Kansas Attorney General Kris Kobach and attorneys general from Louisiana, Ohio, and West Virginia filed a lawsuit against the Biden administration in Louisiana District Court to stop the U.S. Census Bureau from counting illegal aliens for reapportionment purposes in 2030….
According to the lawsuit, the U.S. Census Bureau’s existing residence rule unlawfully requires counting illegal aliens and nonimmigrant aliens in the apportionment base used for assigning seats in the U.S. House of Representatives and the Electoral College….
“Biden issues preemptive pardons for Fauci, Milley, Jan. 6 Committee and others”
President Joe Biden on Monday issued preemptive pardons to a slew of high-profile targets of President-elect Donald Trump — a striking last-minute effort to shield them from prosecution just hours before Trump, who has promised to punish his perceived enemies, is sworn in.
Biden issued the pardons to former public health official Anthony Fauci and former chair of the Joint Chiefs of Staff Mark Milley. He also pardoned the members and staff of the House special committee that investigated the Jan. 6 insurrection as well as officers from Washington’s Metropolitan Police Department and the U.S. Capitol Police who testified before the committee. All of Monday’s pardon recipients have been verbally attacked by Trump, and many of his allies have called for them to face criminal charges. . . .
Several committee staffers told POLITICO that they were blindsided by Biden’s announcement and still weighing whether to accept — or could even be sure they were included in the clemency announcement. Biden’s statement included no list of names or language describing the scope of the pardons.
“Trump Barely Won the Popular Vote. Why Doesn’t It Feel That Way?”
In 2024, Donald Trump won the popular vote by 1.5 points. Trump and Democrats alike treated this result as an overwhelming repudiation of the left and a broad mandate for the MAGA movement. But by any historical measure, it was a squeaker….
In July of 2024, Tyler Cowen, the economist and cultural commentator, wrote a blog post that proved to be among the election’s most prescient. It was titled “The change in vibes — why did they happen?” Cowen’s argument was that mass culture was moving in a Trumpian direction. Among the tributaries flowing into the general shift: the Trumpist right’s deeper embrace of social media, the backlash to the “feminization” of society, exhaustion with the politics of wokeness, an era of negativity that Trump captured but Democrats resisted, a pervasive sense of disorder at the border and abroad and the breakup between Democrats and “Big Tech.”
I was skeptical of Cowen’s post when I first read it, as it described a shift much larger than anything I saw reflected in the polls. I may have been right about the polls. But Cowen was right about the culture.
Reading Cowen’s list with the benefit of hindsight, four factors converged to turn Trump’s narrow victory in votes into an overwhelming victory in vibes. The first is the very different relationship (most) Democrats and Republicans have to social media. To Democrats, mastering social media means having a good team of social media content producers; Kamala Harris’s capably snarky team was just hired more or less en masse by the D.N.C.
To the Trumpian right, mastering social media — and attention, generally — means being, yourself, a dominant and relentless presence on social media and YouTube and podcasts, as Trump and JD Vance and Elon Musk all are. It’s the politician-as-influencer, not the politician-as-press-shop. There are Democrats who do this too, like A.O.C., but they are rare.
Biden has no authentic relationship with social media, nor does Harris. They treat it cautiously, preferring to make fewer mistakes, even if that means commanding less attention. Since the election, I have heard no end of Democrats lament their “media problem,” and I’ve found the language telling. Democrats won voters who consume heavy amounts of political news, but they lost voters who don’t follow the news at all. What Democrats have is an attention problem, not a media problem, and it stems partly from the fact that they still treat attention as something the media controls rather than as something they have to fight for themselves.
“Trump Says He Will Sign Executive Order to Stall TikTok Ban”
President-elect Donald J. Trump said on Sunday that he would issue an executive order to stall a federal ban of TikTok, just hours after major app stores removed the popular social media site and it stopped operating for U.S. users.
