Today we enter the decisive phase of the impeachment process in the House of Representatives. If during this public hearings phase, the House Democrats succeed in convincing the people of the United States that President Trump should, indeed, be impeached and removed from office, it might sway enough Senate Republicans that he will not be acquitted. Otherwise there will be what will be seen as a purely partisan impeachment in the House followed by a purely partisan acquittal in the Senate.

Presently, a narrow majority of Americans and 87% of Democrats think President Trump should be impeached while only 7% of Republicans do. It should be kept in mind that 87% of Democrats is a narrower slice of the American people than the 71% of Democrats who thought Nixon should be impeached—the percentage of independents (who more closely mirror the American people as a whole) in the population has risen considerably while the percentage of either Democrats or Republicans has declined.

Update

Relevant: Politico reports that a recent poll finds 81% of Americans “unmovable” in their views on impeachment. We have, what?, three weeks to find out. It will be a long three weeks.

The sorry history of DACA that I posted yesterday did not include the role of the courts in the debacle. The editors of the Wall Street Journal have remedied that:

The Justices are being warned in DHS v. University of California Regents that if they don’t uphold lower-court injunctions, a million young adults who were brought to the U.S. illegally as children could be deported to a country of which they have no memory. We agree these young adults (often called Dreamers) should be able to remain in the U.S.

But this all started when President Obama, under the smokescreen of prosecutorial discretion, offered legal status and work permits if these adults came out of the shadows. That legal status was never secure, and states threatened litigation if Mr. Trump didn’t rescind Daca. In September 2017 Mr. Trump ordered the program wound down and gave Congress six months to protect Daca recipients with an option to renew work permits for two years.

The goal was to use the time to negotiate a political compromise, but Democrats walked away after lower courts enjoined the rescission and removed an impetus for compromise. The Dreamers have now become pawns due to a breakdown of the Constitution’s separation of powers that needs repairing.

If you can get what you want from friendly courts that are willing to torture the law into a pretzel to make it say what you want, why compromise? That’s why the Ninth and Sixth Circuits have higher rates of reversal than the other circuits—they’re the most political. We should be encouraging political compromise. The alternative is an ever more polarizing country at daggers drawn, perhaps literally.

The editors of the Washington Post have taken the same position as I have with respect to DACA and the Supreme Court case for which oral arguments will be heard today:

As the Supreme Court hears legal arguments Tuesday on the Obama-era policy that provided a reprieve from removal and gave job permits to hundreds of thousands of young unauthorized immigrants, and on the Trump administration’s 2017 attempt to rescind that policy, it’s worth remembering some history. Specifically, that members of Congress of both parties have been trying, and failing, to codify those very protections for so-called dreamers since nearly the turn of the century.

It was August 2001 when then-Sen. Orrin G. Hatch, a Utah Republican, and Sen. Richard J. Durbin, an Illinois Democrat, introduced the Dream Act, outlining a pathway to legal permanent residency for migrants who entered the United States as minors, usually with their parents. Since then, repeated iterations of that measure have become enmeshed in the broader partisan impasse over immigration, even as lawmakers, including many Republicans, voiced ritual sympathy for dreamers.

and

But Congress could regain some respect by doing the right, the obviously right, thing before the court rules.

A narrowly-tailored bill could be brought to the floor and voted on quickly. I believe it would receive bipartisan support.

As you probably know November 11 was the day on which the armistice between the Allies of World War I and Germany was signed, leading to the end of the “Great War”. We have had several “wars to end all wars” since. That’s what it was called when I was a kid. It’s been Veteran’s Day since 1954.

I don’t have a problem with commemorating particular dates or individuals but I have reservations about broad sweep generic holidays like Memorial Day (originally commemorating those who died in the Civil War) or President’s Day (for nearly two centuries celebrated on February 22, the birthday of George Washington).

Should we still be celebrating Veterans Day and why?

In anticipation of the Supreme Court’s taking up the Deferred Action for Childhood Arrivals (DACA). From ABC News:

More than 700,000 young immigrants, who came of age in America but have lacked permanent legal status, look to the U.S. Supreme Court on Tuesday to uphold a program protecting them from deportation to countries they’ve never truly known.

