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On the Endangered List, Part I: The Voting Rights Act

The Supreme Court, over a decade ago, gutted a key provision of the Voting Rights Act (VRA), declaring that states with histories of discrimination no longer had to get federal pre-clearance before changing voting rules. The direct result of this was the passage of a slew of Voter ID laws, and other measures meant to make it harder to vote, especially for poor and minority voters.

Now, there has been another pretty big setback. Section 2 of the VRA, which was updated by Congress in 1982, affirms that citizens have the right to vote, and also the right to equal representation in government, and says that if those rights are infringed upon, a lawsuit can be brought against the city, county, state, etc. alleged to be responsible for the infringement. Critically, since that legislation became law, it has been understood that there are two entities with standing to sue under it: (1) the Department of Justice, and (2) the individuals who think their civil rights have been violated. Since 1982, 466 Section 2 cases have been brought, and only 18 of those were instigated by the DoJ.

In 2021, the Turtle Mountain Band of Chippewa Indians brought suit against state Secretary of State of North Dakota Michael Howe (R). Their argument was that the state's legislative maps were drawn in such a way as to dilute Native American representation in the legislature. The case bounced around the courts for 4 years, and yesterday, a three-judge panel on the U.S. Court of Appeals for the Eighth Circuit ruled against the Chippewa, 2-1. The Court did not concern itself with the merits of the case, however, and instead decided that the plaintiffs did not have standing to sue, as only the DoJ is allowed to bring such actions.

This finding, on the strength of votes from one Donald Trump appointee and one George W. Bush appointee (though with a dissent from a different Bush appointee), runs contrary to both the original intent of the law and to more than 40 years of precedent. Again, over 400 non-DoJ plaintiffs have filed Section 2 suits previously without issue.

At this point, the plaintiffs have a hard decision to make. If they accept the decision, then in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, only the DoJ will be able to bring voting rights lawsuits. And the current DoJ, including "Attorney General" Pam Bondi, has made clear that it has no interest (not that the DoJs of previous administrations were exactly lighting up the dockets, with an average of roughly one case every 2½ years). Alternatively, the Chippewa can appeal to the U.S. Supreme Court. And if the Supreme Court takes the case, well, there are two judges who have already signaled their support for yesterday's decision (Clarence Thomas and Neil Gorsuch), and another (John Roberts) who is rather well known for his apathy for the VRA. So, there's an excellent chance that an appeal ends with the limits on Section 2 suits being extended nationwide, as opposed to being limited to just the Eighth Circuit. It's definitely a Sophie's Choice for the Chippewa and their lawyers. (Z)

On the Endangered List, Part II: The Filibuster

Note, at the outset, that this item is extremely inside baseball. That is by design, as Republicans are hoping the abstruse nature of their maneuvering will allow them to get away with a transformative change to the filibuster, without suffering much (or maybe any) political blowback.

The proximate issue here is California emissions standards. The Clean Air Act sets various standards for pollution, including from vehicles. It also allows states to set even stricter standards, with EPA approval. In 2024, the Golden State applied for, and received, such approval for vehicles sold within the state. Undoubtedly, the Biden administration knew full well that it's not so easy to make cars to two or three or ten different sets of standards, and that automakers generally just adhere to the rules in whatever state has the strictest standards. Inasmuch as legislation along these lines would never get past the Senate, this was a backdoor way for a Democratic administration to implement a part of its environmental agenda.

On the whole, automakers aren't actually too upset about the California standards. Folks in the car manufacturing business can read the writing on the wall, and recognize that much more eco-friendly vehicles, particularly electric vehicles, are where things are headed. If they are going to have to invest in that R&D, and substantially reinvent their businesses, then it's actually pretty useful if the nation's most populous and wealthiest state mandates the purchase of eco-friendly and electric vehicles. That significantly reduces the risk of getting stuck with cutting-edge vehicles that nobody wants (see DeLorean, John).

The industry that is not excited is petroleum. After all, if people buy a gasoline-powered car, or an electric car, they are still buying a car, and so the auto industry is still moving product. However, in the former scenario, they are also buying gas, while in the latter, they are not. So, Big Oil is up in arms about the EPA waiver, and wants it to be reversed. The only entity that can do that is Congress, through legislation. Needless to say, a bill saying "those meanies in California can't insist on eco-friendly cars" would get through the House, but would not get past the filibuster in the Senate.

And that brings us to the inside baseball. Republicans in the Senate, who would like to grant Big Oil's wish, have been looking for a way to make that happen, and think they might have a winner. The Congressional Review Act (CRA) allows Congress, by a simple majority vote in both chambers, to cancel rules recently passed by federal agencies. Not only that but, as a "bonus," the legislation also says that once Congress has exercised this power, the agency in question can never adopt the same (or a similar) rule ever again.

