Strange Interpretation of the Supreme Court DACA Ruling

Mental gymnastics are nothing new in politics and the ongoing battle over Deferred Action for Childhood Arrivals (DACA) is no exemption. After Congress failed to pass the DREAM Act, which would have shielded undocumented immigrants who arrived here as children from deportation and given them a path to citizenship, President Obama instituted DACA, it included  prioritizing deportation of undocumented immigrants with criminal histories and deprioritizing child arrivals, Obama, by executive order, made it United States immigration policy that these "Dreamers" (after the DREAM Act) would be able to work, attend school and come out of the shadows without fear of deportation.

Opponents viewed this action as a usurpation of Congress' legislative powers; proponents argued that it was well within the discretionary enforcement authority of a federal agency. Trump announced during his campaign that he would rescind the program, and attempted to do so early in his term, using the program as a bargaining chip in his quest to get funding for his border wall. After his executive order reversing Obama's executive order creating the program, it was reversed by several courts, eventually making its way to the Supreme Court.

This summer the Supreme Court ruled that the Trump administration's rationale for eliminating DACA did not hold water. There are legal procedures that must be followed in order to eliminate a program that is already in place (I won't get into the details...use The Google), the administration did not follow these procedures. The Supreme Court did not rule on the legality of DACA. And that's really the heart of the matter. DACA is a popular program. Trump does not want it eliminated because he doesn't like it, he wants it eliminated because it's illegal, which he cannot do, because the court has not addressed that issue, and only ruled narrowly on procedure.

Here's where it gets weird. John Yoo, a former adviser to President George W. Bush, wrote an article where he suggested that the DACA ruling gives a president virtually unlimited authority, by executive order, to bypass Congress in enacting its policies. These orders will then be protected from reversal by subsequent presidents, unless a years-long legal fight ensues. This theory has been making the rounds of right-wing and Trumpist pundits. Trump himself referred to it twice in the last week, once in reference to a change in immigration policy, and second, oddly, pertaining to unveiling a new comprehensive health care plan "in two weeks".

That's not what the ruling days, or even implies, but Trump has always been open to tinfoil hat interpretations of what he could and could not do. He has also demonstrated a willingness to bend the Constitution into a pretzel to get what he wanted, such as his declaration of a national emergency at the border that seemed to evaporate after he used it to justify diverting military funds for wall construction after he has been rebuffed by Congress; and his recent use of federal officers supposedly to protect federal property in Portland.

Trump has had, from Day One, an authoritarian mindset, who knows what bullshit he will attempt as his term winds down.

Electoral College, Bad History and Bad Math

Since the Supreme Court just ruled on an aspect of the Electoral College, I thought it was time to talk about this undemocratic aspect of our electoral system.

The Supreme Court ruled that states could institute legal penalties on "faithless electors". A faithless elector is one who doesn't vote for the candidate he is supposed to (usually whoever received a plurality of a state's votes). In 2016 two electors pledged (i.e. legally required) to Trump voted for other Republicans instead. Five electors pledged to Clinton voted for other candidates. Since constitutionally states have the responsibility and authority to decide how electors will be allocated, some states have laws that require electors to vote for the candidate who receives the most votes, some of those states have penalties for those who break that law and vote for a different candidate.

The Electoral College came about as a result of several interlocking compromises during the writing of the Constitution. Unlike today, where states are largely administrative districts within the greater nation, after the Declaration of Independence each former colony viewed itself as a separate state, a state being defined as a sovereign entity. Thus, the original 13 states should be viewed prior to the ratification of the Constitution as 13 independent countries which joined together in an alliance. The government of the United States under the Articles of Confederation mainly handled mutual defense and relations with other countries, but had no internal authority. This attitude carried over into the writing of the Constitution.

When designing the legislative branch, this view that each state was a separate entity influenced the number of representatives each state would have. There was no consideration that individual citizens would have a voice, but much consideration was given to how much of a voice each state would have. More populous states naturally wanted representation to be by population, the slaver states wanted the population of enslaved people to be counted, the states with smaller populations of course leaned toward equal representation. (Under the Articles of Confederation each state had one vote). The compromise was that the House of Representatives would have members allocated by state population, slaver states counting each enslaved person as 3/5 of a person. The Senate would have two Senators for each state, no matter the population, chosen not by election, but appointed by the state government.

