Miami Will Elect a New Mayor Tomorrow

The TN-07 special election last week was not really a bellwether because Republicans always win in Tennessee. Nevertheless, it was interesting because the Democrat, Aftyn Behn, was merely beaten but not whipped. Tomorrow we have a real bellwether election: the runoff for mayor of Miami. There, Eileen Higgins (D) will face Emilio González (R) The election is nominally nonpartisan, but that fools no one. No Democrat has been elected mayor of Miami since 1997—and in that case, the election of Xavier Suzarez then was marred by fraud. The last time a Democrat was elected mayor of Miami in an election where there was no fraud was in 1993, more than 30 years ago, when Democrat Stephen Clark claimed the prize. Donald Trump narrowly lost Miami in 2024 but won Miami-Dade County in 2024 55% to 44%. A big win by Higgins tomorrow in red Florida would send out shock waves that would reach the Pacific Ocean.

As a city of 500,000 people packed into a small area on the coast, Miami faces many problems. A big one is rapid growth, especially from immigrants from Central and South America, resulting in huge pressure on housing, transportation, and public services. Climate change, in the form of extreme heat and flooding, is not an abstract issue that is of no concern to anyone now alive. All these things will land on the new mayor's plate in January.

For the Nov. 4 general election, 13 candidates were on the ballot. Higgins finished first at 35%, with Gonzalez second at 19%. The other 45% of the votes were scattered among the remaining 11 candidates. How the supporters of the minor candidates vote tomorrow will determine who becomes mayor of Florida's second biggest city (after Jacksonville, which has double the population of Miami). Higgins served on the Miami-Dade County Commission for 8 years. Her main issue is building more affordable housing. She is also concerned about flooding caused by climate change. In addition, she sees federal immigration actions in Miami as "inhumane and cruel."

González is a former Air Force colonel and former Miami city manager. His big issue is fixing the city's permitting system. He says that "affordable housing" is a misnomer. He wants to use city parks as water-storage reservoirs. He has been endorsed by both Trump and Gov. Ron DeSantis (R-FL).

There are five key issues that have dominated the runoff campaign:

• Immigration: This is the issue where the candidates diverge the most. González is happy for the Miami police to be deputized as ICE officers so they can round up immigrants. In a televised debate last week, he said: "I cannot in good conscience fight the federal government and defend a rapist or a murderer, like happens in other cities." Higgins said she is sorry the city didn't join with South Miami in suing the federal government about immigration raids. In the debate, she said: "First of all, they said they were gonna go after criminals, but guess what? They're going after everybody." given how many immigrants Miami has, this could be a deciding issue for voters there.
  
  
• Housing Affordability: Higgins has said that the only way to solve the affordability crisis is to build more houses. She is in favor of using city land for housing and supports the idea of creating an affordable-housing trust, which would use city money to build more housing. González has said that building more housing isn't the solution. Instead, he wants to reduce property taxes to make housing more affordable. This would help people who already have a house but wouldn't be of much use to people who don't have a house and want one.
  
  
• Outside Employment: The mayoralty of Miami is a part-time job. Elected officials are allowed to have an outside "real" job. The city is de facto run by the city manager. Higgins, a trained mechanical engineer, is focusing on the nuts and bolts of running the city government. She has said she would be a full-time mayor and live on the $97,000 salary (considerably less than the $470,000 the city manager makes). González is a partner in a California-based asset management company. The head of that company donated $500,000 to his campaign. González has said the CEO is an old friend of his and expects nothing in return for his donation. We smell a dead fish alligator here. He has also said he will continue working for the company even if he is elected mayor. After all, who wants to live on a crappy $97,000? In the HR world, they say: "If you pay peanuts, you get monkeys."
  
  
• City Leadership: Both candidates want to replace the current city manager. Higgins said: "We need somebody that is outrageously innovative, tech-facing, that can implement the new ideas that we need to move Miami into 2026." González said: "I'm looking for a city manager that's well-respected, that has gravitas, that is experienced, that when people point at him, they say, 'You know what, it's a new day.'"
  
  
• Governance: Higgins wants to move city elections to even years to align with House elections and save money. González thinks the voters should decide but is afraid if city elections are in even years, local elections will be overshadowed by state and national ones. Also, Miami doesn't have a city council. It has a board of commissioners, though—one per district, with limited responsibilities. Higgins thinks that the current five-member commission is too small for a city of 500,000 people and wants to increase the size to nine. González does not want to expand it, at least not now.

Trump's recent attacks on boats near Venezuela could play a role in the election. Many of Miami's residents originally came from some South American dictatorship or other and would love to see Trump invade Venezuela, capture and kill Venezuelan strongman Nicolás Maduro, and force regime change. On the other hand, America Firsters voted for Trump because he promised to stay out of foreign wars.

In short, there are many issues in play, some local and some national. Interpreting the results will be tricky, but still instructive. (V)

Supreme Court De Facto Approves the New Texas Map

The Supreme Court continued to wreak havoc on the American legal system and electoral system through its use of the shadow docket. In yet another unsigned edict, written in record time and once again excoriating the careful work of the three-judge panel on the lower court (written by a Trump appointee), the Court gave Donald Trump and Texas a free hand to draw new maps regardless of the evidence of racial discrimination.