There is one small fly in the ointment, however. An EPA waiver is not a "rule," as defined in the CRA. In case there was any doubt on that point, the Government Accountability Office published an advisory that a waiver and a rule are not the same thing. Senate Parliamentarian Elizabeth MacDonough issued a ruling with the same conclusion.

Senate Republicans' plan here, then, is to overrule the parliamentarian (and the GAO) and to create a carve-out that effectively says that ANY decision by a federal agency (rule, waiver, or otherwise) is subject to review under the CRA, and that such a review is not filibusterable in the Senate. This would not only allow Senate Republicans to kill California's EPA waiver, permanently, it would also give them enormous new powers over other aspects of executive branch governance. To take but one example, among many, if the members of Congress did not approve of a corporate merger that had been sanctioned by the Department of Justice, they could permanently kill that merger with a bare majority of the two chambers. Or, to take another example, if the FDA approved a new abortifacient drug, then a simple majority of the House and Senate could permanently revoke that approval.

This is not a done deal yet. Some of the filibuster-loving Senate Republicans, like Mitch McConnell (R-KY), appear to be on board with the plan. Others, like Susan Collins (R-ME), are noncommittal, presumably recognizing that one day, the shoe will be on the other foot, and also that if you poke too many holes in the filibuster, the whole house of cards is going to collapse. Presumably, we'll know soon what they decide. (Z)

No Impeachment v3.0, at Least for Now

For the last couple of weeks, Rep. Shri Thanedar (D-MI) has been on a one-man crusade to impeach Donald Trump. His explanation: "It's never the wrong time to stand up for our Constitution."

The rest of the House Democratic Caucus has been working overtime, using every trick in the book, to try to persuade Thanedar that now is not the time. First, the blue team wants the focus right now to be on the Republicans' budget bill, and the cuts to Medicaid, and an impeachment would create a distraction. Second, as you may have heard, the Democrats don't control the House or the Senate right now, so an impeachment vote would surely fail, while at the same time making the whole thing look like a cheap political trick.

And the truth is, it would be a cheap political trick. Thanedar got very interested in impeachment about 5 minutes after he learned he would face a primary challenge from state Representative Donavan McKinney. And House rules do allow for any member to make a motion privileged, forcing a vote within 2 days. This is one of Rep. Marjorie Taylor Greene's (R-GA) favorite little loopholes.

Thanedar moved forward with the various steps in the process, such that it appeared there would be a vote yesterday. However, at the last moment, he backed down, explaining: "After talking with many colleagues, I have decided not to force a vote on impeachment today. Instead, I will add to my articles of impeachment and continue to rally the support of both Democrats and Republicans to defend the Constitution with me." It's not clear what changed his mind—carrots, or sticks, or both. The most probable explanation is that many Democrats were planning to vote against the measure, which would have left Thanedar with egg on his face. It is true that many Democrats don't particularly want to cast a vote that protects Trump, but sometimes a politician has to make the best of a bad situation, and it's also true that a "nay" vote now would lay the groundwork for arguing, after a future "yea" vote, that members actually consider the merits of the case, and don't just vote reflexively for impeachment.

And make no mistake, impeachment v3.0 is a near certainty, at some point. The Democrats may want to wait until Trump's support further erodes and there may be a few GOP votes available (like a Justin Amash or a Liz Cheney), or until sometime much closer to the election, or maybe until they are in the majority, which they expect to be as of Jan. 3, 2027. In that case, they would actually be able to impeach Trump, as opposed to just being voted down by Republicans. And if they somehow retake the Senate, as well, then they could also get an actual hearing, even if a conviction is not gonna happen.

But you never know. If the Democrats control the Senate on Jan. 3, 2027 (unlikely, but possible), they could hold an extensive trial with many witnesses, including respected former judges appointed by Republican presidents. The goal would be to convince the public that Trump broke the law many times and abused his power repeatedly. If they were able to convince 70% of the voters that Trump was a criminal and should be convicted, the senators up in 2028 would be faced with a very difficult vote. (Z)

Muckraking Volume on Biden Will Hit the Shelves Next Week

CNN's Jake Tapper and Axios' Alex Thompson have a new book coming out, entitled Original Sin: President Biden's Decline, Its Cover-Up, and His Disastrous Choice to Run Again. As you can infer from the title, it's a compendium of material, from many Democratic sources (mostly anonymous), about the then-president's infirmities, especially during his last year in office.

There are certainly some eye-opening claims in the book, based on the parts that have already been released. The main revelation (although this was basically already known) is that access to Biden was tightly controlled in 2024, and that Cabinet secretaries rarely (or never) met with him. There's also a tidbit that, had Biden served a second term, he was going to start using a wheelchair. There's another tidbit that, at some point in 2024, Biden met longtime supporter/donor George Clooney at a fundraiser, and did not recognize him.

