court Building in 2021.On Friday, the court turned down Special Counsel Jack Smith’s request for fast-track review of Donald Trump’s claim that former presidents have “absolute immunity” from criminal prosecution for their conduct while in office. But that critical question will almost certainly return to the Supreme Court soon: The D.C. federal appeals court is hearing the case on Jan. 9 and will probably rule shortly thereafter.The court has agreed to hear a case asking whether Jan. 6 rioters can be charged with obstructing an official proceeding, another key part of Mr. Smith’s Jan. 6 case against Mr. Trump. And most dramatically, the former president will surely ask the justices to reverse a ruling of the Colorado Supreme Court that, if affirmed, could pave the way for an untold number of states to erase his name from the ballot.For a tribunal that is supposed to sit far away from, not astride, politics, that’s a lot for the Supreme Court to handle. And this is happening at a rough moment for the court. In August 2000, on the eve of Bush v. Gore, 62 percent of Americans approved of how the Supreme Court was conducting itself. Now, recent polling shows that nearly that portion (58 percent) disapproves of the institution, a figure that scrapes historic lows for the court.Yet the multiplicity of cases affords the justices an opportunity to avoid pinning themselves in still further if they keep an eye on how potential decisions will — collectively — shape the political landscape. The point is not that getting the underlying legal questions “right” is irrelevant. But when the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum — or at least that avoid inciting violence in the streets. That’s not subverting the rule of law; it’s preserving it.Extraordinary times call for a court that embraces the art of judicial statecraft.The trap the court finds itself in is largely a function of its own behavior, both on and off the bench. The 6-to-3 conservative supermajority has radically expanded gun rights, circumscribed the Environmental Protection Agency’s ability to protect the environment, all but eviscerated race-based affirmative action, punched holes through the wall separating church from state and — most notoriously — eliminated the constitutional right to abortion. The past year has also seen increasing public scrutiny of the justices’ apparent ethical lapses, sunlight that pushed the justices to adopt their first code of ethics.A universe in which the court somehow splits the difference — for example, keeping Mr. Trump on the ballot while refusing to endorse (if not affirmatively repudiating) his conduct and spurning his kinglike claim to total immunity — could go a long way toward reducing the temperature of the coming election cycle. Such an outcome could also help restore at least some of the court’s credibility.We understand that trying too hard to project an image of nonpartisanship carries risks. Recent reporting on the twists and turns of how the conservative majority engineered the end of Roe v. Wade shows how curating rulings can make justices look too clever by half — if not outright deceptive. Delaying the grant of review in the Dobbs v. Jackson Women’s Health Organization case, in which some of the conservative justices apparently knew they had the votes to overrule Roe, created a false impression that the court was struggling over the matter — when the reality was anything but. Indeed, the Dobbs experience and its aftermath might have led some justices to sour on the idea of judicial statecraft — especially if their internal deliberations end up getting leaked to the press. No jurist wants to be seen as a cunning manipulator of public opinion.And yet, some of the court’s most important rulings across its history have represented just the kind of high constitutional politics that we believe are called for now. The court’s recognition of its power to strike down acts of Congress in Marbury v. Madison came in a context in which the direct effect of the ruling was to restrain the court while slapping the Jefferson administration on the wrist.Its concerted effort to produce unanimous opinions in some of the landmark civil rights cases of the 1950s and 1960s reflected a view that speaking in one voice was more important than the legal nuances of what was said. (This, perhaps, is why no justice publicly dissented from Friday’s decision not to fast-track the immunity question.)The court’s landmark rejection of President Richard Nixon’s executive privilege claim in the Watergate tapes case, which helped to directly precipitate Nixon’s resignation, came in a unanimous opinion written by Nixon’s handpicked chief justice.This is also the best way to understand Chief Justice John Roberts’s much-maligned 2012 vote in the first serious challenge to the Affordable Care Act — upholding the individual mandate as a tax while rejecting it as a valid regulation of interstate commerce.What those (and other) rulings have in common was the sense, across the Supreme Court, that