On Thursday, the Supreme Court granted a stay of the Texas district court's ruling striking down Texas' new 2025 maps as an illegal racial gerrymander. In doing so, the Court did what they always do, which is to give Trump a win without actually ruling on the merits of the case. But even worse is they've thrown the entire jurisprudence around race discrimination in elections into disarray without, of course, acknowledging any of it.

The opening paragraph is the clearest indication of how this Court's partisan majority views its role. They make the practice of mid-decade redistricting sound so mundane as if the fact that several other states have caved to Trump's pressure, along with California's response, somehow inoculates Texas from any finding of wrongdoing. It shouldn't matter, but in fact it is rare and Texas started it.

Associate Justice Elena Kagan's short dissent is worth a read because it reminds us of where we were this past summer when Trump's pressure campaign on Texas to redraw its Congressional maps began. At that point, no other states were contemplating mid-decade redistricting. Gov. Greg Abbott (R-TX) and the Texas legislature were reluctant to do a blatant political gerrymander because: (1) they just redrew the maps in 2021 after the 2020 census and had heavily gerrymandered them then; and (2) politicians choosing their voters in a mid-decade gerrymander is very unpopular and could backfire. So, they put their heads together and came up with an ingenious plan. Harmeet Dhillon, Trump's former personal attorney, who is now heading up the DoJ's Civil Rights Division, would send a threatening letter to Abbott saying that the 2021 map violates the Voting Rights Act because it contains so-called "coalition districts"—districts that are drawn to allow majority-minority districts where one race does not predominate.

It was all a ruse, of course, because coalition districts are legal, and no one disputes that. Nevertheless, this gave Texas the political cover it felt it needed to obey Trump's demand. So, the legislature redrew the Congressional maps, ostensibly in response to CRD's threats, to remedy the alleged violations: They erased the coalition districts and drew three districts that were either majority-Hispanic or majority-Black that barely make it past the 50% mark (further diluting minority votes), which all just happened to wipe out five Democratic Congressional seats. Mission accomplished.

What's especially pernicious about the five paragraphs it took for the Court to erase the district court's careful work in sifting through all the evidence after 9 days of hearings and countless witnesses is that it doesn't dispute that race drove Texas' redistricting process. Instead, the majority relies on two laughably lame excuses, which they don't even bother to support with legal or factual references (in fact, the one case cited is to a Supreme Court case that holds the opposite!). The Court said it was staying the district court's decision because it failed to give Texas the benefit of the doubt, or a presumption of good faith (in fact, the court did, but direct evidence overcame it) and continued the case despite the plaintiffs' failure to include their own map.

Associate Justice Samuel Alito's concurrence, which is not the majority opinion, also claims that the court should not have gotten involved because Texas is in an "active primary campaign." Which begs the question of what time period is not an "active primary campaign" and also ignores the fact that Texas finalized this map in August and the lawsuit was brought even before Abbott signed off on it. The parties and the court moved with lightning speed. But according to Alito (and Associate Justices Neil Gorsuch and Clarence Thomas, who joined his three paragraphs of searching and thorough analysis), state legislatures should deliberately wait until the last minute to draw unconstitutional maps to avoid judicial scrutiny. Alito fails to mention that the 2021 Texas map will still be used for a January special election to fill Rep. Sylvester Turner's seat. And the Court hasn't yet ruled on a Voting Rights Act case that will impact Louisiana's maps. Perhaps those factors explain why his is just a concurrence.

But more importantly and ominous is the Court's clear edict to lower courts: Let Republicans choose their voters even if they violate the Fifteenth Amendment to do it. To the Texas district court: Just ignore all the political maneuvering and the CRD's "threat" as cover—we know what they were really doing, which is to guarantee five more Republican seats to satisfy Trump's demand. The fact that Texas also broke up coalition districts and further diluted minority votes was just icing on the cake, but not their true purpose. Nothing to see here.

Because this order is just a stay pending an appeal of the lower court's order, the Court could later take it all back and decide the case differently on the merits. By then, of course, the issue will be moot and the 2026 midterm elections will have been held under the new, 2025 Texas map. In fact, the order says that if Texas abandons its appeal (which will magically happen after the election if all goes according to plan), the Court's order will "terminate automatically." How convenient. This Court's cynicism knows no bounds. One wonders whether the lower courts will bother to keep holding hearings and gathering evidence to actually rule based on the law and facts and will instead simply ask the Supreme Court what result it wants and work backward from there.

In the end, all these machinations probably won't make any difference and could backfire spectacularly, especially with the once-reluctant Abbott now crowing about how entrenched Republicans' power is in Texas thanks to this decision. Does he think that suddenly there's an appetite for rigged elections or maybe since California responded, it's TX v. CA? It's a risky bet.

And can anyone really take this Court seriously anymore as an unbiased and independent arbiter of the law? They didn't have to get involved here, but they obviously saw that the case against California's map has no merit and so decided to let the Texas map stand, the Fifteenth Amendment be damned. And the shadow docket is the perfect vehicle since they can play politics in five short paragraphs devoid of legal substance.

It's always risky to try to read the tea leaves with this Court, but it seems obvious where this is going: The VRA is toast. Mid-decade redistricting had been rare, but the Court seems to be not only encouraging it but also sanctioning any method to keep Republicans in power, including overt violations of the Fourteenth and Fifteenth Amendments to the Constitution.