We felt we should mention this story, because it's getting a lot of coverage already, and will undoubtedly get more next week, when the book is actually released on Tuesday. That said, our instinctive response is that this really isn't all that important. Throughout the day yesterday, we pondered exactly why that was our response, and we ultimately settled on two answers.

The first of those answers is that we just aren't sure how reliable all these witnesses are. We do not propose that the people who were interviewed are lying (although they certainly might be), or that they have an ax to grind (although they certainly could). What we mean is that while some huge percentage of people seem to view themselves as experts on cognitive decline, few of them actually are. In particular, a person suffering from dementia, or other conditions along those lines, does not decline in a linear pattern. They have their good days and their bad days. They may also be better during some parts of the day than others (e.g., sundowning). It's definitely possible that Biden really did fall apart, mentally. But it's also possible that the people around him misread the signs, or made mountains out of molehills, and then built a protective wall around him for political reasons, or out of their love for the man.

The second, and bigger, reason that we don't think this is all that important is that we checked Wikipedia, and it tells us that... Biden isn't president anymore. If he were still in office, then he would absolutely have a responsibility to address these reports, and to provide some accounting for himself and his mental well-being. But even if some harm was done, or some undue risk was assumed—and there is only speculation that this might be the case—those things are now in the past, and the people who were responsible are no longer calling the shots at the White House. As such, the Tapper/Thompson book feels like a bit of a cheap shot.

The counterargument is that the alleged cover-up didn't just take place in the White House, and extended to important people who are still in power, like House Minority Leader Hakeem Jeffries (D-NY). That was certainly the tack taken by Wolf Blitzer and Pamela Brown yesterday, as they demanded that Jeffries explain to them why anyone should trust Democrats ever again. Here, in fact, is Blitzer's exact question: "Why should voters trust Democrats when it's clear so many in your party went to great lengths to keep Biden's condition hidden, hidden from the public?"

We really do not want to be an apologist for anyone, but—consistent with what we've already written here—we think Blitzer's question is a pile of malarkey. Remember "What did Nixon know, and when did he know it?" Well, it's not clear what Jeffries (or Chuck Schumer, or any of the other non-White House pooh-bahs) knew, nor is it clear when they knew it. They could well have seen only the best of Biden, or they could have seen the bad parts, but been in denial. And even if they had strong beliefs about Biden's state of mind, what could they plausibly do about it? It wasn't until he blew the debate performance that there was an opportunity to push him out. And you know what happened? With Nancy Pelosi leading the charge, they DID push Biden out.

At the risk of indulging in whataboutism, we'll also add one other observation: Has Wolf Blitzer taken any notice of what the Republicans have been doing for the last few years? There's plenty of reason to believe that they are also covering for someone who has lost his fastball. And, at the same time, they are most definitely covering for someone who tried to foment an insurrection, and who is now running roughshod over the Constitution. From where we sit, that seems just a little worse than prominent Democrats exercising some caution, and choosing not to publicly tear down and humiliate the leader of their Party.

So again, we just are not impressed with any of this reporting, either the book or the response (and that's before we get into the book jacket's laughable claim that Tapper is "one of the most respected journalists in America"). Also, "Original Sin"? Seriously? Is that some sort of old-age joke, implying that Biden was around during the time of Adam and Eve? That his memory problems are due to eating too many apples? If the goal is NOT to be accused of muckraking, then perhaps one should not go with the most over-the-top, crazypants title possible. Even Upton Sinclair would be embarrassed by that one. Still, despite our feelings on the matter, we pass the story along, because we realize readers may see things differently than we do. (Z)

Trump Flexes His Muscles, for Pete's Sake

Most readers, even if they are not sports fans, are probably familiar with the broad outlines of Shoeless Joe Jackson's story (especially if they've seen Field of Dreams). In short, he was, on the merits, a nearly surefire Hall of Fame baseball player (62.6 bWAR, despite only playing to age 32, for those readers for whom that means something). However, he was also a member of the infamous Black Sox, who threw the 1919 World Series. Though there is spirited debate, the general consensus is that Jackson: (1) knew about the fix, but (2) was not an active participant, and at least TRIED to blow the whistle. Still, the scandal nearly destroyed Major League Baseball, and anyone even remotely connected to the scheme ended up banned for life by Commissioner Kenesaw Mountain Landis.

In the past 105 years and counting, there have been numerous efforts to clear Jackson's name, and to get his eligibility for the Hall of Fame restored. In particular, every time there is a new Commissioner of Baseball, a renewed petition is made, in the hopes that this commissioner is the one who will take mercy. And so, when Rob Manfred got the job a decade ago, he was promptly asked to consider reinstating Jackson and all other banned-for-life figures. And his answer, back in 2015, was an unequivocal "no." He explained: "[I]t is not possible now, over 95 years since those events took place and were considered by Commissioner Landis, to be certain enough of the truth to overrule Commissioner Landis' determinations."

