151 search results for ""14th amendment""

I’m not quite sure what I think about this push to invoke the 14th Amendment to keep Trump off the ballot. It certainly seems to be straightforwardly correct on the merits. But whether it’s politically viable — or wise — is still unresolved for me. Would it save democracy or destroy it?

TPM takes a look at the inside of the move to do this:

Those on the vanguard of invoking the seldom-used Disqualification Clause of the 14th Amendment, under which Trump’s role in Jan. 6 would preclude him from running for office again, acknowledge that what they’re doing is unprecedented in the modern era. But so is a president attempting to foment an insurrection. 

“It’s Donald Trump’s fault if some people end up not being able to vote for him,” Gerard Magliocca, an Indiana University law professor who specializes in the Disqualification Clause, told TPM. “He took that right away from them by his misconduct.” 

In interviews with TPM, some of the outside groups leading the charge to enforce the Disqualifications Clause acknowledged the legal realities and complexities involved in disqualifying a major presidential candidate in a country where each state runs its own election and has its own disqualification process. But they also hew to the belief that Trump’s attempt to stay in power against the will of the people not only should bar him from further office, but already does under the Constitution. 

Their plans involve a mixture of public campaigning to apply pressure on the state-level secretaries of state and election boards who decide matters of disqualification. Accustomed to asking judges to rule on petitions involving the age or citizenship of local candidates, good government groups are now crafting bids to have these officials disqualify Trump.

Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech for People (FSFP), among the groups most active on the Disqualification Clause, are tight-lipped about where they plan to file formal legal challenges to disqualify Trump, though FSFP sent letters this week asking officials in Florida, Ohio, Wisconsin, New Hampshire and New Mexico to drop Trump from the ballot. That, in turn, has prompted some other states to start examining the process. 

Getting Underway

The disqualification clause has been the subject of renewed buzz since two conservative scholars — associated with the Federalist Society, no less — published a preview paper in the University of Pennsylvania Law Review endorsing the argument that Trump is disqualified from running. 

That buy-in forced a closer look from observers and even elected officials who might’ve been predisposed to shrug the argument off as the latest liberal wishcasting.   

But while the proposal’s resurgence in the post-Reconstruction era is new, CREW and FSFP have already tested it in court.  

FSFP, a Boston-based nonprofit helmed by attorney John Bonifaz, started filing in 2021 to disqualify candidates — including Rep. Marjorie Taylor Greene (R-GA) and former Rep. Madison Cawthorn (R-NC) — from the ballot. 

The group’s legal director, Ron Fein, told TPM that FSFP is gearing up for a legal fight to disqualify Trump in several states before the Republican primaries begin.

“We’re pursuing both advocacy to persuade secretaries of state to disqualify Trump on their own and we will also be filing formal legal challenges to Trump’s candidacy in multiple states,” Fein said.

FSFP has already gotten part of its plans underway. 

Their strategy is two-pronged: keep up public pressure via letters to secretaries of state, election boards, and public protests at state election offices. 

But it’s the second part that will constitute the real test of the process. That will come down to formal petitions and lawsuits that the group is planning to file, asking whichever the relevant authority is in a given state to find that Trump is disqualified. Fein said that that will require FSFP to prove not only that Trump’s effort to reverse his loss in 2020 qualified as an insurrection, but that he undertook real acts to “engage” in it — thereby meeting a Reconstruction-era legal standard.

“Our predecessors wrote Section 3 of the 14th Amendment of the Constitution because they learned a bloody lesson from the Civil War,” Fein said. “When someone foments a violent insurrection against the U.S., they can’t be trusted with public office.”

51 Different Elections

Many of the same archaic processes which Trump tried to use to his advantage in his attempt to undermine the 2020 election results also make disqualification difficult. Each state runs its own election for presidential electors, and each one has its own disqualification procedures to navigate. The effect is that piecemeal, individual efforts are less likely to achieve an outsized effect than organizations which can coordinate nationally. 

They also only need to knock Trump off a few swing state ballots before the electoral math becomes very difficult for him, meaning they don’t have to succeed in every state to effectively disqualify him nationally. That math will help inform the plan, as will homing in on venues where the challengers will have the latitude to collect and display evidence — something judges have blocked in other disqualification cases. 

“That very consideration is part of what informs where we’ll file — we want to file in a forum that will allow you to do those sorts of procedures,” Nikhel Sus, CREW’s director of strategic litigation, told TPM, adding: “We have trial plans, plans to put on evidence and witnesses. Just having some sort of evidentiary hearing or trial has value in and of itself.” 

In some states, that’ll play out in administrative court. In others, normal state court.

Sus told TPM that the group will file lawsuits challenging Trump’s eligibility on the Republican primary ballot by the end of this year. 

That effort will encompass the idiosyncrasies of the various states, and will entail “a mix of both” complaints through election officials and complaints through the courts, befitting each state’s requirements.  

In North Carolina, for example, former state Supreme Court justice Robert Orr found himself combing through pages from an 1869 case testing the Disqualification Clause to see how it might apply.

“The intent of the framers of that constitutional amendment, that provision in the 14th Amendment, was to send a very distinct message not only to all the old Confederates, but to those who potentially might try it again,” Orr told TPM. 

Orr worked with FSFP on a bid to disqualify Cawthorn, and said he expects bids against Trump in his state.

Mixed Early Results

Most of those attempts, made after Jan. 6 to disqualify various Big Lie-friendly Republicans — Reps. Andy Biggs (R-AZ) and Paul Gosar (R-AZ), Mark Finchem, the GOP nominee for Arizona Secretary of State, Green and Cawthorn — were unsuccessful. 

In the Georgia and Arizona cases, judges blocked the challengers from obtaining and displaying the evidence on which the disqualification was predicated. That made it very difficult to prove that the lawmakers had engaged in an insurrection. 

