DIVORCE AND REMARRIAGE REPUBLICAN STYLE

Well, that was a mess.

On October 3, 2023, House Republicans voted to oust Rep. Kevin McCarthy (D. Ca.) as Speaker and yesterday -- three failed nominees, Hamas's barbarism, Ukraine's continuing fight, twenty-two days of House paralysis and a looming (yet again) government shutdown later -- they finally found a replacement.

He is Mike Johnson, a 51-year-old, Louisiana backbencher in his third term.  

In his brief career as a Congressman, Rep. Johnson's chief accomplishment has been to write an amicus brief supporting Texas's demand that the Supreme Court stop Congress from counting the electoral votes in four states Joe Biden won in the last presidential election.  The suit was filed on December 2, 2020. Johnson moved for leave to file his brief on December 10. The Supreme Court dismissed the entire case on December 11.

On the day he made his motion, Johnson posted a tweet. It said he was "proud to lead over 100 of [his] colleagues in filing an amicus brief to express our concern with the integrity of the 2020 election." Whatever may have been the source of his pride, however, it could not have been the filing of the brief.  

Because the Supreme Court never accepted it.  

Rather, it just denied Texas's petition the next day and then dismissed all pending motions, including Johnson's, as moot.

For Johnson, this was probably all to the good.

In his life before Congress, he fashioned himself an expert on constitutional law.

Constitutional lawyers, however, have not expressed much admiration.

His amicus brief claimed that Pennsylvania, Georgia, Michigan and Wisconsin had each violated the Constitution by modifying their election procedures in advance of the 2020 presidential vote without those modifications having been first specifically approved by each state's legislature. The criticized measures were designed to facilitate voting during the pandemic and included things like increasing the number of absentee ballots distributed, increasing the number of drop boxes where ballots could be deposited, and beginning to process returned absentee ballots early rather than waiting to do so after the polls closed on election day.  All these measures were undertaken by state administrators or executives in compliance with state law and the vast majority had been passed on by state courts. But Johnson's (unaccepted) brief said they were all unconstitutional because the various state legislatures had not specifically authorized them.

Johnson's argument was a version of what is known as the "independent state legislature theory".  Under that theory, no governmental entity other than a state legislature can create or modify any electoral rules where the Constitution has given state legislatures the power to set those rules. So, no one other than a state legislature can set the rules on how its electors to the Electoral College are chosen because the Constitution (in Article II, Section 1, Clause 2) states that the appointment of those electors shall be done "in such manner as the Legislature directs".

Last June, in Moore v. Harper, the Supreme Court rejected a different version of the independent state legislature theory.  In that case, legislators in North Carolina sought to overturn a decision of its state Supreme Court that threw out Congressional maps on the ground that they violated the state's constitution.  The legislators claimed that the North Carolina Supreme Court had no right to do so because Article I, Section 4 of the federal Constitution provides that the "manner of holding elections for . . . Representatives . . . shall be prescribed in each State by the Legislature thereof".  The Supreme Court rejected that claim, holding that "The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review."

The Court in Moore was not presented with the precise issue raised in Johnson's amicus brief. 

But it more than suggests that Johnson's argument was baseless. 

In Moore, the Court made clear that legislatures do not exist in legal vacuums.  They are subject to state judicial review.  They are also  creatures of the various state constitutions that created them and their powers can be as expansive or as limited as those constitutions permit.  

The measures Johnson assailed were either approved pursuant to the laws of each of the states that issued them, expressly complied with those laws, or had not been pursued in the first place (i.e.,the states did not do what he or Texas said they did). And because the legislatures in those states could delegate their authority to administrative agencies or executive officers consistent with their respective state constitutions, the federal Constitution no more forbids that as a consequence of the Article II, Section 1, Clause 2's Electoral College Clause than it does judicial review as a consequence of Article I, Section 4's Elections Clause. Pennsylvania, Georgia, Michigan and Wisconsin did choose their Electors in the "manner" their legislatures provided.  They did so because that manner included the administrative and executive authority needed to modify election procedures in the face of a world-wide pandemic.

Johnson's legal argument was a non-starter.  

It is, however, now serving a different purpose for Republicans.

As the past year and certainly the past month has demonstrated, the GOP is a party at war  with itself.  There is a populist Trump faction that has given up on government and turned the Congress into a performance venue, an overlapping extremist wing now complaining about deficits they routinely ignored during the Trump years, institutionalists who want to see Congress work and keep the government's doors open, and moderates and those elected from districts Biden won who view their political survival at risk given current behavior.

In this dysfunctional environment, however, Mike Johnson became the first person in a month to receive the votes of all 220 Republicans in the race for Speaker.  He thus did what Kevin McCarthy, Steve Scalise and Tom Emmer, all members of the recent GOP leadership team, and Jim Jordan, the loud-mouthed MAGA performance artist par excellence,  could not do.  