For presidential elections, the founders were concerned that the "wrong" type of person, a demagogue, would be elected if the president were to be elected by popular vote. So they instituted the Electoral College, a group of people who could overrule the popular vote if they saw fit. Electors were allocated according to the number of Representatives and Senators for each state. Originally the Constitution specified the the highest vote getter in the Electoral College would be President, while the runner up would be Vice-President. This system ran into a glitch almost immediately.

During the third presidential election, John Adams, the Federalist candidate, was running against Thomas Jefferson, the Republican candidate. Adams received the most votes, Jefferson, the second most, so Adams had as his Vice President a political rival. In the very next election Jefferson and his Vice Presidential running mate, Aaron Burr both received the exact same number of votes. According to the Constitution this meant that the election would need to be decided by the House of Representatives, which took 36 ballots to select Jefferson as president. The Constitution was soon amended to have the President and his Vice Presidential running mate run as a unit, removing the possibility of a tie between a  presidential candidate and his running mate.

One of the pro-Electoral College arguments is that "we are a Republic and not a Democracy". At the very least this stance misunderstands what republics and democracies are. A republic, from the Latin res publica, a matter of the people, is at its simplest, anything that is not a monarchy. At the time of the writing of the Constitution, monarchies were the most common form of government in Europe and in European colonized/conquered areas. Republics then (and now) could take any number of forms. More often than not they took the form of a limited strata of society having the right to vote and to govern, with the majority being voiceless. A Democracy, from the Greek demos archos, power from the people, simply meant that some sort of voting took place. As with republics, the people who had the right to vote varied. Democracy was not all one thing - you could have direct democracy, sometimes derided as mob rule, or you could have representative democracy, which was no different than a republic. The terms "republic" and "democracy" are not mutually exclusive; our form of government could be called a democratic republic, a representative democracy or any similar combination. The "we are a Republic and not a Democracy" argument posits that a system like the Electoral College is a necessary feature of a Republic, which is demonstrably not true. Each of the states in the United States is constitutionally guaranteed a republican form of government, yet all 50 governors are elected by popular vote. Many other Republics elect their chief executives by popular vote. I would concede that something like an electoral college might be a necessary feature of a federal republic, one in which states are distinct and quasi-independent entities. I would argue that even though our states started out as effectively separate nations within a nation, we have long since functioned more as a unitary nation-state with state and regional differences having become negligible.

The reasons for having an electoral college instead of direct popular vote no longer exist.

Another reason that Electoral College supporters put forth is that the "big cities" or "the coasts" will dominate and the votes of people in small states or in rural areas will be rendered meaningless. This is an argument that fails to examine the basic math involved. The way things stand, all of a states electoral votes go to the top vote getter in that state (there are two exceptions, Maine and Nebraska, which allocate the EC votes by Congressional district). A slight majority of a state's voters could choose one candidate, say 50.2%, while the "loser" gets 49.8% - all the electoral votes go to the winner. In this scenario 49.8% of the votes are meaningless. In another scenario, 4.0% vote for the Green Party, 6.5% vote for the Libertarians, 42% vote for the Republicans and 44.5% vote for the Democrats. In this scenario, 54.5% are effectively disenfranchised. In a direct popular vote system, all of those votes would count toward the total. Currently at least 40 states are considered "safe" for one major party or the other. There are enough voters who will reliably vote for one party that there is not a great need for a candidate to worry about that state's electoral votes or to campaign there. This means that ten or fewer states are considered "in play", the so-called battleground states.

Popular vote opponents like to argue that Democratic-leaning states like New York and California would be dominant, but ignore the math. California has around 12% of the nations population and New York State has 5.8%. Under the current, electoral college system, California has slightly more than 10% of the electoral votes and New York around 5.4% - not much of a change. Both of these states would actually see their influence diluted - California has many Republican voters and New York outside of New York City is also reliably Republican, all of these Republicans would now be able to have an influence in presidential elections. Under a popular vote system, every vote would count, not just those in swing states.

There is no compelling reason to select our president using the Electoral College, other than "this is the way we've always done it". The reasons for implementing it in the first place no longer exist and the justifications for opposing a change to the popular vote are weak or not fact based.