In the one successful disqualification so far — CREW’s effort to remove Otero County, New Mexico commissioner Couy Griffin, who joined the mob on Jan. 6, from his post — the challengers put on an extensive trial with witnesses and video footage. 

Some of the problems that plagued FSFP in these cases would be unlikely to so thoroughly bedevil attempts to disqualify Trump. Along with the groups’ wariness about the evidentiary roadblocks and plans to file where they can put on a whole trial, much more of Trump’s actions before and during Jan. 6 are in the public record. The House Jan. 6 committee and subsequent indictments create a comprehensive record of what exactly Trump did. 

These groups would also simply have more bites at the apple with Trump. Instead of relying on one judge, or at best, one series of courts, they’ll challenge Trump’s qualification in a wide swath of states with an eye to where they’ll most likely find success. 

“The odds that everyone is gonna agree that he’s eligible are pretty low,” Magliocca said. “As long as you have somebody saying he’s ineligible, this is going to the Supreme Court, and probably pretty quickly.” 

I dunno. It’s such a tremendous threat that it seems that any legal and constitutional means to keep him out of the White House again is justified. But what then? I’m not convinced that this particular cure wouldn’t end up being worse than the disease. I guess I’ll need to watch this play out and see where it leads.

Or just when conservatives find it convenient?

Fourteenth Amendment challenges (and counterchallenges) to Donald Trump’s disqualification for any public office in these United States are beginning to multiply. On its face, the post-Civil War constitutional amendment disqualifies Trump from running again for president over his involvement in the Jan. 6 attempted coup. Multiple conservative legal experts agree.

Activists have already challenged Trump’s eligibility in North Carolina and Florida.

And so? (CNN):

New Hampshire Secretary of State David Scanlan, a Republican, said earlier this week that he asked the state’s attorney general to examine the matter and advise him on the “provision’s potential applicability to the upcoming presidential election cycle.” The attorney general’s office said it was “carefully reviewing the legal issues.”

In the statement, Scanlan said he wasn’t taking a position on the disqualification question and was not “seeking to take certain action” but was going to study the matter in anticipation of lawsuits.

Oh, they’re coming (Associated Press):

The 14th Amendment bars from office anyone who once took an oath to uphold the Constitution but then “engaged” in “insurrection or rebellion” against it. A growing number of legal scholars say the post-Civil War clause applies to Trump after his role in trying to overturn the 2020 presidential election and encouraging his backers to storm the U.S. Capitol.

Two liberal nonprofits pledge court challenges should states’ election officers place Trump on the ballot despite those objections.

Just days ago in Michigan, “litigious activist Robert Davis” asked Secretary of State Jocelyn Benson to declare Trump ineligible.

Michigan state Rep. Peter Meijer (R) declared in response, “This kind of asshattery would be immediately rejected as nonsense by serious people in normal times. I don’t give a damn what your ‘novel legal theory’ is- it will be far more corrosive to the body politic than whatever threat it is you think you’re ‘protecting’ the country from.”

Novel legal theory? Princeton University historian Kevin Kruse responds, “Six officials were barred under Section 3 of the Fourteenth Amendment a century and a half ago. And a participant in Trump’s insurrection was disqualified from office last year.”

It’s not a “novel legal theory.” Six officials were barred under Section 3 of the Fourteenth Amendment a century and a half ago.

And a participant in Trump’s insurrection was disqualified from office last year. https://t.co/8v6sjstXkE

— Kevin M. Kruse (@KevinMKruse) September 1, 2023

Julian Sanchez, a writer and former senior fellow at the Cato Institute, replied, “It’s… not a ‘novel legal theory,’ it’s a 155-year-old constitutional provision that explicitly disqualifies people from federal office, and which a bunch of prominent conservative legal theorists believe applies squarely to Trump.”

“I’ll note the courts have already applied this to Jan 6 insurrectionists: A county commissioner in NM was removed from office under this clause, and his appeal was rejected by the state’s supreme court,” Sanchez concludes. “So apparently not entirely unserious.”

New Mexico’s state Supreme Court denied former Otero County Commissioner Couy Griffin’s appeal in February.

Sanchez adds, “The ‘novel legal theory’ would be that an express Constitutional clause doesn’t apply when it’s politically inconvenient.”

The Queen of Hearts’ rules

Constitution, shmonstitution, say the pocket Constitution-clutchers. The law is what MAGA Republicans say it is. Before there were MAGA Republicans there were T-party Republicans. Same difference, as they say. The law is what they think it should be.

But that’s always been the case for conservatives: preferential treatment for the preferred. And they get to say who’s preferred. Cue Frank Wilhoit:

Conservatism consists of exactly one proposition, to wit:

There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

There is nothing more or else to it, and there never has been, in any place or time.

“Off with their heads!”

“How do you abandon deeply held beliefs about character, personal responsibility, foreign policy, and the national debt in a matter of months? You don’t. The obvious answer is those beliefs weren’t deeply held,” one-time Republican Stuart Stevens wrote in “It Was All a Lie: How the Republican Party Became Donald Trump. “

Churning in the Donald Trump multiverse

Judge Tanya S. Chutkan is set to consider a trial date for Donald Trump’s trial on federal charges brought by special counsel Jack Smith in the Jan. 6 indictment. CNN reports, “Smith wants the trial to begin January 2 – two weeks before Trump’s first big test in the 2024 primary race in the first-in-the-nation Iowa caucuses. The ex-president’s team has asked for much more time, and is proposing a date of April 2026. Trump is not expected to be at the hearing.”

Watch Brandi Buchman’s live feed from the Prettyman courthouse in Washington, D.C. beginning at 10 a.m.

In Atlanta, meanwhile, in a hearing this morning, Fulton County District Attorney Fani Willis will present arguments in the case against Mark Meadows who seeks to move his case to federal court.