The Court stayed out of the 2020 election fights. We are not alarmists here, but this is the clearest signal we've seen yet that the Court may not sit the next one out. With each decision, this court seems to show its willingness to interfere in elections to ensure the outcome it wants. Maybe they've convinced themselves that no one can hold them accountable or that Democrats will pursue major reform if they ever get back in control again and, like Trump, they'll do all they can to retain power. These are dark days, indeed. (L)

Can Congress Create Independent Agencies?

Conservatives have long believed that when there is a Republican president, he should be in charge of all federal agencies and be able to fire and hire directors of them at will, even if the law says he can't do that. When a Democrat is president, they tend to emphasize the law and the fixed terms agency heads have. This is known as the Unified Theory of the Presidency (or something).

That theory will get a big test today. The Supreme Court will hear a case in which Donald Trump fired Rebecca Slaughter, a member of the Federal Trade Commission, whose term, by law, does not expire until 2029. But he doesn't like her, so he believes that is sufficient grounds to fire her, law or no law. He has gone to court to argue that Congress does not have the power to create independent agencies at all and the president can fire anyone in the Executive Branch whenever he wants to, for any reason or no reason, even if the law says he can't. If the Court agrees with him, this will mean the end of all independent agencies, like the FBI, FCC, FEC, FDA, FDIC, Fed and FTC, and also those hundreds of agencies whose initials don't start with "F." It will mean effectively that every agency must do what the current president wants. It will also mean that every time a new president is elected, all the agency heads and boards will be replaced and they will all be partisan. As a consequence, will the government be able to find competent people to run agencies if they know it might be for only 4 years? It could greatly weaken the government. For Republicans, this is a feature of the case, not a bug.

A decision for Trump will also change the balance of power between Congress and the president, giving the president much more power over federal policy than he has now. It will also make the agencies much more partisan. Currently, many agencies have boards with members who serve staggered terms, so some members are Democrats and some are Republicans. If the president can fire all agency heads and all boards on Day 1 and replace them with his own people, he will be able to get more done, but policy could radically shift every 4 years when a new president shows up.

The ruling won't come until June, but the conservative justices have been champing at the bit for years, just waiting to do this. Of course, if a Democrat is elected president in 2028 and then fires every one of Trump's appointees, which is almost certain, they may not like it so much. Their goal is probably to make it very difficult for Democrats to get elected, though.

Precedent on this issue goes back 90 years to the 1935 decision in Humphrey's Executor v. United States. In that case, Franklin Delano Roosevelt fired William Humphrey of the FTC over policy disagreements, the reason Trump wants to fire Slaughter. In a 9-0 ruling, the Court said that Congress had the authority to create independent agencies, like the FTC, to keep them out of partisan politics. This authority is what Trump wants the current Court to destroy. (V)

Can the Supreme Court Be Reined in?

With its decision to allow Texas to tear up its map mid-cycle just to give the Republicans more House seats (see above) the Supreme Court has defined itself as a wholly owned subsidiary of the Republican Party. There is no other way to explain it. The question for the Democrats now is: If they get the trifecta in 2028, which is probably at least a 50-50 proposition, what can they do about it? Here are a few thoughts on what they could do then. However, all of them require the Democrats to understand that politics ain't bean bag and do a mode switch from being Dr. Jekyll to being Mr. Hyde. It won't come easy, but bringing a water pistol to a gunfight is not a good strategy.

All of the possibilities below require Congress passing new laws. This immediately brings up the issue of how to deal with the filibuster, so let us get that out of the way first. All of these require the Democrats to understand that if they have full power, they do not have to be nice to their opponents, who certainly have not been nice to them recently. They merely have to be technically legal. Here are some ways to get around the filibuster:

• Abolition: This is conceptually the easiest way. Just change the Senate rules to abolish it completely. There is no rule stating that it takes 60 votes to pass a bill. Rule 22 allows a senator to speak as long as he or she wants to, on any subject the senator thinks is germane to the matter at hand unless cloture is invoked by three-fifths of the senators. Replace Rule 22 with a new rule stating that once debate has started, each senator may speak for up to 1 hour unless the full Senate approves a different limit.
  
  
• Change the Threshold: Currently the threshold for cloture is three-fifths of the Senate. The threshold could be changed to 51 votes or whatever number of seats the Democrats hold in 2029. The "argument" could be that "three-fifths" rules are a throwback to a different three-fifths rule in the Constitution that is racially disgusting (for allocating House seats, slaves were counted as three-fifths of a person).
  
  
• Carveouts: There are many "carveouts" to the filibuster now. Confirmation votes for judges and justices cannot be filibustered. Budget reconciliation bills cannot be filibusterered. Fast-track trade agreements cannot be filibustered. There is actually quite a long list of carveouts. Carveouts could be added for election laws, gerrymandering laws, and anything thing on the Democrats' menu.
  
  
• The Jimmy Stewart Solution: The bloodiest option is to make the minority party actually filibuster. Read the Bible. Read Shakespeare. Read the Houston phone book. Read whatever you want. But Senate rules forbid sitting, eating, drinking, going to the bathroom or leaving the well of the Senate during a speech. Run the Senate 24/7 and have the presiding officer enforce the rules vigorously. If a senator forgets his reading glasses when he begins speaking, deny a request to go to his or her desk to get them and countermand a request to the Senate's sergeant-at-arms to fetch them. Let each senator get one turn to speak until he or she drops of exhaustion. If that happens, call for a quorum before calling for an ambulance.
  