The justices will hear oral arguments in a case challenging President Donald Trump’s controversial 2017 decision to end Deferred Action for Childhood Arrivals, or DACA, which grants qualified immigrants temporary residency and work privileges.

perhaps we should consider how we got into this mess. Here’s NBC’s recounting of the history:

Immigration reform couldn’t pass into law when Republicans controlled the White House and Congress (in 2005-2006). It couldn’t pass when a Republican was in the White House and Democrats controlled Congress (in 2007-2008). It couldn’t pass when Democrats controlled both the executive and legislative branches (in 2009-2010). And now we officially know this after yesterday: It isn’t going to pass with a Democrat in the White House, Democrats in charge of the Senate, and Republicans in charge of the House of Representatives (2011-2014). Back in 2008 or 2012, Republicans COULD argue that President Obama didn’t make immigration reform a priority, or that he took steps to stymie reform in when he was a senator. (And 2010, in particular, the one REAL moment of the Obama first term when immigration was possible, it was Senate Democratic leaders who weren’t ready to give up the politics of the issue. And the White House didn’t fight.) But now, no reasonable person can say that immigration’s death — in 2013 and 2014 — is anyone’s fault but House Republicans. Still, we also understand why they killed it: They saw no short-term benefit. Yes, the long-term politics (for 2016 and 2020) cry out for Republicans to remove immigration as an issue. But doing so would be so painful in the process (just see Eric Cantor’s primary defeat).

or, in other words, not only is this a bipartisan fiasco but both Presidents Obama and Trump are involved as well. The Supreme Court is being asked to decide if President Obama properly exercised executive discretion not on a case by case basis as the term is customarily applied but to an entire class and whether discretion exercised by President Obama may not be reversed by President Trump.

It should never have gotten this far and the Congress could still act. As I’ve said before I believe that some version of DACA should be enacted into law. My primary concerns are that

1. Whatever criteria are decided on, they should be enforced rigorously and systematically.
2. It should be enacted with bipartisan support.
3. It should apply only to the young illegal immigrants for whom it was intended who have no mens rea not to their parents who do.
4. It should not be a wedge towards an open border.

Sadly, that seems to be too much to ask of the Congress.

As I see it the Court could do a number of different things:

• It could allow President Trump’s cancellation of President Obama’s executive order to stand.
• It could declare in effect that President Obama had powers that President Trump lacks.
• It could kick the case back to the lower courts.

I think the first alternative is pretty obviously the correct interpretation of the law while the second would be truly remarkable and the third incredibly cowardly. This case should never have made it this far and the 9th Circuit should be chastised for it.

I see that Robert Samuelson is coming to share my concerns about the consolidation of American businesses, at least if his latest Washington Post column is any gauge:

The paradox is this: Corporate profits have boomed, while corporate investment (financed in part from profits) has lagged. To explain the paradox, economists have advanced various theories. With ample spare capacity, it’s argued, firms don’t need more investment. Or, the U.S.-China trade wars have discouraged investment by trade-sensitive companies. General uncertainty — reflecting, say, Brexit and President Trump’s possible impeachment — reinforces the effect.

Now comes economist Thomas Philippon of New York University , who makes an astounding claim: The real culprit is the U.S. economy, long considered the most market-oriented major economy, because it suffers from a lack of competition.

Over the past two decades, “competition has declined in most sectors of the U.S. economy, ” he writes in his new book, “ The Great Reversal: How America Gave Up on Free Markets.” Companies can afford to be complacent because they face fewer rivals that might steal their sales and profits. Nor, he argues, is the problem confined to the superstar firms that catch all the headlines. It’s widespread. One recent study of 360 manufacturing industries found that, on average, the market share of the eight largest firms had risen from 50 percent to 59 percent since the late 1990s.

Increasingly insulated against competition — a phenomenon Philippon attributes to lax American antitrust policies and a general indifference to market structure — U.S. companies have had the freedom to raise profit margins and ship hundreds of billions of dollars in profits to shareholders via higher dividends and buybacks. (Buybacks are thought to raise firms’ stock prices by reducing the number of shares outstanding.)