Politico explains why Meadows (and others) might want their cases heard in federal court:

If moved to federal court, the charges — all of which are under Georgia law — would remain the same, and Willis’ team could continue to handle the prosecution. But federal procedural rules, not state court rules, would apply. And some defendants might anticipate other, more substantive advantages in a federal forum.

A jury for a trial in federal court would likely be drawn from 10 counties that comprise Atlanta and its sprawling suburbs, while a state-court trial would likely include jurors only from Fulton County, which delivered a 73% to 26% victory for Joe Biden over Trump in 2020. The broader set of counties is home to a somewhat higher proportion of Trump supporters, though the political makeup is not dramatically different.

All those co-defendants complicate Trump’s Georgia trial and the timing, especially since several want a speedy trial set to minimize the cost of their defense. Most do not have Trump’s deep pockets and fundraising machine. Their electoral machinations on Trump’s behalf will cost them and their families.

Washington Post:

Former Trump White House chief of staff Mark Meadows’s request to move his case to federal court will be the subject of an evidentiary hearing Monday. It’s possible that Meadows might need to testify for his request to succeed, and we learned Thursday that Fulton County District Attorney Fani T. Willis has subpoenaed two central witnesses to participate: Georgia Secretary of State Brad Raffensperger (R) and his chief investigator, Frances Watson. (Politico’s Kyle Cheney said this makes Monday’s hearing something of a “mini trial.”)

Also Thursday, a judge set an Oct. 23 trial date for one defendant, Kenneth Chesebro. Chesebro has requested a speedy trial, which he is entitled to under Georgia law. Former Trump lawyer Sidney Powell has also requested a speedy trial, though her trial date hasn’t been set. While their prosecutions might be separated from the defendants who prefer to delay their proceedings (including Trump), an early trial for one or more defendants could get at central facets of the alleged conspiracy.

Powell is what we might call, colloquially, a loon. Murray Waas observes that going to trial with her or with Trump is a devil’s bargain for Chesboro, if not for John Eastman as well.

John Eastman and Ken Chesboro face a difficult choice: Go to trial with Donald Trump who is attempting to scapegoat them to get off the hook himself. Or go to trial alongside Sidney Powell, and lose complete control of the proceedings to her. https://t.co/seFH8rHIhr

— murray waas (@murraywaas) August 28, 2023

Running for a pardon

For all his declarations of innocence, Trump is not looking, as an innocent man might, for trails to exonerate him before voters decide if he should again be president in November 2024. He’s running for a self-pardon, at least on the federal charges (New York Times):

As a further complication, Mr. Trump has made no secret in private conversations with his aides of his desire to solve his jumble of legal problems by winning the election. If either of the two federal trials he is confronting is delayed until after the race and Mr. Trump prevails, he could seek to pardon himself after taking office or have his attorney general simply dismiss the matters altogether.

Finding slots to schedule all the Trump trials into the calendar are a challenge. Even more so since Trump hopes to campaign for president concurrently (if he does not get his delays).

Should state officials or others challenge Trump’s eligibility to appear on state ballots under the 14th Amendment’s disqualification clause, Trump and his attorneys will face even more time in court fighting for ballot access. That’s ironic, since Republicans from sea to shining sea spend so much time and effort trying to prevent everyday voters access to voting theirs.

SCOTUS rules

“The court holds that Harvard and UNC’s admissions programs violate the equal protection clause of the 14th Amendment,” writes Amy Howe of SCOTUSblog.

Associated Press:

WASHINGTON (AP) — The Supreme Court ruled Thursday that colleges and universities must stop considering race in admissions, forcing institutions of higher education to look for new ways to achieve diverse student bodies.

In a 6-3 decision, the court struck down admissions plans at Harvard and the University of North Carolina, the nation’s oldest private and public colleges, respectively.

There’s not enough time to comment on this 237 pg. opinion by Chief Justice Roberts in cases involving affirmative action admissions at Harvard and UNC, but here’s Amy Howe of SCOTUSblog again:

1)The court says that it has “permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end.”

2)The Harvard and UNC programs, Roberts writes, “however well intentioned and implemented in good faith,” “fail each of these criteria.”

3)Here’s the end of the Court’s opinion: “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”

Affirmative action cases in. Roberts writes. Court strikes down Harvard and UNC-based programs, one as violation of equal protection the other federal law. Lineup as anticipated

— Harry Litman (@harrylitman) June 29, 2023

Invocation of Brown's “fundamental principle that racial discrimination in public education is unconstitutional.”

— Harry Litman (@harrylitman) June 29, 2023

“Sotomayor dissents, joined by Kagan and Jackson as it applies to the Harvard case. Jackson dissents in the UNC case, joined by SOtomayor and Kagan,” Howe writes.

Watch for commentary later. That is all.

A debt ceiling fight ending with a whimper not a bang

wow, RINO pic.twitter.com/hugLr2hksg

— Aaron Rupar (@atrupar) May 28, 2023

It’s not over yet, because Kevin McCarthy still has to round up enough votes to get past the Hastert Rule (GOP can’t bring a bill to floor with a majority of Democratic votes) and he might still face a motion to vacate the chair when all is said and done (which is his problem, not ours) it appears that creaky old Joe got the best deal we could have expected, most importantly an agreement to extend the debt limit until after the next election. Donald Trump hasn’t said a word yet. Whether he whips against voting for it is unknown. But you can bet he is not happy about it.

Here’s Dave Dayen at the American Prospect with the view from the progressives:

With one potentially major exception, the relative harm and help was kept to a minimum in the final agreement. It will only be a little bit easier to commit wage theft, or to sell defective or poisoned products. It’ll only be a little harder to get rental assistance or tuition support. Only a few people will be freer to pollute the environment; only a few will find it more difficult to get food. The Internal Revenue Service will only be a little worse. A lot of things will stay the same. Almost nothing will get any better.