the country would be better off with a court that took appropriate measure of how its rulings would be received beyond the details of the legal analysis the justices provided.The court failed that test in Bush v. Gore — handing down a ruling widely perceived as Republican-appointed justices installing a Republican president via a strained (and oddly cabined) reading of the Equal Protection Clause and helping to precipitate the downturn in public opinion that figures so prominently in these cases.As the Jan. 6 cases put the justices right in the middle of the 2024 election, the question is whether they’ll understand the imperative of not letting history repeat.Ultimately, these contemporary disputes may not provide a perfect opportunity for the Supreme Court to right that wrong. But if one thing’s for certain, it’s that neither the court nor the country can afford another election-altering ruling that takes such obvious partisan sides.Steven V. Mazie (@stevenmazie) is the author of “American Justice 2015: The Dramatic Tenth Term of the Roberts Court” and is the Supreme Court correspondent for The Economist. Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the One First weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”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, Instagram, TikTok, X and Threads. More

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      The Anti-Democratic Quest to Save Democracy from Trump

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      Let’s consider a counterfactual. In the autumn of 2016, with American liberalism reeling from the election of Donald Trump, a shattered Hillary Clinton embraces the effort to pin all the blame on Vladimir Putin.She barnstorms the country arguing that the election was fundamentally illegitimate because of foreign interference. She endorses every attempt to prove that Russian disinformation warped the result. She touts conspiracy theories that supposedly prove that voting machines in Wisconsin were successfully hacked. She argues that her opponent should not be allowed to take office, that he’s a possible Manchurian candidate, a Russian cat’s paw. And she urges Democrats in Congress and Vice President Joe Biden to refuse to certify the election — suggesting that it could somehow be rerun or even that patriotic legislators could use their constitutional authority to make her, the popular-vote winner, president instead.Her crusade summons up a mass movement — youthful, multiracial and left wing. On Jan. 6, 2017, a crowd descends on the National Mall to demand that “Trump the traitor” be denied the White House. Clinton stirs them up with an angry speech, and protesters attack and overwhelm the Capitol Police and surge into the Capitol, where one is shot by a police officer and the rest mill around for a while and finally disperse.The election is still certified, and Trump becomes president two weeks later. But he is ineffective and unpopular, and it looks as though Clinton, who is still denying his legitimacy, will be the Democratic nominee again. At which point right-wing legal advocacy groups announce an effort to have her removed from primary ballots, following the guidance of originalist scholars who argue that under the 14th Amendment, she has betrayed her senatorial oath by fomenting insurrection and is ineligible to hold political office.Is she?No doubt some readers, firm in the consistency required by the current effort to remove Trump from the 2024 presidential ballot, will bite the bullet and say that in this hypothetical scenario, yes, she is. Others will pick apart my attempted parallel — insisting, say, that it makes all the difference that Russia’s interference efforts were real, whereas the voter fraud claimed by Trump was not, or arguing that Trump’s conspiracy was more comprehensive than what I’ve just described.My view is that you can construct the analogy any way you like: Had Clinton explicitly tried to induce Congress to overturn the result of the 2016 race and had a left-wing protest on her behalf turned into a certification-disrupting riot, almost none of the people currently insisting that we need to take the challenge to Trump’s ballot access very seriously would be saying the same about a challenge to her eligibility. Instead, they would be accusing that challenge of being incipiently authoritarian, a right-wing attack on our sacred democracy.And they would have a point. Removing an opposition candidate from the ballot, indeed, a candidate currently leading in some polling averages (pending the economic boom of 2024 that we can all hope is coming), through the exercise of judicial power is a remarkably antidemocratic act. It is more antidemocratic than impeachment, because the impeachers and convicters, representatives and senators, are themselves democratically elected and subject to swift democratic punishment. It is more antidemocratic than putting an opposition politician on trial, because the voters who regard that trial as illegitimate are still allowed to