  One strategy here would be to spend the spring of 2029 compiling a giant bill with Sec. 1 restricting the Supreme Court's appellate jurisdiction (see below), Sec. 2 being the "John Lewis Voting Rights Act," Sec. 3 being "For the People Act," Sec. 3 being the "Antigerrymandering Act," and so on. A thousand pages, 2,000 pages, whatever it takes. Then hold the debate in August (when the Senate is normally on vacation because the weather in D.C. in August is unbearably hot and muggy). Instead of having the air conditioning on in the Senate chamber, the presiding officer would instruct the sergeant-at-arms to set the thermostat to 110°F and turn the heating system to the absolute maximum it can go.
  
  With the chamber at 110°F, how long could senators stand and talk with no water? 3 hours? 6 Hours? 12 hours? 24 hours? We don't know, and maybe young and vigorous senators like Sen. Josh Hawley (R-MO) could match Sen. Cory Booker (D-NJ) at 24 hours, but we really doubt that Sen. Chuck Grassley, who will be 95 in August 2029, could manage even 6 hours. Suppose 48 Republican senators averaged 12 hours each—and that would mean each 6-hour senator would need a matching 18-hour senator to get the average to 12. Would this be nice? No. Was it nice when Sen. Mitch McConnell (R-KY) refused to hold a vote for 9 months on Barack Obama's replacement for Antonin Scalia when he died, and then rammed through Amy Coney Barrett in 5 weeks after Ruth Ginsburg died? Also no. Again, politics ain't bean bag. If 48 senators averaged 12 hours each, in 24 days they would also have spoken as long as they could and a vote would be taken. If they could average only 8 hours each, the debate would take only 16 days. Would the Democrats be unhappy taking 2-4 weeks get all their priorities through? We doubt it.

For more ways, see this analysis. So much for the filibuster. Now assume the Democrats could pass whatever bills they wanted, either individually or as one or more massive bills, if need be. What could they do to rein in the Supreme Court by legislation, since we are assuming a constitutional amendment is unrealistic in the current polarized climate.

First, they could note that SCOTUS basically runs the country now. Every major issue ends up there now and is generally decided along party lines. That was never the founders' intention. Their model was the British system, except with an elected king with limited powers who could be impeached if Congress felt he had abused his powers. In sixth grade, kids learn about the "checks and balances" and the three co-equal branches of government. The checks and balances are real. There are many of them. The "co-equal" stuff is nonsense. The branches are not co-equal and were never meant to be. Art. I of the Constitution is about Congress. Congress was put first because it was intended to be the most powerful branch. It was given the power to make laws, raise taxes, and determine how the government would spend the people's money. The president is in Art. II. His job was to run the Executive Branch, enforce the laws Congress passed, and be commander-in-chief of the Armed Forces. The Judicial Branch is in Art. III and was practically an afterthought. In the British system, the courts did not run the country. Art. I is 2,203 words; Art. 2 is 1006 words; Art. 3 is 361 words. That says something about how important each one was perceived to be.

And as to those "checks and balances," there aren't a lot of checks on the Supreme Court. Maybe it is time for some. Let's consider some ways Congress could rein in SCOTUS:

• Expand the Court: This is the obvious one. Nothing in the Constitution sets the size of the Supreme Court. It has varied from 7 to 10 members over time. The size is set by law. Congress could pass a law setting it to 13, giving the president four new picks and Democratic appointees a bare 7-6 majority. But some people consider 13 an unlikely number, so they could go to 15 and a more solid 9-6 majority.
  
  
• Change the Algorithm: Currently the Court is set to 9 members by law and new justices are appointed only when one resigns or dies. It doesn't have to be like that. A new law could allow the president to nominate a new justice after each new Senate is seated, every 2 years. In this way a two-term president would get four appointments, guaranteed. Alternatively, one appointment per presidential election victory. This solves a current problem that how many appointments a president gets is determined partly by God (deaths) and partly by strategic retirements of the justices. In this scheme, vacancies would not be filled at all and the size of the Court would vary over time. Sometimes it would be an even number and the Court could split, say 4-4 or 5-5. In that case, the circuit court ruling would hold, but only for its own circuit. It the Court is so divided, maybe it is better not to have a narrow national ruling, often along party lines.
  
  
• Jurisdiction stripping: The second paragraph of Art. III, Sec. 2 reads as follows:

  In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (Our emphasis)

  In other words, Congress has the clear authority to strip SCOTUS of its appellate authority in almost any way Congress so decides. Elections? Nope. Abortion? Nope. Guns? Nope. Plaintiff is a redhead? Nope. Congress can make whatever exceptions it wants to. Could Congress do something stupid? It could, and has upon occasion, but every 2 years the voters can replace the entire House and one-third of the Senate if they don't like the job Congress is doing.
  
  One obvious first exception is to ban SCOTUS from taking on any cases involving the Court itself or any of the justices. The principle here is: Nemo Judex in causa sua (No one shall be a judge in their own case). To give this teeth, the law could make it a federal felony for a justice to vote on any case taken in defiance of Congress' ban, with a penalty of 3-36 months in prison, to provide for plea bargains (which might involve resigning to get a shorter sentence). The Constitution does not state that justices serve for life. It states that justices serve during "good Behaviour." This new law could state that being convicted of a federal felony does not constitute "good Behaviour." So there would now be two ways to remove a justice: impeachment and conviction or the justice being convicted of a federal felony.
  