He united them.

How was he able to do that?

Unlike Trump and his over-the-top allies, Johnson is not a bomb thrower.  When he was asked yesterday about his efforts to overturn the 2020 presidential election, he smiled and said "Next question."  His affect is that he did not claim invented votes or Venezuelan computer hacking or any of the nutty extremes that came out of the mouths of Giuliani, Sidney Powell, Jenna Ellis, the cable channel enablers or the Matt Gaetzes and the Jim Jordans. His beef, he says, is that we did not respect constitutional process. 

Given his demeanor (and his amicus brief), Johnson is a safe harbor for Republicans trying to skirt the downside of election denial.  A legal argument based on a claimed violation of the Constitution is not the equivalent of either the insurrection that ransacked the Capitol or the outrageous and sometimes bizarre lies told by the nutty extremists.  

So . . .

The moderates who refused to elect a Speaker who was an election denialist think Johnson qualifies because he can be cast as  a constitutionalist, and the bomb throwers who claim Trump won think he qualifies because he filed a brief to stop Congress from counting the electoral votes in four states that put Biden over the top.  

Of course, the constitutional process Johnson would have us respect was not violated.  Pennsylvania, Georgia, Michigan and Wisconsin did not unconstitutionally rig the rules.  They followed them.  And Johnson's  calm demeanor cannot turn a bogus claim into a good one. 

Or an insurrectionist into a constitutionalist.

The only remaining question is whether it can turn an extremist into an institutionalist.

Because Mike Johnson is an extremist.  

He is flat out against additional aid to Ukraine.  

He is  anti-choice. He co-sponsored a federal fetal heartbeat bill that would have outlawed abortion at six weeks and an amendment to the defense appropriations bill that would have stopped the Pentagon from reimbursing travel expenses incurred by those who have to go out-of-state to obtain abortions. 

He sponsored a national "Don't Say LGBTQ+" bill.  For more than a decade, he worked for the Alliance Defending Freedom (ADF), an anti-LGBTQ+ organization the Southern Poverty Law Center calls a hate group.  While at ADF, he claimed that "the homosexual lifestyle" is "morally wrong and physically dangerous".  He opposes any gender-affirming care.  He also opposes gay marriage.

He voted against last year's Inflation Reduction Act and the CHIPS and Science Act. He regularly parrots claims from the fossil fuel industry that belie climate change. 

To combat the deficit, he wants to impose new restrictions on the Supplemental Nutrition Assistance Program but opposes tax increases and would make Trump's tax cuts permanent.

It doesn't get any more extreme than all that.

But . . .

He does not want to shut the government down and has proposed a continuing resolution that would keep the doors open until either January 15, 2024 or April 15, 2024 depending on the views of his caucus.

And with the current GOP . . .

It won't get any more institutional than that.

The question is how much runway his colleagues will give him. The moderates who voted for him don't want the government closed or the House paralyzed by ongoing leadership feuds with the Speaker.  The bomb throwers, however, say Johnson's rise means, as Matt Gaetz put it, "MAGA is ascendant".  If so . . .

The runway will be very short.

QUESTIONS

I am by no means an expert on the middle east.  

I have read a lot but never visited. 

I have watched governments on all sides of the divide parry and thrust.  

I have also watched as apparent progress became obvious failure. 

As extremists assumed power and poured fuel on ancient fires.

As the peacemakers were . . .

If not out-numbered then at least out-maneuvered . . .

By the war-mongers.

So . . .

I have no answers.

But . . . 

Maybe this is not the time for answers.

Maybe this is the time for questions.

Here are mine.

Under what circumstances can it ever be acceptable for combatants to intentionally kill innocent civilians?

The old? 

The sick? 

Children? 

Babies? 

Concert goers? 

Folks waiting for a bus?

Or just driving home?

Under what circumstances can it ever be acceptable for combatants to take civilians hostage?  

To turn them into prisoners of war? 

Or human shields?

To refuse to release them?

To torture them?

Or to torture their relatives by holding them?

Under what circumstances can it ever be acceptable to endorse terrorism as an acceptable response to otherwise legitimate grievances or complaints?

Or to pretend that terrorists are freedom fighters?

Or that there is no difference?

Under what circumstances can it ever be acceptable for terrorists, or anyone else, to practice and preach the obliteration and dissolution of a people whose religion is not their own?

Or of any people?

Or of any race?

Under what circumstances can it ever be acceptable to endorse this era's Holocaust?

Or to deny that it is?

Or that Hitler's was?

And . . .

Under what circumstances can the answer to any of these questions be anything but . . .

Never?

FEEDING THE BEAST

Over the course of the last seven years, America has witnessed a parade of firsts.  