I don’t think the counter-examples he provides are counter-examples at all. His first counter-example is in the auto industry:

Philippon also has minimized how much competitive pressures in the United States have increased since the mid-1960s. Then there were three major automakers (General Motors, Ford and Chrysler); now the number exceeds a dozen.

There are actually only two major U. S. automakers: GM and Ford. Chrysler hasn’t been a U. S. automaker for decades. What is actually happening is that there are global production chains and a significant number of foreign automakers, in some instances grudgingly, have assembly plants in the U. S. But those companies frequently are protected in their home countries and in many cases there is little competition among the suppliers.

Or his next example:

The three major TV networks (NBC, CBS and ABC) have morphed into dozens of cable and streaming video channels.

That’s a myopic view of the actual situation. There are presently a handful of providers: NBCUniversal, National Amusement (CBS), and Disney (ABC) and they own nearly all the other channels and, increasingly, the streaming services. There’s also WarnerMedia, Fox Corporation, Netflix, and Amazon. What appears to be a bit more competition is actually substantial consolidation among sectors that used to be considered distinct: local broadcasting, national broadcasting, production, distribution, and cable. What were dozens of companies a half century ago are now a handful. And the cable providers have government-granted monopolies within their territories.

His final example is even worse:

In 1982, the country had one effective nationwide telephone network (AT&T); now there are four.

In practice there are two and both are splinters of the “one effective nationwide telephone network”. Of his four major carriers (AT&T, Verizon, T-Mobile, and Sprint) AT&T with 35% of the market is, well AT&T, Verizon also with the 35% of the market used to be Bell Atlantic, T-Mobile has 17% of the market, and Sprint, barely able to sustain operations, has 12%. Being a monopoly, even a regional monopoly, doth have its privileges.

I’ve made my views clear. I think that size is the enemy. After a certain relatively small size big companies have fully realized all economies of scale and gain a further competitive edge via rent-seeking. Big companies are inefficient and risk-averse. We should be breaking up megacorporations simply because they’re too big not to be dangerous. If we’re worried about the ability to compete with foreign megacorporations, we should bar them from doing business in the United States.

We don’t need to emulate China to be competitive with China. We can’t compete with them in China because we’re not allowed to and unless we’re willing to adopt the Chinese model fully, which means nationalization, protection, and subsidies, we can’t compete with them here, either.

I thought that Rahm Emanuel made a terrible mayor for Chicago but that doesn’t bar me from recognizing that he’s one of the savviest political strategists the Democratic Party has. Here’s his advice to the presidential candidates from a piece at Politico:

Every Democrat shares in the conviction that our overriding priority is making Donald Trump a one-term president. Liberal or moderate, we’re united in wanting to win. And after our big victories last November and earlier this month—which saw Democrats victorious not just in safely blue areas, but also in competitive suburban communities and battleground states—there’s no question about how to get that done.

Which is why, for the life of me, I cannot understand why our presidential candidates are failing to heed the lessons from Democrats’ 2018 and 2019 victories.

The Democratic candidates who have prevailed in battleground contests since 2016 didn’t embrace pie-in-the-sky policy ideas or propose a smorgasbord of new entitlements. They didn’t talk constantly about providing a guaranteed basic income. Or promising to make college free. Or eliminating private insurance and replacing it with a government-run health care system. Or giving $250 more each month in Social Security benefits. Or enacting the Green New Deal. Or calling for the immediate and abrupt end of fossil fuels. Or vowing to seize guns from people’s homes.

They also didn’t run on decriminalization of entering the country without authorization or anything else that might be construed as “open borders”. Okay, what should they be doing?

When Whitmer was running for governor, she made “Fix the Damn Roads!” her campaign slogan because that phrase spoke to Michiganders’ general frustration that government simply wasn’t doing its job. She wasn’t offering voters Shangri-La, in large part because she knew they wouldn’t believe any elected official could deliver it. Instead, she offered the public an appreciation that getting the basics done well would exceed most people’s expectations and help improve their lives in practical, tangible ways. By tapping into the prevailing view, Whitmer was able to fortify our party’s Metropolitan Majority—flipping a swing-state gubernatorial seat Republicans had held for eight years.

