The difference between Biden and two presidents who lost reelection, the DC criminal code, and more notes
Thankfully for the president there's a major difference between him and two of his predecessors who lost their reelection fights.
There is a major difference between Joe Biden and two of his recent predecessors who lost reelection — Jimmy Carter and George H.W. Bush — something that should hearten his supporters.
Some of my most devoted readers are already thinking gee Brian, we know, you wrote in December about how Carter and Bush 41 both lost reelection after facing serious primary challengers and discontent from their bases — something Biden doesn’t have. Way to give us a rerun.
But there is another thing that aligns our 39th president and our 41st president that struck me as I read the great Jonathan Alter on Carter’s presidency. Their biggest achievements as president — at least as was visible to the electorate when they ran for reelection — came in foreign policy. For Carter, it was the Camp David Accords, normalized relations with China, and the passage of the Panama Canal treaties despite fierce domestic political opposition. Some other elements of his record look better with the hindsight afforded by history, especially on energy and climate. But that wouldn’t have been clear to voters in 1980.
Similarly, Bush was in many ways a great foreign policy president. He masterfully presided over the dissolution of the Soviet Union, and the peaceful reunification of Germany — monumental achievements. And when Saddam Hussein tested the limits of what the post-Cold War world order would allow, Bush knit together a broad international coalition and got congressional approval to enforce his resolute vow that “This will not stand, this aggression against Kuwait.” Bush then presided over a wildly successful military campaign that proved wars of aggression for territory weren’t going to be allowed by the world’s preeminent super power — though one can argue that Bush erred in some of what he let Hussein do to hold onto power at the end of the war.
For both Bush and Carter, these foreign policy achievements weren’t enough to secure a second term. These achievements, in fact, may actually have hurt them with some voters, making it appear as if the presidents weren’t sufficiently focused on the bread and butter issues that animate most voters.
Flash forward to 2023. If you’re looking for clues as to Joe Biden’s fate, there is a positive sign in this history. His achievements aren’t primarily in foreign policy. He’s handled the Russian invasion of Ukraine exceedingly well. He’s also restored America’s alliances, and I think overall, struck the right balance with China. But he’s also had some foreign policy blunders, from the messy withdrawal from Afghanistan to his handling of Saudi Arabia. Overall, I’d call it a solid B or B+ record, nothing to write home about, but not disastrous.
Yet, Biden has shined far more on the domestic policy side of the presidency. From passage of the Inflation Reduction Act, with its countless provisions to further green energy, combat climate change, lower prescription drug prices, and more, to a massive, overdue bipartisan infrastructure bill, to the first new gun control measures in decades, to legislation designed to spur domestic semiconductor production (an unsexy, but hugely important, economic and national security measure), Biden has compiled a serious, significant record on which to run for a second term. If he can manage the debt ceiling situation and even achieve a few smaller wins under divided government, it will be a truly standout record to take to the voters in 2024…
The left and DC statehood advocates are furious at Biden for pledging to sign a resolution overturning a new DC criminal code that reduced penalties for violent crimes like carjacking.
But here’s the truth: this is just smart politics on multiple levels.
I support DC Statehood and self rule, but so long as Congress has the power to overturn policies enacted by DC’s government, the equation for members of Congress is something like this: how would their constituents — not DC residents — feel about the policy? It may not be fair, but it’s reality.
Which explains why 31 Democrats voted for the resolution in the House. Voting against it would have opened them up to charges that they are weak on crime. Sure, they could explain they voted that way, because they believe in home rule, not because they support the underlying policy. But guess what? When you’re stuck explaining in politics, you’re in trouble. And at a time when Americans are concerned about violent crime, lowering penalties for crimes like carjacking promises to be massively unpopular outside of the most liberal enclaves.
Okay, you might say, that explains Democrats in Congress, but what about Biden? After all, DC does have electoral votes. But Biden isn’t losing DC’s electoral votes. No how, no way. Any of his Republican opponents would’ve signed the resolution as well — and would be happy to override DC voters on lots of other things as well. And the president faces two calculations: had he vetoed the bill, it would have opened him up to charges of being weak on crime. It also would’ve set up an untenable situation in which Democrats in Congress either voted to sustain the veto — which could have damaged them at home — or where they voted to override it and Biden would’ve looked weak.
