Is Supreme Court packing unconstitutional?

 Newsweek has published an opinion piece arguing that Court Packing is unconstitutional. I wondered about this since at first glance the Constitution doesn't specify the size of the Supreme Court so how could it prohibit additional justices?

Reading the article the argument is basically that it's wrong to add justices to change the ideological makeup of the Court. Thus court packing is unconstitutional because it's being done for the wrong reason. This argument may seem absurd yet numerous courts have struck down Trump administration actions (e.g. immigration restrictions) in this way. The court argues that President Trump's reasons for some new action make it illegal even if the law appears to allow the action.

This argument also follows the reasoning of other court rulings. There is no mention of abortion or same sex marriage in the constitution yet the Supreme Court has found them to be protected by the Constitution. Using a similar argument to prohibit court packing shows the nature of one school of constitutional interpretation which can find any desired result in the Constitution given enough looking.

Is this interpretation correct? That's less clear. In a way the argument against court packing boils down to the Constitution protecting "tradition". The this sense it's the opposite of the ruling in favor of same sex marriage (which is not traditional). Yes arguing court packing is unconstitutional would be quite ironic. Rulings which extract some hidden meaning from the Constitution (e.g. abortion, same sex marriage, etc) tend to be favored by the political left while more literal readings and originalism are of the political right. Yet this argument, though in the nature of the "left wing" court arguments, would have the effect of favoring the right.

Is Trump's criticism really so unprecedented?

 The latest anti-Trump headline is "Trump launches unprecedented attack on military leadership he appointed." President Trump criticized military leadership,saying:

I'm not saying the military's in love with me -- the soldiers are, the top people in the Pentagon probably aren't because they want to do nothing but fight wars so that all of those wonderful companies that make the bombs and make the planes and make everything else stay happy,

This is termed an "unprecedented attack". Yet reading this statement it sounds a lot like statements from "doves" in Congress who want shrink the military. So it doesn't look like this is an unprecedented attack, unless it's the fact it's an "attack" by a President who has increased the military budget.

Notice the pattern -- the Trump administration has supported the military overall but the headlines are all "Trump hates the military" because something could be taken negatively.

Media bias in the era of Trump

The media again shows how anything from Donald Trump is taken in the worst possible light.

One of the big stories this morning is that Donald Trump suggested delaying the 2020 election. A CNN headline is typical:  "Trump floats delaying election despite lack of authority to do so."

So what is the basis of this outrage? Turns out Donald Trump did a single tweet:

With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???

— Donald J. Trump (@realDonaldTrump) July 30, 2020

From this the media emphasizes:

1. The standard talking point that there is no election fraud in the United States and an all mail ballot is no different than absentee balloting so there's no problem switching to an all mail ballot system.
2. Donald Trump doesn't have the authority to do this. Maybe he's going to defy the law and constitution?

As far as I can tell all Donald Trump did is make a suggestion. The suggestion wasn't even in any sort of official setting. But to the media any suggestion made by Donald Trump is considered to be a fait accompli, official policy, and something he is driving to implement.

Yet Donald Trump didn't say going to do this unilaterally. Presidents make proposals all the time which they know perfectly well they can't implement unilaterally. The State of the Union address is largely a list of legislative proposals from the President. Nobody screams that the President is going to steamroll over Congress. But in this case he will?

This story is part and parcel of the media narrative that Trump is an authoritarian and/or dictator (odd he hasn't shut them down if he were) and that he doesn't intend to leave office if he loses the election, instead proclaiming himself dictator. And what is the evidence of this? Essentially zero. Trump did mention a third term at one of his rallies a year or so ago. This is after a few bloggers had suggested that there needs to be a way to punish (Democrats in) Congress for refusing to acknowledge the legitimacy of his election. This was similarly a throwaway line at a rally, not a serious proposal.

So here we again see the media creating a controversy. Donald Trump never said he would unilaterally postpone the election but the media chose to interpret his statement that way because it shows him in the worse light.

Has Trump lost the election

The media is telling us how far behind Donald Trump is in the polls. There are regular articles about how Trump's presidency is melting down and in panic.

It might be informative to consider the situation four years ago. In 2016 after Trump clinched the nomination and before the convention he trailed Hillary Clinton in the polls by about the same percentage as today. Four years ago Hillary Clinton was a candidate without a strong, excited base. She was unable to get much of the Obama vote, in particular in the swing states which mattered.

So today? Trump trails in the polls. He has an opponent who hasn't generated a lot of excitement. For many on the left Joe Biden's chief appeal is that he isn't Donald Trump. People have publicly stated they are voting for Biden as a vote against Trump, especially to to get around some of the unpalatable things in Biden's past.

We shall see how the election progresses.

Expect increased racial disparities?

Recent protests have been all about reducing racism yet what will be the practical result? It seems likely that "racism", defined as avoiding hiring or associating with some racial groups, might increase.

First, after the riots over the death of George Floyd, inner cities are going to see a recession. Jobs have been lost at local businesses which have been damaged or destroyed. Many businesses will leave the area rather than re-open in the same location. And businesses will think twice before locating within the city.

Why? We are starting to see violent protest after every new viral event (e.g. Atlanta this last weekend). There is also an election in November and if Donald Trump is reelected there is a good chance of a new round of violent protest. There were protests and some violence after Trump's initial election, it will be much worse if he's reelected.

There is also an emphasis on unintentional racist statements. These can be as simple as asking somebody "how was your weekend". If this is racist I can argue ANY general conversation or small talk might be considered racist by somebody. Will people want to hire minorities if there's a chance employees will be called racist for statements they consider normal conversation?

We also see a number of colleges and schools grading minorities on a more lenient scale. There is already a problem (due to affirmative action and quotas) that a minority hire for a job may be less qualified. Add the fact their GPA might be inflated relative to non-minorities and companies are left wondering if the candidate is really qualified. Better to hire the non-minority you know did the work.

Unfortunately this will result in another round of people being told all whites are racist.

To "defund the police" it might be best to vote for Trump

The death of George Floyd has brought demands for police reform. Suddenly politicians, largely Democrats, are demanding police reform. Which is ironic since Democrats have controlled most large cities in the US for decades.

Now the question is how much change will actually happen. Will the police be reformed or will the issue die out after a few token gestures?

It occurs to me if Joe Biden wins the presidency in November the "defund" the police movement is liable to die down. This is because part of the push for police reform is being framed as anti-Donald Trump. All of today's ills can be blamed on Trump and the Republicans (whether guilty or not) but as soon as Democrats are in control there's no reason to complain.

If, on the other hand, Donald Trump wins re-election then the Democrats need things to complain about. Defund the police can remain as a hot reform issue.

If there's a "Deep State", here's why they're afraid of Trump

We hear a lot about the "Deep State" that conservatives claim is opposed to President Trump. Two recent executive orders by President Trump show a reason why the deep state might be so strongly opposed to his presidency.

This article in Forbes summarizes the two executive orders and provides links to them. These executive orders instruct agencies to use formal rulemaking to guide regulations. Today too often agencies instead use informal guidance and often impose rules after the fact. Informal rulemaking is also too often used with implied threats of "investigation" if some agency guidance isn't followed. When I have talked to people subject to regulation (e.g. bankers) the major complaint about regulators is that the regulations aren't clear and often appear arbitrary.

Now let's hope these executive orders are implemented and that the next President doesn't quietly reverse them.