  
• Judicial Review: Nothing in the Constitution gives SCOTUS the power to throw out laws duly passed by Congress. Nothing. Zero. Zilch. Nada. In 1803, in Marbury v. Madison, the Court just did it and nobody said: "Whoa!" There may have been some tradition before that, but for textualists and originalists (including many Republican-appointees to SCOTUS), what matters are the actual words in the Constitution and there is nothing there about tossing out duly passed laws. Congress could pass a law saying that "judicial review" really is a thing and the Court may declare a law to be unconstitutional, but only in a unanimous decision. If one or more justices vote no or don't vote, the law stands. This would prevent narrow partisan decisions.
  
  It is possible the Court might bridle at such a law and declare that law to be unconstitutional. However, if Congress has already passed a law stripping the Court of jurisdiction in cases involving itself and making it a federal felony for justices to vote on cases Congress has ordered it not to take on, the AG could indict any justice who voted on such a case (and make it clear in advance that indictment will follow any such vote). If a justice is convicted and loses the appeal in the D.C Court of Appeals, the president could then go on television and say: "Since by law the Supreme Court may not hear appeals on cases involving itself or its members, the case is over and the district judge will now issue the sentence. And by the way, since a recent law defines being convicted of a federal felony as "Bad Behaviour" today I will send my nomination of [X] as the replacement to the Senate. If the Senate confirms her, [X] will replace the convicted justice." If the Senate votes to confirm and the old justice is in prison, who would be there to prevent this, especially since the Supreme Court had already been stripped of the authority to take on this kind of case?
  
  Would this cause a constitutional crisis? Not really. Consider this situation: Imagine that five of the justices are vegetarians and animal lovers. In a case relating to the powers of the FDA to regulate food safety, the Court's ruling stated that animals have a Fourteenth Amendment right to due process and no slaughterhouse may kill a cow unless the cow has had its day in court with a government-appointed attorney and the judge has sentenced the cow to death. Then the president announced: "Congress has never granted the Supreme Court the authority to ban meat, so I am just going to ignore its ruling and send the veep over to McDonalds to fetch me a nice hamburger for lunch." Would that be a constitutional crisis?
  
  Would passing laws stripping the Court of jurisdiction and making judicial review explicit be daring (but legal) moves? Sure. Was McConnell's decision not to bring Merrick Garland's nomination to a vote for 9 months a daring (but legal) decision? Sure. Guess what? Both sides can play the game of using all of your power to the max.
  
  
• A Constitutional Court: Congress could create a seven-member Constitutional Court, and insert it between the circuit courts and the Supreme Court. It would handle all cases involving the constitutionality of laws. There would be no appeal from it because the law creating this court would strip the Supreme Court of the appellate authority in cases decided by the Constitutional Court. The Supreme Court would still have the authority to decide how much water Arizona and Colorado could each take from the Colorado River, whether California could have stricter mileage laws than the federal one, and other non-constitutional cases. This is not a permanent fix, but does rein in the current Supreme Court. Of course, the Constitutional Court could operate under some of the rules outlined above, or special rules (like, the seven deciding justices are picked at random from a group of 20 appellate judges for each case). That would serve to reduce the impact of partisan gamesmanship.
  
  
• Senior Status: Congress could pass a law stating that justices must take senior status at some age, such as 65, 70, or whatever the current Social Security retirement age is. A senior justice would draw his or her full salary until death, could attend all meetings the justices held, cite laws and precedents, give advice on how to vote, and so on, but would not have a vote on any case. Could Congress enact such a law? Sure. All it would need is 218 votes in the House, 51 votes in the Senate, and a presidential signature. Bingo. A new law. That's where new laws come from. They are not brought by a stork. Could the Supreme Court declare the "senior status law" unconstitutional? Not if Congress had already passed a law stripping the Court of jurisdiction in cases involving itself.
  
  One subtle issue we haven't addressed is what happens to cases that the Court is not allowed to consider. Does the circuit court decision hold? Can circuit courts declare laws unconstitutional? That has to be made explicit in laws stripping the Supreme Court of appellate authority.

A lot of these things relate to Congress taking back its Art. I powers and not being a doormat. Would SCOTUS be happy? Possibly not, but Congress can relieve it of the authority to intervene in cases where Congress doesn't want that. Congress unquestionably has the authority to limit SCOTUS' appellate jurisdiction. The words are right there in the Constitution as part of those good ol' checks and balances.

While it is at it, Congress could also take back a lot of the power the president has in emergencies by passing a law saying a presidential emergency declaration is valid for only 7 days, after which both chambers of Congress have to confirm the emergency and agree on how long the special emergency presidential powers last. Would any of the above be bold? Sure, but unlike the current administration, it would be bold and legal at the same time. (V)

Trump Has a Vision for National Security

Donald Trump has released his national security strategy, and it is very different from Joe Biden's. Biden's emphasized being friends with other democracies and opposing Russia and China. Trump's view of the world is tripolar. The U.S. gets to dominate North and South America, Russia gets to be the boss over Europe, and China owns Asia. Basically, big countries get whatever they want, and tough luck for everyone else.