That’s why our party enjoyed so much success both in 2018 and then again this Tuesday. What’s so odd is that despite the lessons of their success, our candidates are taking positions during this primary campaign that will almost inevitably be liabilities during the general election.

The dissonance is remarkable. Compare what the candidates who won last year and this year’s elections have done to what the presidential candidates are offering ahead of 2020. On health care, successful Democrats didn’t mention Medicare for All; they explained how they would control prescription drug costs and preserve protections for pre-existing conditions. They didn’t offer free college; they spoke about equity and fairness across the educational spectrum, from early childhood to higher ed. They didn’t talk about the Green New Deal so much as they proposed to expand renewable energy and invest in the jobs and growth that come with it. They didn’t offer to guarantee anyone’s income so much as explained how they would attract good jobs that would provide for a middle-class life. They didn’t talk about confiscating guns from law-abiding citizens; they promised to support the background checks that prevent criminals from getting access to weapons.

That isn’t just politically pragmatic. It warms the cockles of my elderly heart. I believe in good, competent government. That’s why I find the claim that too many Democrats are making, that government employees should resist any policies they don’t like because they don’t like the incumbent so damaging. It isn’t conducive to good government.

Sometimes good government means less government; sometimes it means more. It means making workable policy choices and at least attempting to cobble together a consensus to support those choices rather than ruling by 50%+1.

At Time Robert Ray expresses an interpretation of the House’s power of impeachment that will strike many as just wrong:

So while it is fashionable at the moment for some to argue that President Trump is removable from office simply if it is proved that he abused the power of his office during his July 25 call with Ukrainian President Zelensky, the Constitution requires more. To ignore the requirement of proving that a crime was committed is to sidestep the constitutional design as well as the lessons of history. A well-founded article of impeachment therefore must allege both that a crime has been committed and that such crime constitutes an abuse of the President’s office.

The problem for those pushing impeachment is that there appears to be insufficient evidence to prove that Trump committed a crime. Half the country at present does seem prepared to conclude, on the basis of the summary of the Trump-Zelensky call released by the White House on Sept. 25, that Trump at least raised the prospect of an unlawful quid pro quo. The theory seems to be that Trump proposed an exchange of something of personal benefit to himself in return for an official act by the U.S. government. On one side of that alleged quid pro quo would be the public announcement of an investigation by Ukraine into a rival presidential candidate, former Vice President Joe Biden, and a member of Biden’s family. On the other: the release of temporarily withheld foreign aid, including military assistance.

or at least terribly inconvenient. The view that a “high crime or misdemeanor” is anything the House says it might be is pragmatic and was first noted by Gerald Ford during the Watergate hearings. It is pragmatic but it may not be legal and it is unlikely to rally many Senate Republicans to the House’s cause.

That the Constitutional formula may have an actual meaning is the very reason that ever since the story of the Ukraine phone call broke I have been saying that it was incumbent on the House to define precisely what they objected to in the president’s words and actions. I don’t believe they can without condemning presidential negotiation with foreign heads of state as such, something clearly within the scope of presidential authority. Should it be illegal for a president to ask something of political benefit to himself in negotiations? Of personal but intangible benefit? How would that not make the negotiation of the Trans-Pacific Partnership agreement, for example, an impeachable offense?

My point is: be careful how you answer.

Continuing with my perplexed series of posts, the two different camps, Trump’s supporters and those opposing him, are living in two completely different worlds. For his opposers, he’s about to be impeached, rightfully, by the House while the Senate will clear him for purely political reasons. For his supporters, the House is engaging in a purely political exercise and Trump will be acquitted by the Senate. For his opponents Trump has been engaged in treasonous or, at least, damaging activities since before his election. For his supporters, partisan Democrats within government have been undermining Trump’s presidency since before Trump’s election. For Trump’s supporters the soon-to-be-released Department of Justice Inspector General’s report will reveal the truth about the Deep State conspiracy. For his opponents it’s all a bunch of nothing.

They hate each other.

I don’t know who is right and who is wrong or if they’re both wrong or both right.