Realistically, there was no way for Biden to stop this resolution without it hurting himself and his party politically. Whereas, the political damage for supporting the resolution will be 0, and in fact, Biden’s move helps establish that while Democrats support policing reform and criminal justice reform, that doesn’t mean they are weak on violent crime. Realistically, the DC Council should have listened to Democratic Mayor Muriel Bowser when she vetoed the new criminal code and amended the most objectionable provisions instead of overriding her veto. They know Congress has the power to disapprove of measures they pass, and such resolutions aren’t something Democrats have the procedural power to bottle up without a vote. They did this to themselves by enacting a woefully unpopular policy.
In so much as Biden erred here, it was in sending the signal to House Democrats that he would veto the resolution, thereby compelling some of them to vote against it, which could be politically damaging. Had he back channeled to them that he wouldn’t push for Congress to overturn the criminal code, but also wouldn’t veto a resolution to do so, many more House Democrats might’ve voted yes. It’s unclear, however, whether Biden’s decision to sign the resolution is a byproduct of Senate Democratic leaders’ whip count on the measure. On Friday, liberal Democratic Sen. Patty Murray announced she’d support the resolution, indicating that the vote in favor in the Senate will be overwhelming.
Realistically, the left needs to understand that sometimes politics is a long game in which you concede on a skirmish because it better positions you to retain power, which you can use to do far more good…
A few notes on the Supreme Court’s blockbuster oral arguments on Tuesday over Biden’s student loan forgiveness program. First it was not surprising to see the conservative justices deeply skeptical of the program. Even a lot of liberals weren’t sure that the administration really had the power to enact this sort of student loan relief without some legislation from Congress. I myself really dislike government by executive order and was initially skeptical of Biden’s power to enact the program. The more I looked at the text of the statute, however, the more I thought that Congress had unwittingly given presidents a lot more power than they intended to through a poorly drafted statute — one that placed no limits on executive discretion to change the terms of loans.
But the hope for the administration has always been over the question of standing — could any of the people or states suing actually prove some real, tangible specific injury from the program? Without standing, you can’t file this kind of lawsuit in the United States. The Supreme Court doesn’t just provide advisory opinions and you can’t just say “yo, SCOTUS, is this law constitutional?”
Which brings me to my next point: Justice Brett Kavanaugh unwittingly highlighted why standing and the proof of an injury is so important in this case. He observed, ‘“Some of the biggest mistakes in the Court’s history were deferring to assertions of executive emergency power. Some of the finest moments in the Court’s history were pushing back against presidential assertions of emergency power.”’ He was talking about President Harry S. Truman trying to seize the steel mills in 1952 and the Court blocking him.
Reporters Josh Gerstein and Michael Stratford in Politico mentioned the infamous case of Korematsu v. U.S., where the Supreme Court upheld internment of Japanese Americans, as a case that fell into Kavanaugh’s first basket — one in which the Court deferred to the executive during a national emergency with shameful results.
BUT there is a massive difference between the Biden student loan program and these sorts of cases — or some of those after 9/11 referenced by Kavanuagh. In each of the examples from the past, you could clearly articulate a party who was hurt by the action. People taken from their homes and thrown into internment camps, people whose businesses have been seized by the government and who lost control over those businesses, someone who didn’t receive due process before being incarcerated, etc.
In the case of student loan relief, it’s not clear that any particular individual faces such a harm. Sure, taxpayers as a whole have to pay for the program, but generalized costs don’t get you standing.
I also found it less than compelling how some of the conservative justices claimed they had to protect congressional power and ensure that the executive didn’t encroach upon it. Because the reality is if Congress wanted to stop the student loan relief, it very easily could have. It clearly has the power to do so.
But it didn’t, for the same reason that it hasn’t done anything about student loan debt more broadly: the parties are deeply divided on the issue, and Democrats themselves aren’t even unified. That means securing 60 votes in the Senate on any plan to deal with the situation is almost impossible. It’s why the president felt compelled to make a legally questionable move like this.
The program is a symptom of broken, dysfunctional government, not executive overreach. Governing this way is bad — and certainly not how our system is intended to work — but the Court won’t fix it by simply narrowing executive power. That will merely ensure that no part of government can address crucially important issues, because the Senate filibuster and deep polarization are a recipe for gridlock on everything from student loans to immigration.
My guess is the Court rules Biden didn’t have the power to forgive loans. The conservative justices might say he had the theoretical power to modify the terms in more circumscribed ways, but there is a catch that prevents him from doing anything smaller. The statue specifically gives the president the right to act in a national emergency and the national emergency surrounding the covid pandemic is scheduled to end on May 11 — before the Court is likely to rule.
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