There is a renewed emphasis in the plan on the Western Hemisphere, essentially a revived version of the Monroe Doctrine. Here are some of the key aspects of the new strategy:

• The Caribbean: There will be much more emphasis on the Caribbean and suspect drug-smuggling boats, even though relatively few drugs are smuggled into the U.S. by boat. A possible war with Venezuela with the goal of getting rid of strongman Nicolás Maduro is a real possibility, despite Trump's campaign promise to stay out of foreign wars. If Trump carries out his threat to invade Venezuela and U.S. troops are killed in action. That won't go over well with the America First types. In the worst case scenario, a few U.S. pilots are shot down and taken hostage. All the bluster in the world won't get the hostages released. Unfortunately for Trump, he can't ask Jimmy Carter about hostage crises because he's dead. Sometimes these things don't turn out so well. Tariffs will also be used to pound countries in the Hemisphere into submission, although the Supreme Court could throw a monkey wrench in that plan.
  
  
• Europe: Trump's view (which he is undoubtedly getting from the two Steves—Bannon and Miller) is that European civilization is surrendering itself to hordes of immigrants, so he is allying himself with far-right political parties that want to block all immigration. Trump could very well meddle in intra-European affairs to help friendly (i.e., neo-fascist) parties there. He also wants the war in Ukraine to end, and the easiest route is by getting Ukraine to surrender. The Ukrainians might not be so keen on that, though.
  
  
• Taiwan: There is no major change on Taiwan. The strategy is to keep China from taking over Taiwan but without saying so out loud, so as to not antagonize China, which sees Taiwan as a breakway province. The plan also has calls to pressure Japan, South Korea, Australia, and of course, Taiwan, to increase defense spending so the U.S. doesn't have to spend more in the region.
  
  
• Middle East: The plan notes that the only reason the U.S. was every interested in this backward region was because it had a lot of oil. Now that the U.S. is self-sufficient in fossil fuels—and is indeed, a net exporter of them—Trump doesn't care what happens there. Disentangling from the Middle East is easier said than done, though, since an important part of Trump's base, the evangelicals, cares very much what happens in Israel.
  
  
• Democrats: The Democrats slammed the plan as a global retreat that makes the U.S. and its allies weaker. Sen. Richard Blumenthal (D-CT) said that the plan "foreshadows setbacks—forsaking allies, throwing Ukraine under the bus, and abandoning key strategic goals and basic values. It will make America weaker, not safer. America first is America alone, and we'll pay the price."

What is almost as important as what is in the plan is what is not in the plan. Russia is barely mentioned. If gets 4 paragraphs and there is no mention of it invading a neighboring democratic country and starting a war that has already led to 1.5 million casualties. Instead, the plan seems to depict the U.S. as a neutral party, not supporting Russia but also not supporting Ukraine or Europe.

Also missing is the almost daily battle with Chinese government hackers who are constantly probing U.S. government and corporate networks, looking for weaknesses and possibly planting trapdoors and time bombs for future use. There is no discussion of China as a future military threat to the United States and how the U.S. plans to counter it, if at all. This absence could be because Trump is planning to visit China in April and wants to be received as a hero and feted, not treated as a fearsome enemy.

Additionally, there is nothing at all about North Korea, which is estimated now to have 60 nuclear weapons. Nor is there anything about Iran, whose nuclear weapons program will probably be back to full strength soon after the botched bombing of their nuclear facilities in June.

In the past, these plans talked about containing hostile and rogue countries and limiting their reach on the world stage. There is none of that in this one.

Keep in mind, this is only a plan. Execution is also important. Is Secretary of Defense War Pete Hegseth up to pulling off such a major revision of America's role in the world? We may find out the hard way. (V)

Trump Is Now Blackmailing Red States

Donald Trump's BBB has disastrous consequences for medical care in rural areas, most of which voted for him in 2024. Hospitals are closing and the general level of care is going down. Addiction is up. People have to drive for hours to get care in some places.

So how is Trump treating these people, his supporters? He found a pot of $50 billion to use to alleviate some of their problems. Good for him. He cares.

But there is a catch, unfortunately. To get any money, states have to change their laws to agree with principles he approves of. For example, people on SNAP are restricted in what they can buy and states have to expand telehealth, so people can't go to an actual doctor, but have to see the doctor on their phone or, if they have one and they have broadband, on their computer. Another thing Trump likes a lot is "junk insurance." This is cheap health insurance that doesn't actually insure very much and has huge thresholds and co-pays that make it basically worthless—except to the insurance companies, which like the policies very much, thak you.

A few of Trump's requirements are not controversial, like having medical schools require medical students to take a course on nutrition as part of their study, but any of them are.

Carrie Cochran-McClain, the chief policy officer at the National Rural Health Association, said: "I've been working in government and health policy for 20-plus years, and I can't recall another scenario where it was quite this direct in terms of, 'If you work on these policy changes at the state level, we will give you funding.'" She was careful not to call it blackmail for fear of offending Trump. But she knows if it looks like a duck and walks like a duck and quacks like a duck it is probably not a mongoose.

The formula for doling out money is complicated, but it explicitly takes into account whether states have certain policies that Trump likes in place. They get full credit if the laws he wants are already on the books and partial credit if they say they will implement them shortly. However, the government is reserving the right to claw back funds granted if those changes aren't made by the end of 2027 or, in some cases, 2028.

Some blue states find the new requirements so repellent that they have flatly refused the federal money. But even red states that want to comply are having problems. The grant window is open now and health officials have to describe now what their state will do to implement Trump's policies. But state legislatures in many states are not in session now (and some state legislatures meet only every other year), so the health officials don't know what they can safely put in their applications. If they don't offer Trump enough red meat, they won't get the grant. But if they offer too much, when the legislature comes back into session, the legislators may balk at passing the laws Trump wants, and the money will later be clawed back.

