It is often observed among scholars of democracy that an essential ingredient for the success of democracy is for political opponents to view each other, not as implacable enemies to be crushed, but instead as fellow citizens who have good-faith disagreements about what policies government should adopt. There needs to be a sense of a shared enterprise–we are all in this together, undertaking our mutual effort at collective self-government.

There are different ways to express this essential idea. Richard Hofstadter made it a core theme of his important book The Idea of a Party System, where he traces the development of the concept of a “legitimate opposition” in an ongoing electoral competition for temporary control of government power. More poetically, Lincoln in his first inaugural pleaded: “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection.” More recently, Steven Levisky and Daniel Ziblatt invoked the same principle, as have Lee Drutman and Ezra Klein, among others.

That’s why it was so jarring (at least for me), even after all the increased vitriol of contemporary partisan politics, to hear President Trump at the memorial service for Charlie Kirk snarl (and I believe that’s the correct verb for it): “I hate my opponent, and I don’t want the best for them. I’m sorry. I am sorry, Erika. … But I can’t stand my opponent.” (The quoted words come at about one minute into the video clip; you can judge for yourself President Trump’s tone of voice.)

Democracy does not require the kind of supererogatory forgiveness that Erika Kirk bestowed upon her husband’s assassin, remarkable, moving, and exemplary as it was. But democracy does require that we all–including, and perhaps especially, our elected leaders–treat political opponents as fellow citizens, equally worthy to participate in our shared self-government. The kind of hatred that President Trump expressed is, I fear, fundamentally inconsistent with that elementary level of civic fellowship that is necessary to sustain democracy.

Votebeat reports, focusing on the pending case in the Pennsylvania Supreme Court, but also noting the recent Third Circuit decision: “The Republican National Committee is asking the full bench of 3rd Circuit judges to rehear the case. … And if the state Supreme Court rules for the ACLU, Republicans could in theory appeal that to the U.S. Supreme Court, too, if they believe the state court overstepped.”

The article includes this ELB-related analysis:

“Rick Hasen, a professor at UCLA Law School who tracks election litigation, says the two-year federal election cycle of 2023-24 saw more election lawsuits than any other period since the beginning of his database, in 1996.

“’Political operatives recognized that in very close elections, the rules of the game matter a lot,’ he said.

“Hasen said while it’s rare that litigating over technical issues in election law can change the outcome of a race, it’s not impossible.

“For example, in 2008, Al Franken, a Democrat, initially lost a bid for a Minnesota U.S. Senate seat to incumbent Republican Norm Coleman by a few hundred votes. But the close margin triggered a legally required recount, during which attorneys for Franken argued that some absentee ballots had been improperly rejected and should be counted. Franken ultimately won.

“Hasen said there have always been cases like that — post-election disputes in close races over which ballots to count — but part of what sets the current moment apart is that we are now also seeing pre-election disputes over what ballots should be counted.

“Derek Muller, an election law professor at Notre Dame Law School, has pointed to another contributing factor: a 2014 federal campaign finance change allowed fundraising specifically for election litigation. Hasen said the change created an incentive to pursue more cases, ‘because otherwise you’re kind of leaving money on the table.’

Even against that backdrop, Hasen said the amount of litigation over Pennsylvania’s mail ballot dating requirement stands out. Factors that could be fueling it, he said, include the commonwealth’s status as a swing state, a perception that less restrictive mail ballot rules help Democrats and hurt Republicans, and a general sense that it’s unfair to reject a ballot that election officials know was received on time and would otherwise be counted.

‘If Pennsylvania were not so polarized, or if one party controlled the legislature and the governor’s office, then you could well see a legislative fix for this problem,’ he said.”

POLITICO reports that “Charles Munger Jr. has spent more than $30 million to defeat a redistricting campaign. … He dedicated about $14 million to sell Californians on ballot measures to create an independent redistricting commission, which he argued would permanently take the partisan sting out of the state’s politics. … But the threat of partisan gerrymandering is back, and so is Munger.”

Michelle Cottle’s N.Y. Times Opinion essay on the Republican representatives from California who may end up as “collateral damage” from the “redistricting war” that Trump has unleashed.

