Author: irkedmoderate

Donald Trump has been the former President for almost a month.

I’m not entirely sure what to do with this blog now.

There is no crisis to bemoan. There are no constitutional injuries to identify.

I guess I’ll just sit here in the silence. No more rage tweets. No more insurrection.

It’s just calm. I’ll enjoy that for now.

Also, a former President can be disqualified from holding future office. Dang! I almost enjoyed the quiet.

I’ve been told that many columnists pen an “end of the year review” summarizing the highlights (and lowlights) of the preceding year.

As the sole columnist, editor, and owner of this particular publication — IrkedModerate.com — I feel obligated to do the same.

On January 1, 2020 at 12:01 a.m., this decade seemed like a potential new beginning. A presidential election was looming. The horrors of the financial crisis seemed to be waning. But little did we know that the sinister forces of Mother Nature were plotting and stirring in a Wuhan wet market.

Many, if not most, would say that 2020 was an anathema. It was a year of social unrest, cynicism, disease, financial turmoil, and death. Those people would be right. The glass is half empty.

But in other ways, 2020 was a year of hope. In the darkness of the pandemic, heroes emerged. The first responders, frontline healthcare workers, and brilliant scientists demonstrated to us what selflessness looks like in the face of disaster. In less than one year, humanity did the impossible. We developed a vaccine to a novel virus that is over 90% effective. The glass is half full.

But, we also saw selfishness thrive. Selfish politicians and skeptical citizens placed their egos (and ignorance) above the recommendations of scientists. A selfish President (and his enablers) refused to concede defeat in an election, and instead sowed even greater unrest in our society.

In my opinion, a decade both begins and ends in the final year of each ten-year cycle. The 2010’s ended and the 2020’s began this year. In this way, 2020 may be viewed as a transition year to a new chapter, albeit weighted down by the hardships of the decade that preceded it.

Now that the transition year is coming to an end, we can focus on a new beginning. If we don’t blow it, 2021 may offer us something grand — a return to normalcy. We will have normal social lives. We will have normal working environments. We will have normal holidays with our abnormal relatives. We will have a normal President.

In our return to normalcy, however, we cannot forget the lessons that 2020 taught us. Democracy is only as strong as we the people demand it should be. We can conquer global challenges only when we work together and sacrifice just a little bit for the greater good.

May 2021 be a year filled with the promise of normalcy that we deserve.

“And will to the best of my Ability, preserve, protect and defend the Constitution of the United States…”

Our Constitution sets out three co-equal branches of government. The President and his enablers have called on the third branch of government, the judiciary, to evaluate their (baseless) claims of voter fraud.

The judiciary has, unequivocally, rejected those claims. But that isn’t enough for the Toddler-in-Chief. His Twitter temper tantrum isn’t over yet.

But here’s the problem. It’s not quaint anymore. It’s not simply annoying (and almost comical) anymore.

The more and more the President not only refuses to admit that he has lost, but affirmatively pleads that he won on Twitter and outside of the institutional protections built into the court system, the greater injury he is causing to this country.

The President of the United States is one step shy of calling for open rebellion because he lost an election. An uncomfortable number of his cultist supporters already are doing so. This is the behavior we expect from tinpot dictators, not the leader of the free world.

This behavior flagrantly violates the President’s oath of office. It demonstrates that he does not care about this country, his office, or the people he represents.

These are the moanings of a wounded narcissist unfit for office and undeserving of a second term in that office.

The people who continue to support this monster should take a good look in the mirror, and ask themselves whether the are actually defending democratic principles, or assisting the President with subverting them.

It’s worth noting it didn’t have to come to this. Republicans blew countless chances to reign in the Trump cult over the last four years. But now the chickens are coming home to roost.

The election is over. The failed presidency of this two-bit hustler and prolific grifter is almost over. But equally, the time for silence is over. Every, single elected official in this country should be rebuking President Trump in the strongest possible language.

More importantly, elected Republicans need to grow a pair and stand up to the lemmings following Dear Leader off the reality cliff, before they try to drag along the rest of the country for the ride.

They are threatening burning down the GOP. Let them. And perhaps, a phoenix with the principles the GOP used to stand for will rise from the ashes.

The Soon to be Former 45th President of the United States Undermining American Democracy

The ides of November have passed us by in a slow trickle. The nearly three weeks that have passed since Election Day feel more like three months, as President Trump refuses to concede that he lost his reelection bid to former Vice President Joe Biden.

