The Tariff Decision

The Supreme Court’s decision striking down Trump’s illegal tariffs was welcome, but hardly unexpected–and as Josh Marshall has reminded us at Talking Points Memo, hardly a sign that the Court has changed its corrupt ways.

For one thing, the tariffs were so transparently illegal it would have been incredibly difficult to save them (although three of the Court’s most incorrigible members tried.) As Marshall noted, there simply was no ambiguity in the law in question. He is absolutely correct when he says the decision wasn’t some big win. Granted, it’s certainly better to prevent a rogue president from continuing immensely harmful and blatantly illegal acts than permitting him to continue them. But it would be a mistake to view this decision as evidence that the Court is abandoning its substitution of political preferences for legal analyses.

This is a case where the legal merits of the President’s action were just too transparently bogus even for this Court to manage and — critically — his actions and the theories undergirding his claims to the power were, for the Corrupt majority, inconvenient. The architect of the current Court — the Federalist Society’s Leonard Leo — was behind the litigation that undid the tariffs. That tells you all you need to know. In this case Trump’s claim to power was neither in the interests of the Republican Party — the Court’s chief jurisprudential interest — nor any of their anti-constitutional doctrines. So of course they tossed it out. This may sound ungenerous. It’s simple reality.

Actually–as Marshall also points out– the decision can be viewed as an indictment of the Court, which delayed issuing its decision for almost a year, and allowed the tariffs to upend whole sectors of the U.S. and global economies during that time. The Court allowed this president to exercise clearly illegal powers for almost a year, and it’s hard to disagree when Marshall says that “If the Constitution allows untrammeled and dictatorial powers for almost one year, massive dictator mulligans, then there is no Constitution.”

Part of the delay of this ruling is the fact that most major corporations were afraid to bring litigation because they didn’t want to go to war with the president. But that’s also an indictment of the Supreme Court’s corruption. Because they made clear early on that there was little, if any, limit they would impose on Trump’s criminality or use of government power to impose retribution on constitutionally protected speech or litigation. So that’s on the Court too. But it’s only part of the equation. The Court also allowed the tariffs to remain in place while the government appealed the appellate decision striking down the tariffs back in August. Let me repeat that: back in August, almost six months ago.

In other words, most of the time in which these illegal tariffs were in effect was because of that needless stay. The logic of the stay was that deference to President’s claim of illegal powers was more important than the harm created by hundreds of billions in unconstitutional taxes being imposed on American citizens. It’s a good example of what law professor Leah Litman — one of the most important voices on the Court’s corruption — earlier this morning called the Court’s corruption via “passivity,” empowering anti-constitutional actions through deciding not to act at all or encouraging endless delays it could easily put a stop to in the interests of the constitutional order.

The word “corruption” is harsh, but deserved.

Consider the Court’s increasing and unprecedented use of the so-called “Shadow Docket” to issue orders untethered to analysis. And that corruption hasn’t only been in service of the Justice’s political ideology. Investigations have uncovered copious evidence that both Alito and Thomas have accepted numerous, undisclosed luxury trips and gifts from billionaire donors with interests in pending court cases. ProPublica has reported on the numerous  gifts Thomas has accepted from Harlan Crow, and on the trips Paul Singer gifted Alito. 

The Separation of Powers prescribed by America’s Constitution requires three branches of government acting with integrity to preserve their separate prerogatives. The crisis we currently face is, in very large part, a result of a corrupt Supreme Court and a Congressional majority composed of cowards and eunuchs, branches that have ceded their constitutional authority to a bloated, lawless and increasingly lunatic executive.

When We the People retrieve our government from the MAGA fascists and neo-Nazis, reform of the Supreme Court should be one of the first orders of business.

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Fringe Groups And Collective Action

Why is it that so-called “fringe groups” are able to drive political discourse and elect people who are clearly non-representative? What accounts for the successes of MAGA, for example, when all credible research confirms that the movement represents a minority of Americans? (Granted, it’s a depressingly larger percentage than I would have guessed, but still a minority.) 

It’s a phenomenon I’ve encountered in other situations.

Back in 2007, a bipartisan group of Indiana leaders–the Kernan-Shepard Commission–was formed to study the structure of Indiana government. Among the recommendations issued by the Commission, led by former Governor Joe Kernan and Chief Justice Randall Shepard, was one that mirrored a proposal issued by former Governor Paul McNutt—in 1936.  (Never let it be said that Hoosiers rush into anything–the Hoosier legislature is finally considering consolidation of Indiana’s 1008 townships into a more workable number– this year.) 