N.Y. Times reports.

“The chaos is partly from an act of fate — the death of Mr. Turner on March 5 — but mostly from acts of humans. A special election to serve out the remainder of Mr. Turner’s term is set for November, eight months after his death, and even then, it is expected to end up in a runoff that will come in mid- to late January.

“The bang-your-head-against-the-wall part for voters, candidates and election officials is that Mr. Turner’s replacement will serve the constituents of the old 18th district. Right after voters select that representative, they will have to return to the polls in March for the 2026 midterm election primary — using the completely redrawn congressional map.”

Last week at NYU’s Democracy Project‘s series of 100 essays in 100 days, we featured two essays, among others, on the role of Congress in this moment.

One, from congressional expert Molly Reynolds, is titled When It Comes to its Spending Power, Congress Must Save Itself. The second, from Andy McCarthy, who is former federal prosecutor, bestselling author, and National Review contributing editor, is titled Bring Back Congress.

Here’s an excerpt first from Molly’s piece:

The threat to Congress comes not only from the executive branch directly. While, for a range of historical and institutional reasons, adjudicating spending questions is not entirely comfortable terrain for judges, the federal courts have become the primary venue in which the battle over the executive’s conduct is being fought. The decisions so far have been a mixed bag for Congress and, because they’ve mostly come from district and circuit courts, many are still winding their way through the legal process. But even if the judiciary ends up rendering decisions in favor of congressional choices—an outcome, to be clear, that’s far from certain—relying on the courts to backstop congressional power can be a dangerous business. The harm that can be done while litigation unfolds can be real, and the time to resolution can be long…

There are steps Congress can take to address this worsening imbalance of power between the branches. Moving language, for example, that has historically appeared in documents accompanying spending bills into the text of legislation might help bolster pro-Congress arguments in future litigation….

Writing new laws that seek to prevent the executive branch from overreach—while a helpful start—only goes so far when the underlying problem is that the very same executive branch is disregarding the laws Congress has already written. Any meaningful, long-term solution that restores congressional power will require members of Congress to decide for themselves to withhold support for something the executive branch cares about. In a period of unified party control and strong partisan loyalty, it is somewhat difficult to imagine the congressional majority stepping up to the plate.

Here is an excerpt from Andy’s piece:

Just as we sometimes unthinkingly laud democracy when we mean republic, so too are we apt to describe the branches of our federal government as co-equal.

No. They are peers, to be sure. Each is bound by the rudimentary principle that their powers are separate: these discrete authorities may and often should be exercised in unison (e.g., the president and Congress acting together against a foreign threat to our defense), but never by the same set of hands. The separate branches, however, are not equals.

Congress is the Article I power. As the breadth of its enumerated powers elucidates, it is primus inter pares. In a republic framed to achieve representative governance, it is the representative. Indeed, in the Constitution’s original blueprint, the House was the only component of the three branches that would be directly elected by the people – and only by the people in the jurisdiction to be represented by a congressman. (It would be a man back then, but a self-correcting republic overcomes all manner of waywardness.)

It was Congress that embodied the republic’s democratic aspirations. Our aspirations haven’t changed, but without a functioning legislative branch, they are certain to be frustrated. Our governing framework cannot be sustained in such circumstances.

We are a deeply divided country. Yet, that is our default condition historically. We’ve thrived, not self-immolated, because constitutional government through deliberative legislation by our representatives works. It provides stability even when our differences are immense. Without it, our divisions will remain but our stability will continue to erode as each presidential election portends new, contradictory extremes of government by executive order.

At the Volokh Conspiracy, Ilya Somin has a piece that provides a policy critique of this decision from his Cato colleague David Bier and then a discussion of the legal issues. Here’s some of the legal discussion:

As David Bier notes, the new $100,000 fee is likely illegal, because the statutes authorizing H-1B fees only allow for fees to recoup administrative costs and some other types expenses. They certainly don’t authorize anything remotely resembling a $100,000 fee.