“I’m asking companies not to let TikTok stay dark,” Mr. Trump said in a post on Truth Social. “I will issue an executive order on Monday to extend the period of time before the law’s prohibitions take effect, so that we can make a deal to protect our national security.”
The ban stems from a 2024 law that requires app stores and cloud computing providers to stop distributing or hosting TikTok unless it is sold by its Chinese parent company, ByteDance. Lawmakers passed the law over concerns that the Chinese government could use the app, which claims roughly 170 million United States users, to gather information about Americans or spread propaganda.
App stores and cloud computing providers that do not comply with the law face potentially significant financial penalties. Mr. Trump said in his post on Sunday that he would “confirm that there will be no liability for any company that helped keep TikTok from going dark before my order.”…
An executive order would mark a new phase in the fight over the future of the app, which has reshaped the social media landscape and popular culture, and created a living for millions of influencers and small businesses that rely on the platform.
In issuing an order, Mr. Trump would raise questions about the rule of law in the United States. His action would constitute an attempt to temporarily neuter a law that passed with broad bipartisan support in Congress and that the Supreme Court unanimously upheld last week.
It is unclear whether Mr. Trump’s efforts will be successful. His executive order could face a legal challenge, including over whether he has the power to stop enforcement of a federal law. Companies subject to the law may determine that the order does not provide enough assurance that they will not be punished for violations…
In his post on Sunday, Mr. Trump floated the idea that he “would like the United States to have a 50% ownership position in a joint venture,” without providing further details….
“For Those Deemed Trump’s Enemies, a Time of Anxiety and Fear”
As Donald J. Trump returns to office, the critics, prosecutors and perceived enemies who sought to hold him accountable and banish him from American political life are now facing, with considerable trepidation, a president who is assuming power having vowed to exact vengeance.
Mr. Trump has promised to investigate and punish adversaries, especially those involved in his four prosecutions and the congressional investigation of the Jan. 6, 2021, attack on the Capitol.
Those threats, along with his stated intention to grant clemency to at least some of those who carried out the Jan. 6 assault, have many in Washington and elsewhere on edge, fearing not just government action against them but that the telegraphing of his wishes has created an environment of unpredictable, free-range retribution by his supporters.
Michael Fanone, a former police officer who was among those attacked by the pro-Trump crowd on Jan. 6, 2021, has been an outspoken critic of Mr. Trump. He said he feared that the violence and threats that have already been directed at him and his family — including his mother — will only get worse after Mr. Trump returns to office….
Should We Be Saying “President Haley”?
Democracy: A Journal of Ideas published this piece that I wrote on the failure of the electoral system to produce an outcome corresponding to “the real preference of the Voters” (Madison’s term for when a third candidate is preferred by a majority of voters compared one-on-one against each of the top two candidates).
The piece emphasizes our nation’s inability to understand correctly Trump’s victory over Harris in November because Trump won the national popular vote, unlike in 2016. Trump’s second term certainly cannot be considered an Electoral College mistake, but as the piece explains “a difference in the outcomes of the Electoral College and the national popular vote is not the only way that the existing electoral system distorts the results.” Instead, partisan primaries block a candidate less popular within a party from demonstrating in November that she would be more popular among all the nation’s voters than either her own party’s nominee or the opposing major-party nominee. The piece contends that Nikki Haley is that kind of candidate (technically, a Condorcet Winner, which is the same as a Madisonian “real preference of the Voters”), but you don’t need to be convinced of that point to believe that the existing system is flawed insofar as it doesn’t let a candidate like Haley demonstrate whether or not in fact she would beat either major-party nominee one-on-one.