When Secretary of HHS Robert Kennedy Jr. attended the Western Governors Association conference in November, the governors grilled him about the program and how the money will be distributed. He seemed not to understand the program and claimed ignorance of it and said he wasn't involved in it and couldn't change the formula. This is almost certainly a lie. The formula is not embedded in any law. It is just an HHS policy, which he can order HHS officials to change if he wants to. But since whole issue doesn't involve vaccines or dead bears or brain worms, he is not interested. (V)

Redistricting in Indiana Revs Up

Donald Trump very much wants the House to stay Republican in 2026 (lest it impeach him again). Consequently, he is bugging every state with a Republican trifecta and some Democratic representatives to rejigger the districts to flip the Democratic seats. Indiana was somewhat hesitant to do that, but he kept up the pressure and now the Indiana House has passed a bill that would probably change the 2D, 7R delegation to 0D, 9R if passed.

However, the state Senate is not on board yet. One of Trump's allies, Turning Point USA, is also turning up the heat on state senators who don't like the idea of midterm redistricting. It has informed the senators that it would spend upwards of $100 million to defeat all the state senators who won't play ball. The Club for Growth also issued a final warning to the senators that anyone voting against the new map would be defeated in a primary next year. The state Senate will soon vote on the map. It remains to be seen if the state senators who opposed this move will be able to resist the pressure.

If Indiana flips the Democratic seats, it will join Missouri, North Carolina, Ohio, and Texas, which have also redrawn maps to favor the Republicans. Florida is working on flipping as many as four or five seats.

The only blue state to have done this so far is California, although Virginia and Illinois are likely to do so early next year. The courts gave the Democrats a break in Utah, which will likely flip one red seat blue.

A big unknown is when the Supreme Court will kill off what is left of the Voting Rights Act. This will set off a feeding frenzy in the South eliminate all minority-majority districts. Most states there have one or two and they are probably toast if the Court acts fast enough. If it acts after the filing deadlines it will be too late. It should be noted that the courts hate to change election rules close to an election, but there is no rule about changing the rules close to a filing deadline.

It is conceivable some of these maps could backfire if there is a blue tsunami. All these states have Democrats, and they have to be put somewhere. A state legislature that drew a map with a number of R+5 districts, in order to maximize the number of districts the Republicans were hoping to win, might not like the results if the current generic House poll of D+7 is correct and holds until Election Day. Then many of the R+5 districts might turn blue. Also, widespread gerrymandering is something the voters don't like and it is easy for Democrats to pin it on Trump. (V)

Three Cheers for Liver Disease

On Friday, Secretary of HHS Robert Kennedy Jr.'s hand-picked panel of vaccine skeptics came through for him. It voted to get rid of the recommendation for all newborns to get the hepatitis B vaccine. This decision overturns decades of practice where all babies got the shot, which reduced liver disease enormously and saved thousands of lives. For mothers who have tested positive, the baby can get the vaccine. The vote was 8-3, with the minority arguing that the data show no reason to change the policy, which has been in place since 1991. The vaccination worked extremely well in preventing liver disease, with few side effects. Hep B infections dropped from 9.6 per 100,000 children before 1991 to 1.0 per 100,000 now. But when you are dealing with anti-vaxxers, data are not relevant. In the Internet we trust.

The decision does not forbid parents from having their babies vaccinated by their doctor, but health insurance will probably not cover the vaccination anymore now that it is not recommended. This decision is part of Kennedy's MASA plan—Make America Sick Again.

Public health experts decried the decision, as did the American Medical Association. The AMA's Sandra Adamson Fryhofer called the decision "reckless" and said it "undermines decades of public confidence in a proven, lifesaving vaccine." But what do doctors know about health? They are too busy vaccinating babies to keep up with the latest conspiracy theories on the Internet. Maybe they will have more time now.

Donald Trump cheered on the decision. On his extremely sick social network, he wrote that the panel "made a very good decision to END their Hepatitis B Vaccine Recommendation for babies, the vast majority of whom are at NO RISK of Hepatitis B." No doubt the anti-vaxxers in his base are applauding his deep and abiding concern about public health. Trump also encouraged Kennedy to look at what other countries recommend. Some countries do not have as aggressive a vaccination schedule as the U.S. does, and he is probably thinking of those.

But there is more. The Centers for Disease Control just updated its webpage on autism to include the statement: "The claim 'vaccines do not cause autism' is not an evidence-based claim because studies have not ruled out the possibility that infant vaccines cause autism." This is an out-and-out lie. There have been dozens of studies that have shown no connection between vaccines and autism. The only "support" for the claim that vaccines cause autism was a single paper by then-Dr. Andrew Wakefield in The Lancet in 1998, falsely linking the MMR vaccine to autism. Subsequent investigation showed that Wakefield had committed fraud and stood to earn over $40 million per year selling test kits. The journal retracted the paper and Wakefield's medical license was revoked. Entire books have been written about Wakefield's fraud. (V)

Nov. 3, 2026 Will be Independents Day

Although Charlie Cook has turned over his newsletter to Amy Walter, he still writes regular columns for it. The most recent one is about the midterms. In it he notes that midterms are almost always a referendum on the president and his party. Next year, MAGA could be disillusioned with Donald Trump's failure to lower prices as he promised. America Firsters could be upset with his military involvement with Venezuela, despite promising to stay out of foreign wars. QAnoners could be unhappy with his refusal to come clean about Jeffrey Epstein. They might express their displeasure by not voting next year.