The Kernan-Shepard proposal was supported by the Indiana Chamber of Commerce, the Central Indiana Corporate Community Council, the Indiana Realtors, and the Professional Firefighters Union. All of those organizations agreed that Indiana’s inefficient and bloated governing structure was strangling us, driving up property taxes while starving service delivery. As the campaign for reducing the number of townships pointed out at the time, Indiana citizens pay for, and are governed by, more than 10,300 local officials. The state “boasts” 3,086 separate governing bodies, hundreds of which have taxing authority. 

This bloated superstructure (much of which remains) made it nearly impossible to follow through on the perennial promise of political candidates of both parties to root out waste–much of that waste is a result of overlapping and outmoded units of government. It’s certainly not in service delivery. As I wrote at the time, in Indiana, we don’t put tax revenues to work enhancing our quality of life. Instead, we use a significant portion of them to pay for 1008 Township Trustees and other officeholders we no longer need.

Despite polling that showed a large majority of Hoosiers in support, that 2007 campaign to consolidate failed. It was my introduction to a longstanding axiom of political science: small, highly concentrated interest groups are more politically effective than larger but diffuse groups. 

The reason is salience– the importance we attach to a particular issue. 

In 2007, townships were an artifact of the days when travel to the county seat (by horseback) took half a day. Their responsibilities had steadily shrunk; they did little but run (some) fire departments and administer (with documented inefficiency) poor relief. Poll after poll confirmed that most Indiana voters agreed with the Commission that those duties should move to the county level. Convincing the legislature to consolidate them should have been a no-brainer.

But it didn’t happen.

Although majorities of voters agreed that townships should go–that they wasted money better used elsewhere–it was a rare individual for whom this was a burning issue. For the Township Trustees and members of their Advisory Boards, however, it was issue #1. Eliminating townships would eliminate the livelihoods of the Trustees (and the relatives many of them employed). It would eliminate the inflated fees paid to Advisory Board members for attending three or four meetings a year. The individuals for whom townships were issue #1 focused like lasers on lawmakers, marshalling their forces, bringing in people to testify, hiring lobbyists and calling in political favors. For them, the issue was salient. And we still have 1008 townships.

Before there was MAGA, there was the Tea Party.. Both movements were more politically effective than their numbers would have predicted, because the grievances that members shared were so salient to them. It reminded me of a famous quote from Margaret Mead: “Never doubt that a small group of thoughtful, committed individuals can change the world. In fact, it’s the only thing that ever has.” Unfortunately, it is also true that committed small groups that aren’t so thoughtful can also change the world, and not for the better.

There is no honest way to ignore the shared White Christian nationalism and deep-seated hatreds of MAGA adherents. Their war on DEI and “woke-ism,” their attacks on “elitists,” science, and expertise of all sorts are evidence of the salience of their resentments and hatreds–a salience that has allowed them to marshall their forces and “punch above their weight.”

MAGA’s cult-like behavior, and Trump’s buffoonery and incompetence, has had one arguably encouraging effect. It has vastly increased  the salience of constitutional and democratic principles to the “diffuse” majority of Americans. The Resistance is coming out in force.

And this year, Indiana may actually consolidate some townships, although I’m not holding my breath…

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Speaking Up

A couple of weeks ago, I read a media account about a Pennsylvania man who’d sent an email to the Department of Homeland Security (DHS), urging the use of “common sense and decency” in an upcoming case. Within hours of sending the email, DHS issued a subpoena to Google for the man’s information. Two weeks later, two DHS agents and a local police officer visited his home to interrogate him about the email. 

When my husband and I discussed the incident, he admitted to worrying about similar reactions to the sentiments I express in these daily rants….

A few days later, in a conversation with my younger grandson, we addressed the issue from another angle: not whether citizens have a First Amendment right to criticise the government (we absolutely do, as the ACLU evidently reminded DHS after that interrogation), but whether patriotic citizenship implies a positive duty to speak truth to power, to defend American principles when they are under attack. We concluded that such a duty exists, even in situations when speaking up may involve a measure of risk.

I thought about those conversations when I read one of Robert Hubbell’s recent newsletters. Hubbell was clarifying his previous reaction to the way in which Anderson Cooper had departed from Sixty Minutes. His criticism wasn’t about the departure; it was about Cooper’s muted explanation of the reasons for that departure. Hubbell went on to make a point that directly addressed the immense importance of speaking up at times like these.

Here’s what he wrote:

We live in a fraught moment in which we have three choices for responding to Trump’s attempt to end democracy: capitulation, remaining silent, or raising our voices.

In reality, there are only two choices because capitulation and remaining silent are the same. Both advance Trump’s agenda, even though they involve different degrees of cooperation. But, in the end, dictators count on most people shrinking into the shadows. When good people remain silent, it becomes easier for the dictator to target those who raise their voices.