vote for an indicted or convicted politician, as almost a million Americans did for Eugene V. Debs while he languished in prison in 1920.Sometimes the rules of a republic require doing antidemocratic things. But if the rule you claim to be invoking treats Jan. 6 as the same kind of event as the secession of the Confederacy, consider the possibility that you have taken the tropes of anti-Trump punditry too literally.The term “insurrection,” New York magazine’s Jonathan Chait wrote on Wednesday, is “a defensible shorthand for Jan. 6.” But it’s not “the most precise” term, because while “Trump attempted to secure an unelected second term in office,” he “was not trying to seize and hold the Capitol nor declare a breakaway republic.”This concession prompted howls of online derision from his left-wing critics, but Chait is obviously, crashingly correct. There are arguments about precedent and implementation that tell against the case for Trump’s ineligibility and prudential arguments about the wisdom of suppressing populist fervor by judicial fiat. But the most important point is that there are many things a politician can do to subvert a democratic outcome, all of them impeachable and some of them potentially illegal, that are simply not equivalent to military rebellion, even if a bunch of protesters and rioters get involved.To insist otherwise, in the supposed service of the Constitution, is to demonstrate yet again that too many would-be saviors of our Republic would cut a great road through reason and good sense if they could only be assured of finally getting rid of Donald Trump.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, Instagram, TikTok, X and Threads. More

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      Americans Are Signing Up for Obamacare in Record Numbers

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      The NewsMore than 15 million people have signed up for health insurance plans offered on the Affordable Care Act’s federal marketplace, a 33 percent increase compared to the same time last year, according to preliminary data released by the Biden administration on Wednesday.Federal health officials project that more than 19 million people will enroll in 2024 coverage by the end of the current enrollment period next month. That total would include those who gain coverage through state marketplaces, continuing the record-setting pace.“It means more Americans have the peace of mind of knowing that going to the doctor won’t empty their bank account,” Xavier Becerra, the health and human services secretary, said in a statement.An Affordable Care Act sign-up kiosk in a mall in Miami this month.Rebecca Blackwell/Associated PressWhy It Matters: The Affordable Care Act is expanding its reach.Despite a recent warning from former President Donald J. Trump, the front-runner in the race for the 2024 Republican presidential nomination, that he was “seriously looking at alternatives” to the Affordable Care Act, the latest surge in marketplace enrollment is a testament to the law’s enduring power.Legislation passed earlier in the Covid-19 pandemic increased federal subsidies for people buying plans, lowering the costs for many Americans. The Biden administration also lengthened the sign-up period and increased advertising for the program and funding for so-called navigators who help people enroll.“More and more people are realizing they can come onto the marketplace,” said Cynthia Cox, the director of the Program on the Affordable Care Act at KFF, a nonprofit health policy research group.She added: “Just because the A.C.A. has been around for a while doesn’t mean people who need to sign up for it know how to do that.”One Eye-Popping Statistic: 750,000 sign-ups in a single day.On Dec. 15 — the deadline to sign up for coverage that begins on Jan. 1 — nearly 750,000 people opted for a marketplace plan on HealthCare.gov. It was the largest single-day total yet.Dr. Benjamin Sommers, a health economist at Harvard who served in the Biden administration, said that improved outreach helped explain the record sign-ups. “I’m pleasantly surprised,” he said.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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      in Elections

      Ukraine Faces Critical Tests as It Duels With Russia for Stamina