That’s the broad strokes of a deal that the White House and House Republicans are selling to their respective bases right now. (House Republicans held a meeting immediately after the agreement was made last night; the White House isn’t holding anything for Democrats until this afternoon, after the bill text is supposed to be posted.) It will dictate federal spending on domestic discretionary programs for two years, and it will raise the debt ceiling for two years. After that, depending on the composition of Congress, we’ll all be here again. The stakes for the 2024 election just got even higher.

Imagine a world where we were a normal country with no debt ceiling, but everything else was exactly the same. Thanks to gerrymandering and the malpractice of the New York Democratic Party, Republicans still have the House, and the budget for the current fiscal year still expires on September 30. Republicans and Democrats would still have to negotiate that budget, and one likely outcome of that would be that negotiations fall apart, that there’s just no way to reconcile what both sides want. In that case, either the government shuts down or a continuing resolution is struck, which means that the government would operate at the current funding levels for a period of time. Maybe we’d live under a CR for the entire two years of this Congress.

That’s approximately what happened in this agreement. The funding levels for fiscal year 2024 on the non-defense discretionary side are at FY2023 levels. House Republicans are saying they clawed things back to FY2022, but a number of funding shifts—most prominently the return of tens of billions of dollars in unspent COVID aid—backfill the non-defense discretionary budget to get it to around FY2023. (The IRS money from last year’s Inflation Reduction Act also adds to this backfill, but while some reports still list that as a $10 billion fund shift, others put it as low as $1.9 billion, which is a little more than 2 percent of the total $80 billion outlay). This cap then rises by one percent in FY2025.

The goal here was to allow both sides to say contradictory things to their members. Republicans can say they achieved the target of the Limit, Save, Grow Act to limit discretionary spending to FY2022; Democrats can say they only froze spending at current levels. And both are sort of right.

Meanwhile, military spending, which is magic and has no impact on the federal budget, actually rises in FY2024 to the level in the Biden budget. (House Republicans wanted it even higher.) Veterans spending has similar privilege, and rises as well. Mandatory spending, like Social Security and Medicare, isn’t touched as well.

The New York Times estimates that this will cut $650 billion in spending over ten years, but only if spending rises at the rate of inflation after the caps lift. That’s highly uncertain: a Democratic government could restore all the cuts, while a Republican government could cut further.

In other words, not great, but not catastrophic.

Here’s Dan Pfeiffer on the politics:

Biden Outplayed McCarthy

Everyone can debate about how we got to this moment until the end of time. I wanted Democrats to include a debt limit extension in the Inflation Reduction Act. Like many others, including the Biden White House, I wanted the Democrats to use the lame duck session to take this legislative weapon of mass destruction off the table. Others wanted the President to ignore the debt limit and cite the 14th Amendment . There is a good faith debate to be had about the wisdom of abandoning the White House’s no-negotiation stance. But this is where we are. Once the House Republicans took over with a looming debt limit expiration, all good options were off the table. There were only suboptimal outcomes on the menu.

The President made a judgment that this budget process was the best way to avoid default and the outcome is better than many thought possible a few days ago.

The spending numbers demonstrate what would have happened this fall if the parties were forced to negotiate a budget agreement to fund the government for next year. Those sorts of cuts were inevitable the moment the Republicans won the House. Our most pressing needs are already underfunded, so these cuts will hurt people. The cuts represent the worst kind of opportunity cost. But once again, they could have been worse.

Budget caps expire after 2025. This is a massive victory when you consider that McCarthy demanded ten years of budget caps.

Joe Biden always says “Compare me to the alternative, not the Almighty.” No Democrat would choose this deal, but the alternatives were default or the “Limit, Save, Grow Act” passed by House Republicans. McCarthy told his allies that his bill was the floor, not the ceiling, of what they could expect by holding the global economy hostage. His proposed bill included devastating cuts in veterans’ health care, cancer research, education, and food safety. The GOP approach would have destroyed thousands of manufacturing jobs by repealing the Inflation Reduction Act.

None of that is included here.

I want to hold out judgment on the work requirements until I see the details, but based on what we know, Biden limited the damage demanded by the GOP.

There’s not much to love in this deal for progressives, but Biden seems to have preserved all of the climate funding from the Inflation Reduction Act. If that’s the case, it’s a big win.

The deal is not great, but it’s a far cry from what the Republicans wanted. Notably, the Republicans played their best card, and all they got was a suboptimal budget deal.

For the next several days, the President and his team cannot toot their own horn. McCarthy, a notoriously bad vote counter, still needs to round up a majority of his Far Right caucus. The MAGA media and Trump loyalists will crap on the deal and pressure fellow Republicans to vote no. Every triumphant tweet and attempt to tout the decency of this deal will make it harder for McCarthy to round up the votes. Therefore, the White House will remain quiet while the Republicans obnoxiously crow about how they took Biden’s lunch money. But if the White House can’t say it, I will.

Joe Biden played a very tough hand well. He got a better deal than many thought possible, and he forced the Republicans to adopt a series of very unpopular positions that they will have to own on the campaign trail next year. 

There is nothing inspirational about “could’ve been much worse.” No one will run to the polls or volunteer to make phone calls because Democrats “limited the damage.” But the debt limit was President Biden’s first showdown with the MAGA Republican House. All things considered, he navigated it quite well.

Now, let’s hope McCarthy has learned to count votes since the last debt limit crisis.

I think Democrats should be careful about taking a victory lap because the wingnut snowflakes are very delicate and could balk. So, just between us: McCarthy told Fox News, “There’s not one thing in this bill for Democrats” but he is wrong. Biden got the biggest win of all although I’m not sure people realize how big it is. Agreeing to lift the debt ceiling past the election is huge. Trump wanted them to have this fight next spring so that he could fatuously claim that when he was president this chaos never happened (because Democrats aren’t terrorists) and throw the economy into turmoil before the election. That’s not going to happen. neither is a government shut down because they have agreed to fund the government for two years. All the arguments over the budget are over until after the 2024 election. That’s huge.