Let’s use Mark Kelly and the five other members of Congress who participated in the video about the duty to refuse illegal orders (Sen. Slotkin and Reps. Crow, Goodlander, Deluzio, and Houlahan). They made a brave choice. Rather than remaining silent as the US military murdered helpless civilians clinging to a shipwreck, they spoke out. Their leadership by example illustrates why they were good soldiers and commanders, and why they are good members of Congress.

As expected, Trump directed his ire at the six legislators, going so far as to seek indictments against everyone in the small group. They might still be indicted; they might still lose their retirement rank and pay. They remain at risk for speaking out.

Let’s imagine an alternate scenario. Suppose the day after Trump accused Kelly and others of sedition and called for the death penalty, the 93 additional members of Congress who are retired military veterans released the same video. And then the next day, 100 retired generals and admirals released the same video. And the next day, another 100 retired generals and admirals made the same video. As the number of those speaking out mounted, Trump and Hegseth would have retreated into sullen silence.

But because good and honorable men and women have chosen to remain silent, they are abandoning their colleagues during the most important fight of their lives. The other retired military members in Congress and retired generals and admirals are leaving Kelly and the others exposed to enemy fire, even though they have the capacity to provide cover merely by ending their silence.

Anderson Cooper quietly left CBS as it was being censored at the hands of Bari Weiss, paid for by Larry and David Ellison, to please Donald Trump. Anderson Cooper remained silent when he could have spoken the truth. That was a choice. Just like it is a choice for retired military members of Congress who send private text messages of encouragement to Kelly and the others but lack the courage to speak the same truth. Their silence is a choice.

 The simple but profound act of bearing witness to the truth by standing on a roadside or an overpass with a protest sign is a choice. It is the right one. It is a choice that inspires others. It tells them there is strength in numbers. It tells them not to lose hope.

Kelly, Slotkin, Crow, Goodlander, Deluzio, and Houlahan made a choice.

Their retired military colleagues in Congress made a choice.

Anderson Cooper made a choice.

We are being called upon to make a choice. Let’s make the right one.

I couldn’t agree more!

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Local Control? Surely You Jest…

The anticipated conclusion of the 2026 session of Indiana’s legislature is February 27th, due to an unusually early start; the statutory deadline is March 14th.

Let’s hope they meet the target date of February 27 th. The end can’t come soon enough…

Every year, the intrusions of Indiana’s legislative overlords into local decision-making makes me wonder why Hoosiers even bother electing Mayors and city councilors. This session is no different. At this point in the session, some of the more egregious measures have–thankfully–been deep-sixed (I’m thinking especially of an outrageous bill that would have overruled local zoning affecting billboards–undoubtedly a bill near and dear to the hearts of lobbyists for the billboard industry). But plenty of the intrusions remain viable, and look likely to pass.

Mirror Indy has reported on a bill that aims to forbid county councils from using state road funding for projects picked by individual councilors. While the measure would apply statewide, the proposal probably targets Marion County, where reports emerged last year asserting that a few city-county councilors had used their share of a $25 million pot of money to fix roads in front of their homes or near their workplaces.

Assuming those reports were accurate, the appropriate response in a small-d democratic system would come from the voters. Inappropriate decisions about where to spend public monies are a time-tested political issue, and in a properly functioning system, would become campaign issues the next time those accused of self-dealing were up for re-election. In other words, local voters would decide whether the accusations were accurate and if so, whether the behavior of these particular councilors–when considered alongside other performance by those councilors–required their replacement.

Instead, the legislature has moved to restrict all counselors statewide from having a say in the way these funds would be spent.

This example is hardly a one-off. Just this session, Indiana’s legislature has moved to preempt local rental regulations. HB 1210
would block local governments from adopting or enforcing rules that limit homeowners’ ability to rent out their property,
overriding existing local ordinances in cities like Carmel and Fishers that limit short-term or unit rental caps.
Cities and towns would no longer have the ability to tailor rental housing rules to the specific needs of their communities or to respond to the particularities of their local housing markets.

HB 1001 is even more egregious. It would impose statewide standards on local zoning and permitting–usurping the historic prerogatives of local officials to respond to neighborhood desires and other specific situations in their communities  The measure is presumably prompted by a not-unreasonable desire to increase housing supply, although how that goal would be furthered by the imposition of statewide criteria for lot sizes, parking and density, or by the removal of local control over design requirements, is–to be charitable–difficult to understand.