In my estimation, the President did not lose because of “voter fraud,” but rather because Americans have grown weary of the President’s blasé protestations and machinations.

The President’s legal teams have lost, conclusively, in every court challenge they have brought seeking to overturn the results of the 2020 election.

The “witnesses” and “evidence” they have presented to those courts are not just flimsy, but bordering on fanciful and sanctionable. There is no credible evidence that systematic or widespread voter fraud occurred (though there may be isolated examples of irregularities that did not alter the outcome).

#TheKraken set to be unleashed on Georgia turned out to be nothing more than a baby octopus. I’m sure the federal court will make sashimi out of it in no time.

The President’s no-nothing brand of populism is well-suited for the occasion we find ourselves in now. Only the President “knows the real truth” and “everyone else is lying.”

The President’s most avid supporters need not review the 38 court filings, scrutinize the evidence, and read the judicial opinions lambasting the shysters who filed them. They need not discover that the President actually dropped most of his claims of voter fraud in the courts long ago.

They need only listen to “news networks” like OAN and consume the President’s Twitter feed — both of which are wretchedly poisonous to our civic society.

But, January 20th is just around the corner. Joe Biden will be sworn in as the 46th President of the United States. For someone who claims to honor the “will of the people,” he is sure having a difficult time understanding their resounding message: “You’re fired.”

As of 11:30am EST on November 7, 2020, the date of this post, the election is over.

The media has declared the Commonwealth of Pennsylvania in favor of Joe Biden, and projected that he will be our next President.

In the days and weeks to come, the outgoing President will surely continue to subvert democracy and claim that there is no winner. Or worse, he will declare that he is the true winner because of abjectly merit less claims of fraud. The media must resist the temptation to continue giving him a platform to do so.

To an extent, however, his supporters are correct in their assertion that we do not yet have a President Elect. The Electoral College doesn’t meet until December, which is when the only votes that actually matter in a presidential election will be cast.

But the President has a moral obligation not to wait until December to concede this election. The healing process must begin. And the President needs to stop stabbing the patient.

Presented with the opportunity to wait for all the votes to be counted, as have all incumbent presidents who came before him, the President instead chose to claim the election had been stolen from him before the result was declared. Why?

It was all part of the President’s contingency plan to undermine Americans’ confidence in our most cherished civic institution in the event his defeat looked imminent.

The President has been undermining confidence in absentee ballots for months. He knew that absentee ballots generally tend to be Democratic votes, as they have been for decades. It’s called “blue shift.”

At the same time, he encouraged his supporters to vote on Election Day and vote in person. He hoped it would be enough to counter the “blue shift.” In some states it was.

But he also had ulterior motives. If the mail-in ballots being counted started to shift the election towards Joe Biden in key battleground states, which is what is now happening, the President could claim that the ballots were fraudulent and illegitimate.

This was by design. This was his strategy all along. We know this because, at least as of this writing, he is encouraging counting mail-in ballots in Arizona (where his lead is currently increasing), but he is decrying counting mail-in ballots in Pennsylvania and Georgia (where his lead is shrinking).

Now, he’s moving on to part two. He’s running to court not necessarily to prove that he lost because of election law violations, but rather to create an air of legitimacy around his seemingly frivolous claims of fraud.

But in this particular scenario, the President likely can’t overturn the results in court barring some late revelation of objective evidence supporting his claims.

That’s why he is aggressively undermining the legitimacy of the election in the court of public opinion. He’s not trying to change the outcome, mind you, but rather to punish the majority of Americans who rejected him.

This is the beginning of his swan song — the final act in his four-year long desecration of the highest office of public trust in this nation.

The President’s supporters need to understand that he is not fighting to vindicate your votes or “save” our country. Trump has little respect for either the office he holds or the American people. If he did, he would not be taking actions that will leave America even more divided and fractured than it has been over these past years.

These are not the actions of a leader who is trying to “keep America great.” These are the actions of a failed autocrat trying to cling on to power.

It speaks volumes that even the President’s staunchest allies are not defending his conduct (yet). They are seemingly trading the next four years to preserve the next forty years. They are demonstrating what putting “America First” actually looks like.

It will be more interesting to see what they will do to oppose his efforts to retaliate against his political enemies and further divide our country during the last months of his presidency. When and if he does, shame on those who ever called him a patriot.

“Please choose the facts they want now!” From The Newsroom

Introduction

I’ve thought a lot about the nature of “truth” recently. This post is part one of a currently unknown number of articles on the topic.