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      With Western support for Kyiv softening and Congress holding up urgently needed aid, Vladimir Putin’s bet on outlasting Ukraine and its allies is looking stronger.Ukraine faces dwindling reserves of ammunition, personnel and Western support. The counteroffensive it launched six months ago has failed. Moscow, once awash in recriminations over a disastrous invasion, is celebrating its capacity to sustain a drawn-out war.The war in Ukraine has reached a critical moment, as months of brutal fighting have left Moscow more confident and Kyiv unsure of its prospects.The dynamic was palpable last week, as Vladimir V. Putin casually announced plans to run for six more years as president of Russia, swilling champagne and bragging about the increasing competence of Russia’s military. He declared that Ukraine had no future, given its reliance on external help.That air of self-assurance contrasted with the sense of urgency in this week’s trip to Washington by President Volodymyr Zelensky of Ukraine, who pressed Congress to pass a stalled spending bill that includes $50 billion more in security aid for Ukraine.Speaking at the White House alongside Mr. Zelensky, President Biden said lawmakers’ failure to approve the package would “give Putin the greatest Christmas gift they could possibly give him.”But Mr. Zelensky’s pleas fell flat, at least for now, with congressional Republicans, who are insisting that additional aid to Ukraine can come only with a clampdown on migration at the United States’ southern border. After meeting with Mr. Zelensky, Mike Johnson, the speaker of the House, said his skepticism had not changed.The messages from Moscow and Washington illustrated the growing pressure on Ukraine as it shifts to a defensive posture and braces for a harsh winter of Russian strikes and energy shortages. Kyiv is struggling to maintain support from its most important backer, the United States, a nation now preoccupied with a different war, in Gaza, and the 2024 presidential campaign.Looming over Kyiv’s prospects is the possible return to office in 2025 of former President Donald J. Trump, a longstanding Ukraine detractor and praiser of Mr. Putin who was impeached in 2019 for withholding military aid and pressuring Mr. Zelensky to investigate Mr. Biden and other Democrats.Almost 22 months into the war, polls broadly have found waning United States support for continued funding of Ukraine, particularly among Republicans. A recent Pew Research Center survey found just under half of Americans believe the United States was providing the right amount of support to Ukraine or should be providing more.Ukrainian soldiers firing at Russian positions in the Donetsk region of eastern Ukraine last month.Tyler Hicks/The New York TimesMr. Johnson said money for Ukraine required more oversight of spending, and “a transformative change” in security at the U.S. border with Mexico. “Thus far, we’ve gotten neither,” he said.But the White House still has time to try to work out an agreement that includes border security, and Mr. Zelensky said he remained optimistic about bipartisan support for Ukraine, adding, “It’s very important that by the end of this year we can send a very strong signal of our unity to the aggressor.”A rupture in U.S. funding would risk proving Mr. Putin correct in his longstanding conviction that he can exhaust Western resolve in global politics and conflicts. Though his government bungled the invasion of Ukraine in February 2022, Russia has regrouped, in part because Mr. Putin was willing to accept enormous casualties.“Putin, soon after the initial offensive didn’t produce the results that Russia had hoped, settled in for a long war and estimated that Russia at the end of the day would have the biggest stamina, the longest staying power, in this fight,” said Hanna Notte, an expert on Russian foreign and security policy at the James Martin Center for Nonproliferation Studies.Russia has adapted, pumping up its domestic production of ammunition and weaponry, and importing critical matériel from Iran and North Korea, all with the goal of sustaining a long war, Ms. Notte said.“I think there was sort of a dismissiveness, ‘Let the Russians get together with these pariahs, with these global outcasts, and good luck to them,’” Ms. Notte said.But that support has been meaningful for Moscow on the battlefield, she said, particularly with Iran helping Russia enhance its domestic drone production. Ukraine, meanwhile, is struggling to obtain a sufficient flow of ammunition and weaponry from the West, where nations aren’t operating on a wartime footing and face significant production bottlenecks.Ukrainian troops gathered to test-fire their German-made Leopard tanks before moving toward the front line in the Kharkiv region of Ukraine last week.David Guttenfelder for The New York TimesDespite his advantages in numbers and weaponry, Mr. Putin also faces limitations, and military analysts say Russia is in no position to make another run at the Ukrainian capital, Kyiv, or other major cities.Russia lost huge numbers of personnel in its offensive maneuvers in the past year, and won little territory apart from the city of Bakhmut. With Mr. Zelensky ordering his troops to build defensive fortifications along the front, Russia may continue to suffer heavy losses without gaining much in return.Facing continued signs of displeasure with last year’s mobilization, the Kremlin appears loath to do another forced call-up before the Russian presidential election in March, if at all.