Even worse, SB 176 would prevent local governments from using zoning/land-use powers to restrict or ban shooting ranges. (I wasn’t aware that Second Amendment rights extended to zoning…)

There’s more, but the overall picture reinforces the obvious belief of the GOP super-majority that Indiana legislators are elected to supervise all lawmaking within the Hoosier State, not simply matters that are usually and properly considered state issues.  The 2026 session continues a longtime trend in Indiana, where state lawmakers believe they know more than local officials and feel free to preempt lawmakers who’ve been elected to exert local control. In previous sessions, the legislature has overruled local lawmakers on issues ranging from puppy mills to the use of plastic bags.

There are numerous problems with this legislative arrogance. Local government officials are closer to the people they represent, and more accessible. In areas that still have local media covering local governments (another problem, granted), it’s easier for voters to monitor their performance. Political theorists since Alexis de Tocqueville have pointed out that robust local governance strengthens democratic habits and builds civic competence. It also allows for what political scientists call “better policy fit and contextual sensitivity.”

There can certainly be differences of opinion about when standardization is desirable, but that sort of thoughtful discussion has generally been absent from the rulemaking in Indiana’s General Assembly, where far too many legislators are unfamiliar both with accountability and with the virtues of an appropriate humility.

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Ranked Choice Voting

As I write this, Indiana’s legislature is close to passing Senate Bill 12, a measure that would prohibit the use of ranked-choice voting in Indiana. The bill was co-authored by Republicans who are evidently worried that the state might use the system some day in the future (it is not in effect now and has not, to the best of my knowledge, been proposed). 

What, you may be asking, is ranked-choice voting, sometimes called “instant runoff” voting?

It’s simply a system that allows voters to rank candidates in their order of preference, rather than forcing them to select just one. In other words, voters rank the candidates–first choice, second, and so on. The vote count begins with the first choices; if one candidate receives over 50%, that’s it. Election’s over. If no candidate receives a majority, the candidate with the fewest first-choice votes is eliminated, and his or her votes are reassigned to the remaining candidates based on each voter’s next highest preference. The process of eliminating and redistributing continues until a single candidate achieves a majority of the remaining votes.

Organizations concerned with fair elections support ranked-choice voting. Indiana’s League of Women Voters supports it because–among other things– the system would “give voters meaningful choices to reduce the toxicity of negative campaigning.” Indiana’s Common Cause supports ranked-choice voting because the organization finds the system makes elections more equitable, allows voters to choose among more diverse perspectives, and provides more choices.

The legislators opposed to the system insist it is “too complicated”–that there is something “unAmerican” about allowing voters to say, in effect, “my first choice is candidate X, my second choice is candidate Y, and if neither of them wins, I suppose I can live with candidate Z. Evidently, they think voters in states that currently use the system, like Maine and Alaska, are smarter than Hoosiers. (Given some of the people we’ve elected, maybe they have a point.)

Interestingly, according to Governing Magazine, in 2020, the state Republican Party used the method to select delegates.

In an article on the subject, Indiana’s Capital Chronicle noted that the award of the Heisman Trophy is the result of ranked-choice voting. The article explained why using that method ensures that the candidate with the most support wins.

This is the same reason why so many states and localities have adopted ranked choice voting for elections for governor, state legislature, city council and other offices. It is an incredibly useful tool for voters in any race with more than two candidates. 

It ensures a majority winner in a crowded field. Voters can choose the person they like best, without fearing that their vote might go to a “spoiler” and help elect the person — or the quarterback — that they like least.

The article then turned to Indiana Republicans’ current effort to ban the system, pointing out that in a state where some 3% of voters are libertarians, ranked-choice voting would mean Republicans would no longer need to worry that a Libertarian candidate might tip the race to the Democrats — and Libertarian voters could support the candidate of their choice without that fear, as well.

Why prevent Indiana and its localities from giving voters more choice? The bill’s sponsors suggest that ranked choice voting is confusing, and that they want to protect Indiana’s current election system. But every poll conducted after a ranked choice election shows that huge majorities of voters — often even bigger than Mendoza’s Heisman margin — like it, find it easy to use, and want it expanded to other elections. 

Beyond the flaws of SB12 are other questions: Why, in a short session with limited time to address other pressing issues, has the GOP super-majority decided to spend time banning something the state isn’t doing anyway? Why is our legislature overruling– in advance–the ability of Indiana’s local jurisdictions to adopt a voting measure used in hundreds of cities and counties across the country?

As the Capital Chronicle quite properly concluded, we need to reject this nonsensical ban. “Ranked choice voting produces more positive campaigns, majority winners, and puts an end to spoilers. It’s proven and it’s easy. If Indiana’s political parties, cities and towns want to adopt it, they should have that right.”

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