All that’s going to be happening until 2025 are idiotic culture war arguments and investigations, mostly criminal and mostly against Donald Trump and his cronies. I would say that gives Democrats the advantage. If the economy continues on its current path, they should be in pretty good shape to wage the battle.

A smattering of comments from this morning:

Kevin McCarthy touts defunding the CDC. What could possibly go wrong? pic.twitter.com/SPBOircgAR

— Aaron Rupar (@atrupar) May 28, 2023

That’s what makes them truly happy. Making foreigners suffer and, in the process, make it easier for another pandemic to come and kill their own followers. Death cult.

What they’re saying about the vote:

Rep. Dusty Johnson (R-SD), debt ceiling deal negotiator, on the GOP holdouts who have tweeted no:

"So when you're saying that conservatives have concerns, it is really the most colorful conservatives … Those votes were never really in play, we get that." pic.twitter.com/CYOlLOcar7

— The Recount (@therecount) May 28, 2023

That’s almost surely true. Matt Gaetz has been saying that publicly. The real question is whether six of them decide to flex their muscle and put McCarthy through another fraught speaker vote.

"We're gonna get America working again … When Republicans had the Presidency, the Senate and the House, did they ever cut spending? No, they increased it."

— Speaker Kevin McCarthy on Fox News Sunday sells the deal he and the White House worked out on the debt ceiling pic.twitter.com/mP2jfVRj5H

— The Recount (@therecount) May 28, 2023

Oh my. Does Trump realize what McCarthy’s saying there????

The future of he world economy is in the hands of fools

“Regular Americans … don’t worry about the government shutting down.”

— Rep. Marjorie Taylor Greene (R-GA) says no one in the House Republican conference is concerned about the potential of a U.S. debt default, possibly as early as June 1 pic.twitter.com/gvJsAUkZS5

— The Recount (@therecount) May 24, 2023

You’d think dealing with people this stupid would mean that the Democrats have the upper hand. But bargaining with neophytes and nihilists isn’t as easy as you might think. They don’t understand the ramifications of what they are doing:

Kevin McCarthy is finally a leading player in a huge Washington drama with his gavel on the line. But as his team sits down with President Joe Biden’s, McCarthy is confronting a handicap that even his allies acknowledge is real: Four years in the minority have left him, and the entire GOP conference, with little practice at monumental bipartisan negotiations like the current debt fight.

Before John Boehner became speaker, he worked across the aisle on a landmark education overhaul. Paul Ryan took over the House after helming a massive budget deal that even Democrats called a blueprint for future talks.

McCarthy brings a far different profile to the table. As minority leader, he was largely sidelined during the type of high-stakes talks with Democrats that he’s now helming. And while Speaker McCarthy is keeping his often-fractious members in his corner more consistently than his predecessors, his newness to the glare of White House negotiations leaves Washington without a decoder ring for his public vows that — even as the two sides stay far apart on big issues — a deal is still possible by next week.

“That’s been one of the things that is concerning at this point,” said Rep. Tom Cole (R-Okla.), who has served in the House for more than two decades. McCarthy and Biden in particular “missed a couple of years where they could have gotten to know one another a lot better,” Cole added, “and I think that would have been for the good of the country right now.”

Republicans say former Speaker Nancy Pelosi — whose frosty relationship with McCarthy was no secret during their time atop House leadership — played a major role in boxing them out from past talks, such as those on last year’s government funding bill. Democrats counter that the GOP was more interested in stoking partisan fights from their perch in the minority than reaching compromise.

Whatever the reason, it means that McCarthy has a record mostly devoid of big dealmaking, having been on the periphery of bipartisan agreements struck under Biden on infrastructure, tech manufacturing and spending.

The speaker is not alone in the House GOP. With few exceptions, including Cole, the conference includes dozens of members who’ve never voted for a spending bill — let alone a debt limit hike — before okaying a conservative debt package last month.

Even McCarthy’s most trusted emissaries during the debt talks are themselves young by congressional standards: Financial Services Committee Chair Patrick McHenry (R-N.C.), 47, and Rep. Garret Graves (R-La.), 51.

Asked about the relative lack of experience among McCarthy’s negotiators, seven-term Rep. Steve Womack (R-Ark.) allowed that “on paper that might ring true.”

“But, look, I have confidence in Patrick. I have confidence in Garret. I have confidence in the speaker. I mean, it’s not like they were born last night,” Womack said.

Part of the reason for McCarthy’s past exclusion is a built-in feature of the House, where the majority party has stricter control compared with the Senate — the chamber that is almost always the bigger hurdle to sealing a deal, given the filibuster. During this debt fight, though, Senate Minority Leader Mitch McConnell has deferred to his Californian counterpart, creating a rare case of the House in the lead.

That means a starring role for McCarthy, who has experience with contentious debt limit votes from his time on prior speakers’ leadership teams. McCarthy’s senior aides also have played behind-the-scenes roles in many deals, particularly during the Trump administration.

“He was still part of the negotiations, just not in the room,” said senior Rep. Robert Aderholt (R-Ala.).

Yet McCarthy’s resume lacks the committee leadership spots that gave both Ryan and Boehner more frequent chances to work with Democrats. And many of the House GOP’s deal-seeking former chairs have since retired (think Kevin Brady and Fred Upton).

Graves took a modest tack when asked about experience levels among the debt negotiators, replying that “what’s most important is knowing where your expertise is and where your limitations are.”

The Louisianan, known in the conference for his policy chops, also quipped that White House budget chief Shalanda Young, “schools me every day on numbers” as they engage in talks this month. He also lauded senior policy aides on the speaker’s team, like Brittan Specht and Jason Yaworske, observing that their heft is “why you build a team and you don’t have a single negotiator.”