“What we have seen in this war is the defense usually has significant advantages,” said Steven Pifer, a senior fellow at the Brookings Institution and former U.S. ambassador to Ukraine.Still, Ukraine, reliant on the West for weaponry and funding, faces short-term pressures that Russia does not. Kyiv’s allies don’t have the ammunition and equipment to arm another counteroffensive, making a major new campaign unlikely for most of 2024, according to analysts and former U.S. officials.The United States is by far Ukraine’s most important backer, accounting for about half of its donated weaponry and a quarter of its foreign aid funding. The congressional fight, bogged down in a partisan dispute about border security, has unnerved many Ukrainians.“Today, Ukrainians are beginning to suspect that the U.S. wants to force us to lay down our arms and conclude a shameful truce,” Yuriy Makarov, a political commentator for Ukrainsky Tyzhden, a Ukrainian magazine, said in an interview. “That the Ukrainians practically destroyed the professional army of Russia, which until recently was the main enemy of the United States, does not seem to be taken into account.”Hanna Yarotska, second from left, and her husband, Vasyl, left, mourn at the coffin of their son Yaroslav Yarotskyi, 25, a fallen Ukrainian soldier, at the cemetery in Boryspil, Ukraine, last month.Mauricio Lima for The New York TimesThe failure of this year’s counteroffensive has exacerbated political friction in Ukraine, most notably between Mr. Zelensky and the military chief, Gen. Valery Zaluzhny. A month after Mr. Zelensky publicly chastised the commander for saying the war had reached an impasse, the two have yet to appear together in public.There are signs Russia intends to be more aggressive through the winter. After weeks of focusing attacks on the city of Avdiivka, Russia over the weekend began a general offensive along the eastern front, the commander of Ukraine’s ground forces, Gen. Oleksandr Syrskyi, told Ukrainian news media.The fighting favors Russia’s greater access to artillery ammunition. Earlier this year, the NATO general secretary, Jens Stoltenberg, estimated that Ukraine fired 4,000 to 7,000 artillery shells a day, while Russia fired 20,000.The United States has provided more than two million 155-millimeter artillery shells and brokered deliveries from other nations. But stocks in Western militaries, which had not anticipated fighting a major artillery war, are dwindling.Ukraine also needs ammunition for air defenses, lest Russia’s volleys of exploding drones and cruise and ballistic missiles break through the air-defense blanket over the capital and key infrastructure.Ukrainian soldiers grabbing their rifles after firing an artillery shell at a Russian position near Borova-Svatove in Ukraine’s Kharkiv region last week.David Guttenfelder for The New York TimesThe United States and its allies have provided a dozen or so types of air defenses, sophisticated NATO systems that have allowed businesses to open and cities to resume mostly normal rhythms of work and sleep. But as Russia fires thousands of cheap, Iranian-made Shahed drones, Ukraine’s air-defense ammunition is being exhausted.A tipping point looms if Russian missiles can reliably penetrate gaps, hitting military targets like airfields and blowing up electrical and heating infrastructure to dampen economic activity with blackouts, deepening Ukraine’s reliance on Western aid.“They can keep doing it as long as needed,” Tymofiy Mylovanov, a former Ukrainian minister of economy, said of the Russian assaults. Over time, diminishing political backing for Ukraine in the West provides an incentive to keep whittling away at Kyiv’s arsenal, he said. “If they feel Ukraine will lose support, they will try harder.”Ukraine also faces challenges from the attrition of its personnel.Kyiv does not announce mobilization targets or casualties, but a former battalion commander, Yevhen Dykyi, has estimated that Ukraine will need to enlist 20,000 soldiers a month through next year to sustain its army, both replacing the dead and wounded, and allowing rotations.“Unfortunately,” he said, “with all the military tricks and technologies, some things cannot be compensated for by anything but sheer numbers.”A memorial for Ukrainian soldiers in Kyiv last month.Mauricio Lima for The New York Times More

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      in Elections

      This Economy Has Bigger Problems Than ‘Bad Vibes’