Before you read on, here are some warnings. I don’t contend that I am the first person to have reached these conclusions or espouse these (or similar) views on “truth.” I suppose that all opinions are just half-baked regurgitations of what we’ve absorbed from people much smarter than ourselves.

In these articles, I will attempt to document my understanding of the topic, as shallow and misguided as that understanding may be, for the half-dozen or so people who accidentally stumble across this blog.

Also, this series of articles will be quite dense (and very “meta”). If you’re not into that sort of thing, stop reading.

Many philosophers would tell you that there was no such thing as “truth” to begin with. 

I don’t purport to be an expert on philosophy or epistemology. But I do hold myself out to be an expert on law and political science. I have obtained advanced degrees in both fields. (And if you don’t think that makes me an expert, that is indicative of a larger problem.)

This post is about “truth” in politics. Or perhaps more specifically, in the body politic — “a group of persons politically organized under a single governmental authority.”

When I say “truth,” I mean a verifiable or falsifiable state of objective “facts.” (Don’t argue with me about whether “facts” can ever be truly “objective.” If you don’t agree with the premise, stop reading.)

Every day, lawyers use their formal training to sort through “facts” in pursuit of “truth.” Until the “facts” are verified or falsified (i.e., proven, objectively, to be a correct or incorrect representation of the state of something), then we do not present something as the “truth.”

Sometimes, people acting in good faith cannot agree about whether a given state of “facts” has been conclusively verified or falsified because there is conflicting evidence about the state of that “fact.” Therefore, an honest disagreement may exist about the “truth.”

We ultimately choose to accept those “facts” that we believe, acting in good faith, have been sufficiently verified or falsified.

Lawyers then construct and present their “truth” as a “narrative.” We compile and editorialize the universe of “facts” we think are important and present them to the listener. We call attention to “facts” we do not think have been sufficiently verified or falsified based on the evidence. We argue that certain “facts” are more or less important than other “facts.”

At the end of the day, the law (usually) prevents lawyers and litigants from outright fabricating “facts” — that is, knowingly and falsely claiming that a “fact” has been verified or falsified when it has not been.

So, what about “truth” in the body politic?

We often hear cynical pundits say we are living in a “post-truth” world. I disagree. We are living in a “post-fact” world.

In this “post-fact” world, presenting a “narrative” based on what someone wants the “truth” to be is more important than the verified or falsified nature of the “facts” upon which that “truth” has been constructed.

Add to that miserable state of affairs the following aggravating factors. Agents of chaos purposefully inject our public spaces with deliberately incorrect “facts.” Candidates put their political interests and ego above the sanctity of civil debate. Pundits place their commercial interests above societal interests in agreeing about “truths” that should be indisputably based on the state of objective “facts.”

We now live in a time when people can be presented with unimpeachable evidence that a given “fact” is verified or falsified, and still refuse to acknowledge the state of that fact — whether through maliciousness, ignorance, or willful blindness to the evidence or lack thereof.

Or, as the case may be, because they have conditioned themselves into believing that only the persons they choose to associate with know the real “truth.”

What caused this to happen? Blame the internet. Blame the Russians. Blame the Chinese. Blame the Republicans. Blame the Democrats. Blame the politicians. Blame the “deep state.” Blame the Koch brothers. Blame George Soros.

But more aptly, blame ourselves. The sad “truth” is that it’s easier to let someone spoon-feed us the “narratives” that we already tend to believe are “true,” rather than independently scrutinizing the evidentiary basis for the “facts” upon which that supposed “truth” is based.

We must always approach “narratives” with a skeptical mind and invoke “Hitchens’ Razor” at every opportunity — “Extraordinary claims require extraordinary proof.”

Or, in our case, extraordinary “narratives” must be based on verified or falsified objective “facts.” (Hitchens’ Razor is definitely catchier.)

“Here we go again…”

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– Literally Everyone Who Recoiled at the “Birtherism” Lie Pushed Against President Obama By (Among Others) the Person Who is Now the President of the United States.

Let me preface this blog post by saying I’m not the biggest fan of Kamala Harris. Or for that matter, any type of fan at all.

I’m a liberal (in the classical sense). She’s too far-left for my taste, and I can’t say that I’m thrilled that Mr. Biden decided to name her as the next POTUS when Mr. Biden resigns in two years for “health reasons” Vice Presidential nominee.

But Ms. Harris was born in Oakland, California to immigrant parents. She is a natural-born citizen under the Fourteenth Amendment. Period. 

To argue otherwise is either willful ignorance or racist maliciousness.