McHenry, in his first term as chair, similarly deferred with a quip about his own prowess: “Congressman Graves has done a lot of big deals … and I’m just like a little guy with a bow tie walking around doing my thing, but I’ve done a few legislative pieces here, too.”

Multiple Republicans interviewed for this story said one of McCarthy’s greatest assets in his talks with Biden is the surprising amount of cohesion among his members after a 15-ballot ordeal of a speaker race. Two of the holdouts in McCarthy’s election — Freedom Caucus Chair Rep. Scott Perry (R-Pa.) and Rep. Matt Gaetz (R-Fla.) — praised the GOP’s rhetoric on the debt ceiling talks during a closed-door meeting Tuesday, according to a person familiar with the conversation.

As they largely give McCarthy space to engage on his own terms, however, some House Republicans are pushing him not to compromise at all — a portend of future angst on his right flank.

Rep. Chip Roy (R-Texas) argued in that same closed-door meeting Tuesday that Republicans were winning the messaging battle, but they’d lose if they got hung up on cutting a deal, according to two people in the room. Those two people described Roy as arguing that the talks shouldn’t be about a deal but about saving the country from excess spending.

Hours before that, during the Freedom Caucus’ weekly meeting on Monday night, some members spoke up to underscore that McCarthy shouldn’t accept anything less than what was passed out of the House, according to another Republican who was granted anonymity to discuss the private meeting.

“The Freedom Caucus stands behind the House-passed bill and behind our speaker,” said Rep. Ben Cline (R-Va.), a member of that ultraconservative group. “This is the first time most of us in the Freedom Caucus have ever voted for a debt limit increase. And it’s only because it was accompanied by such strong conservative reforms.”

That stance is sparking some heartburn in other corners of the conference, where battleground-seat colleagues worry that conservatives who cut their teeth on opposing major deals are setting themselves up to ultimately vote no.

Which would leave McCarthy reliant on Democrats, who say they have little trust in him to land a workable debt agreement.

“I don’t have much confidence in Kevin McCarthy on anything other than letting the Marjorie Taylor Greene wing of their party continue to pull his strings,” said Rep. Mark Pocan (D-Wis.), who sits on the House spending panel. “My hope is that outside forces can maybe make Kevin McCarthy bend to do the right thing.”

Veterans Affairs Committee Chair Mike Bost (R-Ill.) conceded that Democrats “are working with more experience, but look what it’s got us. Experience in what? Experience in continuing to raise our debt and experience in continuing to let the government grow out of control.”

And several Republicans pointed out that, though McCarthy was not involved as closely as McConnell in recent deals with Pelosi and Biden, he brings one big advantage over his Senate GOP counterpart: During the Trump years, McCarthy held daily phone calls with Trump that kept him more in the loop as a minority leader than most realized.

Rep. Gary Palmer (R-Ala.) offered his own endorsement of McCarthy’s chops, noting that he is “a voracious reader” of “all kinds of books on management” — citing “Good to Great” as an example.

“He’s been waiting for this moment to apply these things that he’s read,” Palmer added, “and I think he’s done an exceptional job.” Meanwhile, he argued, “Democrats think Biden is scared of his shadow from the left.”

That’s what Kevin is banking on with fatuous comments like this:

CNN’s @mkraju: “Why not offer a single concession beyond saying we’re not gonna default?”

Speaker McCarthy: “We've offered a lot of concessions! … If AOC & Bernie Sanders is gonna run their party, that’s not my fault. I’m not even sure Bernie Sanders is a registered Democrat.” pic.twitter.com/H1Zijfaj3C

— The Recount (@therecount) May 24, 2023

BTW: AOC and Bernie Sanders’ position is that the country should pay its bills and they’ll be happy to argue about future spending in the normal budget process.

This is why I’m convinced that if we are to avoid default or the 14th Amendment option, both of which could throw the economy into chaos, everything comes down to Kevin McCarthy’s willingness to risk his speakership to save the country. (Matt Gaetz reminded him about their power to vacate the chair just yesterday.) He will be under huge pressure from Trump and the batshit MAGA caucus to default because Trump thinks it would be good for him. If he brings a deal to the floor and it passes with Democratic votes he will likely have to go through another speaker vote spectacle. Maybe he’ll do it and maybe he’ll win in the end. But betting the future of the world economy on this circus sideshow is absolute lunacy.

The U.S. does it if they’ve been elected to Congress

While President Joe Biden and Speaker Kevin McCarthy do the debt-ceiling two-step, Treasury Secretary Janet Yellen cautions that the government is “highly likely” to run out of money as early as June 1, reports Axios:

• As the debt ceiling X-date approaches, Treasury is monitoring inflows and outflows to provide a more precise estimate of when the U.S. will run out of money.
• “[W]e have already seen Treasury’s borrowing costs increase substantially for securities maturing in early June,” Yellen warned in a letter to McCarthy on Monday.
• “If Congress fails to increase the debt limit, it would cause severe hardship to American families, harm our global leadership position, and raise questions about our ability to defend our national security interests.”

MAGA Republicans holding McCarthy’s short leash demand cuts to the federal budget, or else. Or else they’ll set fire to the country they failed to on Jan. 6 and likely revoke his speakership, Politico suggests, because “any single disgruntled member [is] empowered to orce a vote on ousting him.”

The American Prospect sees the debt limit as an unconstitutional congressional veto on the Executive branch’s responsibility to authority to fulfill existing U.S. obligations:

The Constitution gives Congress the power to make contracts. It does not give Congress the power to renege on these contracts. Once Congress has committed the United States to perform a promise, the president’s duty to “take Care that the Laws be faithfully executed” requires the executive branch to perform. If performance requires payment and Congress has appropriated the funds, Treasury is bound to pay. If Congress does not raise enough revenue to pay for appropriated commitments, then the president’s only choice is to borrow to fill the gap. Each time Congress authorizes a contract and appropriates funds to perform it, it necessarily authorizes borrowing to the extent that Treasury funds fall short.