Trump is trying to get around these constraints by relying on  8 U.S.C. Section 1182(f), gives the president the authority to “bar the entry of any aliens or of any class of aliens into the United States” whose admission he finds “would be detrimental to the interests of the United States.” …

[I]t is far from clear that Section 1182(f) and Trump v. Hawaii give the president a blank check to exclude any potential immigrants for any reasons he wants, or to impose any fees he wants. In 2020, as David Bier also notes, Trump tried to impose a similar ban on new H-1B visas, but a federal district court ruled against the ban. As the court pointed out, ” there must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.”

The Supreme Court has repeatedly indicated that immigration is an area of legislative power. If so, there must be at least some constraint on how far it can be delegated to the executive.

Over at Divided Argument, Sam Bray has posted this abstract of an essay he has just released. I have wondered about some of these questions, and Sam has been influential with the Court, as in the universal injunction case:

When a federal officer challenges her removal by the president, what forms of interim relief and what final remedies are available? This Article considers those questions. It shows that the appropriate remedy for a prevailing officer will typically be a declaratory one, either a declaratory judgment or quo warranto. The interim relief question is harder. The suggestion here is that if an officer sues immediately to challenge her removal, and remains the de facto officer, there should be a presumption that the district court should ensure that she remains in possession of the office during the pendency of the litigation. But if the officer fails to sue immediately, and is no longer the de facto officer, the presumption should be against any interim relief. This suggestion is subject to some qualifications, but it would prevent “flipping” back and forth during the litigation with respect to who occupies the office and exercises its powers. These presumptions are supported by historical practice with respect to preliminary injunctions and quo warranto, by equitable considerations such as laches, and by normative concerns that are especially strong in the officer-removal context.

POLITICO reports. “Democrats trying to counter President Donald Trump’s red-state gerrymander are facing a roadblock. Fifteen roadblocks, actually.

“That’s how many Democratic-led states have a political trifecta — the same setup that helped Texas Republicans push through new maps last month.

“But of those 15, only California has made a serious effort to respond in kind — and even that initiative may fail at the ballot box. Leaders in 14 other states with a Democratic governor and state legislature find themselves unable to move forward, hampered by reasons ranging from constitutional limitations, legal deadlines and maps that can’t be gerrymandered anymore. In perhaps an acknowledgment of these hurdles, Democrats have turned to the courts to try stopping Republican efforts.

“’It’s no doubt the case that it’s harder for Democrats to do this right now than Republicans,’ said All About Redistricting author and researcher Douglas Spencer, an expert in election law at the University of Colorado.”

Read on for more details.

Peter Baker in The NY Times details all the ways Trump’s attacks on dissent differs from his predecessors. A few paragraphs in this piece, all of which is well worth reading, struck me in particular:

“’Donald Trump is hardly the first president to crack down on the press and cause controversy by doing so,’ said Harold Holzer, author of ‘The Presidents vs. the Press,’ the definitive history on the subject. ‘But he is the first to do so in what is not a national emergency.’

…

“Mr. Trump has increasingly shown his willingness to invoke government reach to go after those who openly question or criticize him. When former Gov. Chris Christie of New Jersey, a Republican and estranged ally, said on television last month that Mr. Trump ‘doesn’t care’ about maintaining separation between his office and criminal investigations, the president proved the point by threatening a criminal investigation of Mr. Christie.

…

“On Tuesday, Mr. Trump erupted at Jonathan Karl of ABC News for asking about Ms. Bondi’s plan to target ‘hate speech.’ She would ‘probably go after people like you,’ he snapped, ‘because you treat me so unfairly.’ When Mr. Karl revisited the subject in the Oval Office on Friday, Mr. Trump berated him again. ‘You’re guilty, Jon,’ he said.”

With Charles Stewart, Seth Bluestein, and Karen Brinson Bell. You can watch it here.

N.Y. Times reports on Trump’s escalation of demands that federal prosecutors go after his enemies. This comes on the heels of Trump’s repeated assertions that broadcasters should lose their licenses for criticizing him.

Ruth Greenwood was the guest on the Touro Law Review podcast.

POLITICO essay worth reading. I’m not sure I’m convinced by its “glass half full” account on the current situation, but it’s definitely food for thought. In any event, it doesn’t change the need for actors within the system to do their part in preserving, rather than undermining, the capacity for collective self-government through free and fair elections.