You can attack her views. You can attack her voting record. You can attack her demeanor (though, I will not do so).

But you can’t attack her eligibility to run for office. If someone truly “believes in the Constitution,” a document that many Twitter scholars surely have not actually read and far fewer of them actually understand, then he or she must also “believe” in Article III.

The Supreme Court settled this question in 1898 in the Wong Kim Ark case. In other words, we don’t need to argue about what “natural-born citizen” means anymore. The Supreme Court already told us. That’s how the Constitution works.

As if that wasn’t enough, Congress, through a duly-enacted law signed by the President, also told us what a citizen is:

“The following shall be . . . citizens of the United States at birth: a person born in the United States, and subject to the jurisdiction thereof.” See 8 U.S.C. § 1401.

As a Harris campaign spokesman, Ian Sams, aptly told PolitiFact, “Kamala Harris was born in Oakland, California, which is, was, and presumably will be in the United States of America. End of story.”

For better or worse, California is (and presumably will be) in the United States. Ergo, Kamala Harris is a “natural born” United States citizen.

That the electors of President and Vice President shall be appointed in each State on the Tuesday next after the first Monday in the month of November of the year in which they are to be appointed…

– A law that was passed in 1845 (codified at 3 U.S.C. § 1).

An act of Congress set Election Day. Only another act of Congress can change Election Day.

That’s it. That’s the entire post.

I would like to take this opportunity to scream two constitutional truths into the void of the blogosphere.

First, the President does not have the authority to command a governor to reopen his or her state’s economy. In essence, the President would be demanding a governor to rescind his or her executive “stay-at-home” order. That would be impermissible under the anti-commandeering clause of the 10th Amendment.

The president may potentially have the power to withhold discretionary emergency relief funds from non-conforming states, or rescind his emergency declaration to deprive states of those funds. The scope and contours of that power, and whether that is a prudent idea in the first place, is a question for another blog entry.

EDIT: As of April 17, 2020, the President has determined that he will not attempt to force state governors to lift their respective stay-at-home orders.

It is worth noting that Congress has some power to coerce the states into implementing federal policies. For example, Congress could threaten to withhold highway dollars unless states set the minimum drinking age at 21. (They did, and the Supreme Court said: “Yeah, that’s cool.”)

Counter-example: Congress could not threaten to withhold all Medicaid funding unless a state agreed to accept the Obamacare Medicaid expansion. Refusing to accept the expansion would have an excessive impact on a state’s budget. Such a coercive measure exceeded Congress’s authority under the Spending Clause of the Constitution. (Federalism wins!)

Whether the anti-commandeering clause can be read to contain similar limits is an interesting question for another day.

Second, it has been suggested that the President can adjourn Congress for the purpose of pushing through recess appointments. (When the Senate is not convened, the President has the power to make temporary appointments to positions that would otherwise require the advice and consent of the Senate. The appointment needs to be confirmed once the Senate reconvenes.)

Article III, Section 3 of the Constitution grants the president the power to “on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.”

No president has exercised this power in the history of our Republic.

The moments we are living in right now are undoubtedly extraordinary. But, the President only has the power to adjourn both the Senate and the House if they disagree as to adjourning. Right now, they do not. In fact, the only way that the President would be able to step in would be if the Republican-controlled Senate to adjourn, while the Democratic-controlled House remained in session.

The President would cause a constitutional crisis if he attempts to adjourn the House and the Senate when they are both in session and no disagreement exists between them as to adjourning.

Theoretically, if the President could adjourn the House and the Senate for the purposes of appointing high-level positions within the executive branch, he could then refuse to reconvene the House and the Senate for an inordinate period of time because he doesn’t think the “time is proper” yet.

I’m not suggesting that the President would actually take (or be inclined to take) such a constitutionally-injurious action. And of course, the President would be forced to reconvene the House and the Senate eventually in order to pass spending bills to fully fund the government. At that point, his recess appointments would need to be confirmed.

I am suggesting, however, that the Senate would be derelict in its constitutional duty to preserve separation of powers if it decides to adjourn for the purposes of allowing the President to circumvent its power to confirm his appointments. The legislative branch cannot set a precedent by ceding such an incredible power to the executive branch.

The challenges posed by coronavirus are unquestionably unprecedented. But the purpose of our Constitution is to preserve the fundamental principles of our democracy, such as federalism and separation-of-powers, during the worst of times. Our leaders must use foresight and prudence. The decisions our leaders make now could have generational impacts. History is watching.