[…]

Taken literally, the debt limit would allow Congress to exercise a constitutional power with one hand (debt contract) and undercut it with the other (borrowing cap). During the last major constitutional challenge to federal debt in 1935, the Supreme Court made clear in Perry v. United States that Congress could not use its constitutional powers at cross-purposes: “The powers conferred upon the Congress are harmonious … Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations.”

That assumes that MAGA Republicans who were prepared to overturn the results of the last presidential elections respect such constitutional guardrails.

The 14th Amendment, passed by Congress in 1866 and ratified by the states in 1868, shields the new borrowing. The section dealing with debt responded to threats of political sabotage attending the readmission of Confederate states. It renounced Confederate debts as “illegal and void,” and in parallel precluded challenges to federal debts, including Union war debts and pensions, using a formula understood at the time to make legal issues non-contestable: “The validity of the public debt of the United States, authorized by law … shall not be questioned.” This sentence, known as the Public Debt Clause, bound future Congresses, future presidents, and, importantly, future courts to uphold the credit of the nation. Borrowing over the debt limit to perform existing federal obligations is authorized by law and deemed valid under the 14th Amendment.

Still, an otherwise by-the guardrails president is reluctant to authorize new borrowing or nullify some debt himself even if existing debt is guaranteed under the 14th. “The problem is it would have to be litigated,” Biden said over the weekend.

“Treasury can prioritize paying interest on Treasury bonds or retiring debt principal when it comes due,” the Wall Street Journal’s editorial board insists. “Treasury has more than enough cash to do this” without authorizing new borrowing. Read: Shut down parts of the government — shut down federal contracts, stop sending out Social Security checks, etc. — to cover creditors. In past partial shutdowns, “the world hasn’t ended.” But if the political fallout lands more on Biden than on Republicans, it wouldn’t hurt the Journal’s feelings. Or Republicans’. But then, they are slow learners.

America does not negotiate with terrorists. Unless, of course, they’ve been elected to Congress.

The assumption is that if only Biden will give the Freedom Caucus everything they want — in other words, destroy all of his accomplishments and more — then they will allow the government to pay its debt. No. They. Will. Not. Once they realize Biden will give them anything there will be no end to it, even if the country defaults. Krugman asks the right questions here:

So much writing on the debt ceiling right now seems utterly behind the curve. The question now is what does Biden do if Rs refuse any deal that doesn’t effectively give them complete control of US policy? Or maybe even actively seek financial crisis? 

Unilateral actions might fail — or be blocked by a partisan Supreme Court. But what are people pointing out these risks saying that Biden should do? Capitulate completely? (Even that might not be enough). If that’s the plan, say it clearly.

That is the plan but it won’t be enough.

The only legislative way out of this is for the Senate to pass a bill and send it back to the House. If Kevin won’t bring it to the floor, then they have have to go the 14th Amendment route and hope the Supreme Court isn’t so batshit insane that the will crash the world economy (and it might crash anyway just because of the chaos.)

Otherwise, MyKevin will have to give up his job and bring a Senate bill to the floor against the wishes of the insane clown posse. The vote will then be won with Democratic votes and some Republican votes (depending on what’s in it the majority could go either way.) And then Marjorie Taylor Green, under orders from Dear Leader, will present a motion to vacate the chair and MyKevin will lose the Speaker’s chair. (Some centrist Dems have said they would vote for him if it came to that but it’s hard to see how Kevin could continue with a full revolt of the Freedom Caucus on his hands.)

These are the two possibilities. The winguts are so crazy they staged a full blown spectacle for the Speaker’s race. And they loved it. Does anyone think those loons are going to give in on this debt ceiling short of forcing Biden to roll back the entire 20th and 21st century? And even then, they’d just start agitating for the return of the Confederacy.

Being whipsawed is tiresome

Right out of the gate this morning, the U.S. Supreme Court will review a racial gerrymandering case out of South Carolina.

BREAKING: U.S. Supreme Court will hear case arguing that South Carolina’s congressional map is racially gerrymandered. In the lower court, a three judge panel found that the state’s 1st Congressional District violates the 14th Amendment and must be redrawn.

Politico:

— If the Supreme Court doesn’t act on Moore v. Harper, a case before the high court that addresses the independent state legislature theory, which gives state courts little to no role in interpreting election laws set by state legislatures, some legal experts are warning there could be chaos heading into 2024. Our Zach Montellaro explains: The future of the case “in question because a state-level ruling could make it moot. The nation’s highest court has also signaled that it may skip out on issuing a decision. That concerns even some strident critics of ISL, who worry that the lack of a clear decision risks injecting disarray into the 2024 election and the litigation that is guaranteed to accompany it.”

So don’t count out ISL just yet. We counted Donald Trump out in 2016. Maybe we shouldn’t with Ron DeSantis either.

I wrote a dissertation on presidential nominations and I’m here to tell you that after months of head to heads showing Trump losing the swing states, Ron Desantis is gonna start looking pretty damn good. See 2008, John McCain. pic.twitter.com/hqF2WD5LFu

— Rachel Bitecofer 🗽💡🔭🦆 (@RachelBitecofer) May 15, 2023

That doesn’t mean he won’t collapse on a primary debate stage with Trump.

Ugh. At least there’s Randy Rainbow.

I’ve already started campaign strategizing for Ron DeSantis because that’s what gay besties are for.😘 #WelcomeToDeSantis #Parody #NewVideo pic.twitter.com/gbWHe6vg3y

— Randy Rainbow (@RandyRainbow) May 15, 2023

This piece by Dan Pfeiffer in the NY Times makes the case. This has got to stop:

After months of unity, some Democrats, reverting to their natural state of disarray, are breaking ranks to pressure the president to the table. A poll from Echelon Insights showed that voters support the idea of negotiating over the debt limit.