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      The economy is growing. Wages are up. Unemployment is low. Income inequality is narrowing. The fearmongering about inflation proved to be, well, wrong. According to many economy-watchers, Americans should be sending the Biden administration a gift basket full of positive vibes — and votes.Instead, consumer confidence polling paints a different picture. A recent Times/Siena poll found that only 2 percent of registered voters said economic conditions are “excellent,” and only a further 16 percent said they were “good.” While economic indicators suggest that the economy is healthy and growing, the American public doesn’t feel that way. Why the perception gap?One popular theory is that media narratives have duped Americans into believing that they’re having a rough time, when, in fact, they’re doing fine. Kyla Scanlon coined “vibe-cession” last year to describe this gap between perception and economic indicators. Since then, a story has emerged about consumer confidence: that poor perception and political polarization are mostly to blame. Brian Beutler, who writes the newsletter “Off Message,” calls out social media and misinformation for reinforcing the “bad economy” belief. Claudia Sahm, a former Federal Reserve economist, wrote that a “toxic brew” of human bias for negative information and the attention economy leads to consumer pessimism.The Biden administration’s messaging about the strength of the economy will shape President Biden’s presidential campaign. If Americans’ negative vibes about the economy persist, Donald Trump will surely bludgeon Biden with a line of attack that he relishes delivering. One of Trump’s favorite claims is that he is a successful businessman who ran a strong economy as president. Too few people believe that Trump, the G.O.P.’s favored candidate, will go to jail between now and the 2024 election. And so it should worry Biden that, according to that Times/Siena poll, a majority of likely voters trust Trump more than Biden on the economy.Why aren’t more voters giving President Biden credit for his strong economy?The bad vibes explanation is sound on the indicators, but that story doesn’t think too highly of Americans. It does not acknowledge voters’ dissatisfaction. It also does not offer a way forward. What do you do about bad vibes, exactly? Hire an exorcist?Looking at the economy through more than macroeconomic indicators could tell us a more compelling, empowering story. What if people are not being manipulated by the media, confused about the fundamentals or biased against Democrats? What we know about historical changes to how the economy works and for whom it works might tell a different story with more potential for the future.One such story considers what we consume and how much harder (and expensive) it is to procure it. A lot of our consumption is about meeting our basic needs. Housing, food, and energy come to mind. The economic fundamentals on these may be trending positively, but the bad vibes narrative undersells how miserable that part of the economy can feel.People are struggling with mortgage interest rates, housing shortages and pricey grocery bills. They’re also consuming to make their lives work: on expensive, hard-to-manage child care, health care and convenience spending — things like restaurants, travel, delivery services, and on-demand help — which are necessary for balancing work and life demands. Even when those services are affordable, they are full of friction. That is a nice way of saying the consumer experience sucks. It is hard to schedule things, hard to get customer service, hard to judge the quality of what you are buying, and hard to get amends when an experience goes bad. There is a reason industry analysts have reported that customer brand loyalty is low and customer rage is high.In 2021, the American Rescue Plan created a temporary social safety net for millions of Americans that may have changed how they feel about their spending. For younger Americans, massive stimulus was a taste of the Great Society investment that benefited their grandparents and great-grandparents. Child care subsidies, direct cash transfers, food supplements, eviction moratoriums, and flexible work from home arrangements temporarily lifted many low-income people out of poverty. Those provisions also exposed many working and middle class workers to the difference that economic policy could make — for the better — in their lives.Then, fearing inflationary pressures on the economy, Congress let the American Rescue Plan’s most powerful investments, and therefore the most substantial government support for social reproduction in a generation, end. But social reproduction — the caretaking of people, relationships and systems that make our society work — still had to be done. Reallocating your spending from child care to student loan payments, for example, might be feasible, but it is not particularly enjoyable. That assumes one can find accessible child care or an in-network doctor or apartment. When stimulus funding ended, a lot of services people rely on became harder to find and afford.When people talk about the work that makes the economy possible, they often think first and most about child care. There is a good reason for that. Child care is necessary work. It is often unpaid work (when done by mothers) or underpaid work (when done by child care workers). The American Rescue Plan sent $39 billion to states, with the aim of stabilizing child care centers. After some of that funding expired in September, the problems typical of our country’s child care shortage re-emerged. Depending on where one lives, child care centers’ capacity may not have returned to prepandemic levels, producing a lot of anxiety