This week, however, Manfred radically changed his tune, announcing that ALL deceased individuals on the permanently banned list (mostly players, but a few executives, too) are now un-banned. He explained:

Obviously, a person no longer with us cannot represent a threat to the integrity of the game. Moreover, it is hard to conceive of a penalty that has more deterrent effect than one that lasts a lifetime with no reprieve. Therefore, I have concluded that permanent ineligibility ends upon the passing of the disciplined individual...

That's a rather different take from the one Manfred offered up 10 years ago.

So, why the change? Well, one possibility is that with age comes wisdom, and over the years, Manfred has seen things in a new light. Certainly, people are entitled to change their minds. However, as simple as it may be, this is not the Occam's Razor explanation. No, the much simpler explanation is this: Manfred's decision, in addition to removing Jackson from the permanently banned list, also removes Pete Rose. And in the last month or so, Donald Trump has taken up Rose's cause, promising him a full pardon for the crimes he committed, and demanding that Rose be admitted into the Hall of Fame.

It is not the slightest bit surprising that Trump feels an affinity for Rose. To wit:

They're two peas in a pod. Well, maybe, two thieves in a pod. (Although one difference between them is that Rose was brought down by lawyer John Dowd, while Trump employed Dowd as his lead counselor during the Russia investigation.)

Here, by the way, is Trump's announcement that he planned to pardon Rose:

Major League Baseball didn't have the courage or decency to put the late, great, Pete Rose, also known as "Charlie Hustle," into the Baseball Hall of fame. Now he is dead, will never experience the thrill of being selected, even though he was a FAR BETTER PLAYER than most of those who made it, and can only be named posthumously. WHAT A SHAME! Anyway, over the next few weeks I will be signing a complete PARDON of Pete Rose, who shouldn't have been gambling on baseball, but only bet on HIS TEAM WINNING. He never betted against himself, or the other team. He had the most hits, by far, in baseball history, and won more games than anyone in sports history. Baseball, which is dying all over the place, should get off its fat, lazy ass, and elect Pete Rose, even though far too late, into the Baseball Hall of Fame!

We are compelled to ask the same question we asked just yesterday: Is Trump stupid/ignorant, or is he just dishonest? During the time he placed the bets, Rose was player-manager of the Reds. One thing that might affect his strategy is whether he placed a bet to win or lose. But another thing that might affect his strategy is whether he placed a bet at all. In games where Rose had money riding on the outcome, he might, say, overuse star pitcher José Rijo. In games where there was no bet, he might not use Rijo at all, preferring to keep him fresh for the next "bet" game. And these are not hypotheticals; the Dowd report said that Rose did both of these things with Rijo. When we asked the question of Trump yesterday, we said it was 50/50 between stupid/ignorant and dishonest. The fact that he apparently thinks the past tense of "bet" is "betted" does give us at least a little bit of a leaning today.

Anyhow, it is not surprising that Manfred folded like a cheap suit. Part of the dynamic here is that the Commissioner is also MAGA, albeit not outspokenly so, and thus is willing to do Trump's bidding. A much, much bigger part of the dynamic, however, is this: Baseball's business model relies on the antitrust exemption it was granted over a century ago, which allows it to control the minor leagues, to dictate the terms by which teams can negotiate TV contracts, and to discriminate against potential owners it does not like. The sport also relies on foreign players, most of them brown, and most of them from sh**hole Latin American countries, particularly the Dominican Republic and Venezuela. If MLB were to end up on Trump's (or Steven Miller's) bad side, it could be disastrous.

And that brings us to the lesson this story suggests to us. Trump is clearly willing to muck around in just about anything, whether it's an appropriate (and legal) use of his powers, or not. The delineating factor is not how consequential his targets are (or aren't), it's whether or not he has leverage over them. That would certainly explain why he goes after, for example, universities that have federal research grants, but leaves, say, the ACLU unscathed (so far).

We also suspect there's another lesson on the horizon. Manfred can decide who is, and who is not, on the permanently banned list. However, he does not control entry into the Hall of Fame, which is an independent entity (although the Commissioner undoubtedly has SOME soft power). If normal order is followed, then Rose wouldn't even be considered for inclusion until 2027, and he probably wouldn't make the cut even then. However, Trump is not likely to be satisfied until Rose actually has a plaque hanging in the Hall. So, don't be too surprised to see some arm-twisting that gets Rose admitted, very possibly on a much faster timeline. In that case, Manfred will have learned what so many others before him have: Give Trump an inch, and he'll demand a mile. (Z)


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