Mr. Biden’s strategy is undoubtedly risky. But from the perspective of someone who had a front-row seat inside the White House to the last two debt-limit standoffs between a Democratic president and a Republican House, Mr. Biden’s refusal to negotiate on the debt ceiling is the best strategy. Facing an urgent deadline and a daunting political context — with the House speaker, Kevin McCarthy, joined to an unstable, far-right bloc of Republican representatives who limit his maneuverability — the president can ideally find a way to extend discussions around the debt ceiling and fiscal issues. Otherwise, he will have to find a way around the House.

The president must know that Mr. McCarthy is not a negotiating partner who can be trusted to deliver. The speaker’s fate is in the hands of representatives — including many House Freedom Caucus members — who have shown very little willingness for compromise or good-faith negotiation. With their threats to plunge the country into default for the first time in its history, they can plausibly be seen as a threat to the nation’s economy and its stability as a global financial power.

That puts severe limits on the terms of any discussion about the debt ceiling. Still, Republicans won control of the House in the midterms. They have a legitimate voice in any debates over the country’s fiscal future. Mr. Biden should negotiate with Mr. McCarthy over the budget and other fiscal matters and propose a process for doing that — but first, Mr. McCarthy must remove the threat of imminent default.

President Barack Obama confronted similar scenarios twice. In 2011, he spent months negotiating with Speaker John Boehner to strike a “grand bargain” that would help solve America’s longstanding fiscal problems. But Mr. Boehner couldn’t deliver his caucus in support of the framework, and the nation hurtled toward default. With only a few days to go, negotiators were able to strike a smaller agreement that satisfied no one, left both sides angry about the result and was damaging for the country. The United States’ credit rating was downgraded for the first time in the nation’s history, and borrowing costs for the government went up.

Mr. Obama’s approval rating slumped, even dipping below 40 percent in Gallup polling. Our internal polling in the White House showed the president losing re-election handily to a generic Republican. A painful lesson was learned: Negotiating with the ticking clock of a global financial collapse was a losing proposition.

In 2013, Republicans tried to leverage the debt limit again — this time they targeted his signature legislation by pushing to defund the Affordable Care Act. Mr. Obama declared that as a matter of principle, he would not negotiate over the debt limit. It was Congress’s job to lift the debt limit, he said, and Republicans would do it or take the blame for sparking a global recession. From the White House, we watched the G.O.P.’s poll numbers go into the toilet. Their polls must have shown the same thing, because they eventually abandoned their demands and passed a clean debt limit bill.

Republicans are at it again, targeting a signature piece of legislation — this time, the Inflation Reduction Act — and demanding draconian spending cuts.

Mr. Biden was deeply involved in the decision-making during the Obama-era debt limit fights. He knows what is at stake. His re-election campaign will undoubtedly rely in part on his record of bipartisan accomplishment in the first two years. His reputation as someone willing to compromise with the other side is a political asset.

Refusing to negotiate with Mr. McCarthy is off brand. But even if the optics of Mr. Biden seeming obstinate are bad, they pale in comparison with the devastating consequences of default. Sure, the public is likely to blame the House Republicans for pushing us over the cliff. That’s what our polling showed in 2011 and 2013. But after the dust settles, the incumbent president running for re-election will pay the political price for the dire economic consequences.

The only politics that matter is avoiding default — and Mr. Biden’s approach is the best way to do that. It also offers Mr. Biden a chance to highlight two qualities that he will likely run on in 2024: He’s a man of principle, but he’s also a sensible man who can get things done.

The biggest impediment to negotiations is that, with Mr. McCarthy, the president faces a weak negotiating partner. That said, Mr. Biden should have two objectives. The first is to make sure the debt limit is extended through the election so that we are not right back in this precarious position next year.

To get that, he will need to work with Mr. McCarthy to find a framework for fiscal negotiations. Perhaps that means drawing Mitch McConnell, the Republican Senate leader, into the process. Mr. McConnell has repeatedly said he has no plans to get involved and that it was up to Mr. McCarthy and Mr. Biden to work out a deal. But in the past, deals with Mr. McConnell’s imprimatur were able to garner enough Republicans to succeed in the House and save face for a Republican speaker.

This will not be easy. The House Republicans might be too far right to be part of a deal. After all, any deal between the president and the speaker will still require a majority of the House and at least 60 Senate votes. It’s frankly very hard to see a deal or deals that could have Mr. Biden’s support as well as the support of a majority of House Republicans — especially since Mr. McCarthy has made it clear that, to continue his speakership, his strategy is to stay in the good graces of the Freedom Caucus and other MAGA Republicans.

Still, the most important reason to avoid entering into negotiations over the debt limit itself goes beyond politics. It is why, in 2011, Mr. Obama pledged never again after trying to negotiate with the Republicans. Allowing the Republicans to use the threat of default as extortion could cripple the remainder of Mr. Biden’s presidency.

This time it’s spending cuts and work requirements for Medicaid recipients. What happens when the debt limit comes up again next year? Will the Republicans demand a federal abortion ban? A pardon for the Jan. 6 perpetrators?

Another option reportedly under consideration by the White House is whether the president can use the 14th Amendment to ignore the debt limit. Even if he can, it would surely be a break-glass moment: Invoking the 14th Amendment could buy a little time to keep paying creditors, veterans’ health benefits, Social Security and the like. But it would put the fate of the global economy in the hands of the courts, and it’s not clear how the markets would react to that uncertainty.

The 2023 debt ceiling crisis seems much more dangerous than the ones President Obama dealt with when I worked in the West Wing. A lot is going to happen in the next few weeks, but if Democrats want to avoid default and once again save the nation from radical Republicans, their best bet is sticking with President Biden and calling the Republicans’ bluff.

It’s risky no matter what. But empowering these loons will only lead to worse. They have shown over and over again that nothing will appease them.