and wait-lists for families. As one of my colleagues recently put it, anyone who thinks he just has bad vibes hasn’t tried to find summer day care for young children.Then there is the rest of the hidden labor that has to happen so people can go to work, that is so often invisible and has historically been the domain of women: caring for a household and aging relatives, receiving the plumber or delivery truck and, of course, having the time (and money) to make meals, manage doctors appointments, chauffeur kids to after-school activities and clean the house.For the most part, the industries that support that kind of invisible labor are more difficult to find, harder to obtain and more expensive to buy than they were four years ago. Those industries also gained a lot of not-so-enjoyable friction. Industry surveys suggest that customer service has gotten worse and consumers are angry about it. That coarsening of consumerism affects millions, but women, in particular, pay a price due to the outsize role they play in managing hidden labor.Jessica Calarco, a sociologist at the University of Wisconsin, calls the way our society relies on families to independently support social reproduction a “D.I.Y. society.” Research demonstrates repeatedly that women, especially, are sacrificing to balance paid work with all that D.I.Y. labor. Healthy economic indicators, like low unemployment, also put the squeeze on women by raising the price and increasing the difficulty of hiring a little help.The bad vibes story emphasizes that lower-income workers have benefited the most from the growing economy. It is true. Over the past four years, at the macro level, workers at the bottom of the income distribution made greater gains than those at the top. That wage compression means some good things, for example: People without college degrees are benefiting from a strong labor market. The female-dominated child care field is a good example. Acknowledging that child care is skilled labor empowers the workers to demand better working conditions.However, those positives also present a challenge. Using child care workers as an example again, as their wages stagnated and their skills upgraded, many of them left for better paying jobs. That is the case for a lot of the jobs that do the vital social reproduction work in our economy. There are now fewer people to do the low-paid, low status work than there was before the Covid-19 pandemic. Illness pushed some workers out. Others left for better economic opportunities. The social reproduction work needs to be done but there are fewer workers able or willing to do it.Low unemployment means more Americans are working. It also means more people are experiencing our social reproduction crisis firsthand. This has long been a reality for female workers. Our crisis of who is supposed to do all the undervalued labor that underpins economic life has pushed many women out of the work force, reduced their participation, and generally made work more stressful. Men now take on moderately more responsibility for household tasks. With that shift, the problem of balancing care work and paid work has become urgent for both men and women. Even as millions of Americans are earning more, they face stiff competition from high-income earners for a smaller pool of services — including schools, health care, home maintenance and retail services — to make it all work.In short, people may have more money. But it has become harder to buy the services they need and more expensive to buy the goods that they want. The very wealthy can spend their way out of that bind, simply by paying more for housekeeping and grocery delivery and nannies. But everyone else needs some sort of partnership with the government to make the act of working not just affordable, but accessible. The Biden administration has not solved that bigger crisis (neither did the Trump administration). Whether Americans are blaming the right administration for their woes, their economic lives legitimately feel tougher even as they work more and earn more money.Bad economic storytelling tells millions of Americans in an election year that they only think that they are struggling financially. Good economic storytelling would figure out how to account for their experiences and imagine a better future. People need child care, and dentists, and affordable housing, and safe transportation, and accessible education. Telling them that to instead enjoy the fact that they can buy a Tesla is a fundamental misunderstanding of what economic policy is supposed to do, which is to make people’s lives better.Tressie McMillan Cottom (@tressiemcphd) became a New York Times Opinion columnist in 2022. She is an associate professor at the University of North Carolina at Chapel Hill School of Information and Library Science, the author of “Thick: And Other Essays” and a 2020 MacArthur fellow.Source images by Ivan Bajic and kutaytanir/Getty ImagesThe 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, Instagram, TikTok, X and Threads. More