But all of these pale in comparison to what is going on with independents, who make up about a third of the electorate. Independents are clustered in swing states and swing districts. That's why those states and districts swing. In 2024, the independents were angry with the Biden-Harris administration for not keeping prices down. They voted for change, and Trump was the change candidate.

Next year, Trump will be the "more-of-the-same" candidate. In a Gallup poll released last week, Trump's approval among independents sunk to a dismal 25%, with 68% of independents disapproving of his record. These voters did not sign up for saber rattling in South America, killing many government programs that help people, bulldozing a third of the White House, dissuading the best STEM minds in the world from doing graduate work at M.I.T. or Stanford, and undermining vaccines. They just wanted the cheaper eggs Trump promised.

Despite all the gerrymandering in progress, some of which will backfire if there is a big blue wave, Cook believes that if the Republicans can keep their net losses under 15 seats, they will be lucky. He thinks their worst-case losses could be in the 20-25 seat range. He also thinks that if Trump gets even less popular going forward—and history shows that presidents rarely get more popular in their 6th year—his problem with independents (and, thus, swing states and districts) is only going to get worse next year. (V)

Every Election Is Now a Change Election

Since 2000, in every election save two, either one chamber of Congress or the White House changed parties. People want change. No matter who is in charge, they don't like it. Here are the "change" elections since 1900, when at least one of the three power centers changed parties. The orange elections are the ones when one of the three flipped.

As you can see, since 2000, in 11 of the 13 federal elections, at least one chamber or the White House changed hands, including the most recent six times. This is not a good omen for House Republicans. Actually, it is even worse than the graphic shows, since between the 2000 and 2002 elections, the Senate flipped several times as members jumped ship.

Since 2016, in every presidential election, the incumbent party lost the White House. In the past seven presidential elections, voters wanted the other party in the White House five times. Also in that period, the Senate flipped five times and the House flipped four times. The only elections since 2000 when nothing changed were 2004 (after 9/11) and Barack Obama's second election. Republicans who see this are probably fairly nervous, and if they are not, they are not paying attention. And these data have nothing to do with the fact that there is a historically unpopular president in the White House right now.

The last four presidents all had the trifecta when they first took office: Obama (2008), Trump (2016), Biden (2020), and Trump (2024). They all tried to exploit it quickly, knowing it wouldn't last. Obama pushed through the ACA. Trump v1.0 got a big tax cut through. Biden signed the Inflation Reduction Act (which wasn't about inflation at all), and Trump got his BBB in v2.0.

A lot of this is because what Tip O'Neill said ("all elections are local") is no longer true. In fact, all elections are national now. Candidates for dogcatcher have to answer reporters' questions like: "Are you going to focus on catching white dogs or brown dogs?" Coupled with an extremely even split between Republicans and Democrats, it doesn't take much to upset the applecart. (V)

Judge to Unseal Epstein Grand Jury Transcripts

On Friday, U.S. District Judge Rodney Smith, a Donald Trump appointee, ordered that the grand jury transcripts relating to Jeffrey Epstein's conviction be unsealed and made public. He also ordered that protective orders that would have prevented the government from releasing them be lifted.

It is unusual that grand jury transcripts be made public, but in this case, pursuant to the Epstein Files Transparency Act, the judge made an exception. Whether anything not already known is in there remains to be seen. In 2008, Epstein pleaded guilty to procuring underage girls for prostitution. There was no trial, so the grand jury material was never seen by anyone except possibly the judge. There could be surprises in there, but they will relate to Epstein's activities prior to 2008.

This decision is important because it is likely that judges will release what they have, without first removing anything potentially damaging to important people. With the DoJ, there is a very real possibility that documents that negatively depict Donald Trump or any of his cronies will be destroyed, rather than released. Other federal judges are also sitting on information that could be released in the near future. (V)

Fetterman 2028?

No, we don't mean will Sen. John Fetterman (D?-PA) run for president. He almost certainly will not get anywhere if he tries because Democrats hate him. The issue is whether he will be the Democratic nominee for the Senate if he runs for reelection in 2028. He doesn't seem to like his job, so he might not run. But if he does, he will almost certainly get a progressive challenger in the primary. When a reporter asked him about 2028, he replied: "It's 2025."

When Fetterman was first elected, a lot of Democrats saw him as their new champion and a possible future president. He had a working-class background and related well to ordinary people. They were expecting a new Bernie Sanders, but much taller. Since then, it has all been downhill. Many Democrats now see him as a DINO, barely better then former senator Joe Manchin and just as conservative. Instead of fighting for the common man every day, he seems to have little interest in politics and doesn't fight for anything. He often votes with the Republicans.

The Working Families Party of Pennsylvania has already said it will not support him in 2028 and is looking for a challenger. Several current and former House members are considering a challenge, but most want to first know if Fetterman will even be running. Some of his former staff members don't think he will run for reelection because he doesn't like D.C. or the job. Still, while it is a bit early to be speculating about 2028, Fetterman will almost certainly have to fight for his job if he decides he wants to keep it. (V)

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