On the eve of Trump’s second inauguration, the media is replete with stories reflecting this pervasive misunderstanding of Trump’s popular vote victory over Harris. In The New York Times, for example, Peter Baker writes today: “Mr. Trump arrives at 1600 Pennsylvania Avenue not as a fluke Electoral College winner who fell short in the popular vote. He takes the oath on Monday with a burst of momentum propelled by a victory in the popular vote.” Baker’s point is that Trump’s popular vote victory has caused even his opponents to believe that the country is now “on Mr. Trump’s side.” Baker quotes Patrick Gaspard, president of the Center for American Progress (a progressive think tank): “‘The humbling reality of a popular vote victory for him requires a lot of self-reflection and inward looking.'” Indeed, there are at least two other pieces on the front page of the Times‘s website today attempting to grapple with the significance of Trump’s popular vote victory: one concerning how it deflated popular resistance to Trump, and the other (an opinion essay by Ezra Klein) on the magnification of Trump’s victory as a cultural force.
To understand Trump’s popular vote victory properly, I believe that it’s essential to imagine what it would be like if tomorrow Nikki Haley’s presidency were beginning rather than Trump’s second term. Some things I think would be the same, as they should be assuming that Nikki Haley also would have beaten Kamala Harris head-to-head in the national popular vote. For example, many commentators have observed the corporate abandoning of DEI programs in the wake of Trump’s victory, interpreting it as a backlash against excessive wokeness. I suspect that if a Haley presidency were commencing tomorrow, this curtailment of DEI excess would be essentially the same, as Haley’s campaign on this point would have been substantially similar to Trump’s (although more measured in tone).
In other respects, however, a Haley presidency would be very different from Trump’s second term. No Kash Patel. No threats of revenge. No risk of Orban-style authoritarianism.
The correct way to understand Trump’s popular vote victory is to understand that it represents a mandate to the extent, but only to the extent, that Nikki Haley would be pursuing the same agenda. It is not, however, a mandate for all that distinguishes Trump from Haley–especially his dictatorial aspirations.
“Minnesota Supreme Court voids House Jan. 28 special election, rules Gov. Walz called it too soon”
CBS News:
he Minnesota Supreme Court on Friday canceled the special election for a metro House race later this month, finding Gov. Tim Walz set the date before state law requires.
The election was scheduled for Jan. 28 for House… Continue reading
“Trump launches meme coin, apparently makes more than $25 billion overnight”
Axios:
President-elect Trump launched his own cryptocurrency overnight and swiftly appeared to make more than $25 billion on paper for himself and his companies.
Why it matters: The stunning launch of $TRUMP caught the entire industry off-guard, and speaks to both… Continue reading
“Is it finally time to end the ‘blessed’ super PAC?; Last year, Democrats funneled nearly all of their resources into one billion dollar entity. Why did they put all of their eggs in one basket?”
Newly-released OLC memo from 2020: “Transmission of Electoral-College Certificates by ‘Registered Mail'”
This memo from the Office of Legal Counsel was released January 17, 2024, but was written February 27, 2020 (i.e., late in the first Trump administration and well before Election Day). There is an editor’s note that the Electoral Count… Continue reading
Pennsylvania Supreme Court to (Finally) Decide Constitutionality of Rule Barring the Counting of Undated or Misdated but Timely Mail-In Ballots
The PA Supreme Court repeatedly refused to consider this issue during the runup to the 2024 elections (which was probably wise, given the uncertainty that such a ruling, going up to SCOTUS, likely would have engendered).
It has now agreed … Continue reading
“On Voting Rights, Eight Legal Battles to Watch in 2025”
“‘Hopefully, I’ll run into a few friendly faces’: US Capitol rioters return to DC to celebrate Trump inauguration”
Marshall Cohen for CNN:
Some rioters charged or convicted in the 2021 attack on the US Capitol are returning to Washington, DC, for President-elect Donald Trump’s inauguration, according to court filings in a dozen cases and multiple sources familiar with… Continue reading
“Ranked-List Proportional Representation”
I posted this paper introducing a new form of proportional representation that combines the key features of the two PR systems that are most commonly advocated in the American context. The paper is part of a Wisconsin Law Review symposium.… Continue reading