Last year, a former President was criminally indicted for the first time in American history.  

Over the course of that year, he became the first President to be criminally indicted a second, third and fourth time as well. 

In January 2021, again for the first time, a group of angry partisans, many armed, stormed and ransacked the US Capitol. They forced Representative, Senators and the Vice-President to run for their lives and stopped Congress from counting the electoral votes that would formalize the election of Joe Biden as president.  In that same month, again for the first time, the President who encouraged that attack -- and waited hours before even attempting to stop it -- was impeached .  

Not to be outdone, this was also the first time anyone had ever been impeached . . . 

Twice.

Yesterday, the House of Representatives voted to oust the Speaker of the House.

This too has never before happened. 

Not in the early years of the republic when the government's Constitutional foundations were uncertain. Not in the previous forty-two years of essentially divided government. Not even in the twenty-year run-up to the Civil War when the nation was coming apart at the seams.

There is a common thread to all these firsts.

The political party that birthed them gave up governing long ago. 

In its place, the party has made grievance and anger its only unassailable basis.  

The final vote to oust McCarthy was 216-210.  There are currently 433 members of the House of Representatives, two less than the mandated 435 because those seats are vacant.  Of that group, 426 were present yesterday; seven were absent (including Nancy Pelosi, who was in California attending Diane Feinstein's funeral). To avoid ouster, McCarthy had to convince 214 of them to vote against the motion to fire him.  

He fell four votes short.

McCarthy and his GOP caucus supporters should not have been surprised by this outcome.  

Eight Republicans voted to oust him.  Two of them (Representatives Burchette and Mace) offered unique reasons -- the former said McCarthy had insulted his religious beliefs and the latter claimed he had not honored agreements with her. The other six, however, claimed to oppose McCarthy because he had permitted a vote on last week's Continuing Resolution allowing the government to remain open for forty-five more days. That vote passed only because Democrats supported it (90 Republicans voted against it) and those six thought McCarthy should have shut down  the government to force the Senate into accepting draconian budget cuts at odds with the debt ceiling deal everyone had agreed to three weeks ago and to which even Senate Republicans had recommitted. 

That Gang of Eight is an interesting group.  

Seven of them (Representatives Biggs, Buck, Burchette, Crane, Gaetz, Good and Rosendale) claimed Donald Trump won the presidency in 2020 and six voted to object to the electoral count when Congress resumed its session hours after the January 6, 2021 carnage.  (Representative Crane was not in Congress on January 6 2021; he was elected in 2022; he has, however, claimed Trump won.) They are diehards.  Only Representative Mace stands outside this group.

With the diehards, facts do not matter.    

It does not matter to them that Trump lost in 2020.  

Or that the election was functionally fraud-free.  

Or that courts had rejected any claims to the contrary. 

Or that those same courts had approved all the voting rules that governed the election. 

Or that their president stoked a riot to overturn that election and silently cheered as his violent followers ransacked the seat of government in an attempt to do so.

It also does not matter to them that Democrats control the Senate, have 212 seats in the House, and would never agree to the diehards' budgetary demands.  

A normal politician would have cut a deal, gone  home, and lived to fight another day.

Yesterday's diehards, however,  are not normal.

But they do have power.

And they have that because power abhors a vacuum.

For years the GOP pretended to be the party that would rein in spending by cutting debt and deficits.  But when it actually controlled both the White House and Congress, during both the Bush II and Trump administrations, the deficit exploded. 

For years, the GOP also advanced a muscular foreign policy that supported NATO and the rules-based international order that preserved Europe's peace since 1945.  As soon, however, as Russia's Vladimir Putin, an ex-KGB spy who counts the demise of the Soviet Union as history's greatest tragedy, illegally invaded Ukraine in an attempt to eliminate that country, and then committed war crimes for which he has been indicted by the International Criminal Court,  the GOP fractured.  Last week, it removed aid to Ukraine from the Continuing Resolution that kept the government opened.

For years, it also claimed that the rules on abortion should be made by the states.  But once the Supreme Court created that reality, and citizens in states the GOP controlled actually opposed the Court's decision and began protecting abortion rights, it tried to curtail those efforts and demanded federal legislation banning abortions. 

This is the policy vacuum the GOP has created.   

In its place has come MAGA denial and outrage.

This is also the world that Kevin McCarthy sought to but could not govern.

It was not for lack of trying. 

In fact, and to the contrary, McCarthy did everything he could to appease those who opposed him.  

He gave them the right to move to oust him on the motion of one member.  He gave them important seats on the Rules and Appropriations committees and thus an outsized role on what could come up for a vote and how much spending the House would allow. He approved a (baseless) impeachment inquiry against President Biden that his conference generally opposed but the diehards demanded. He tried last week until the eleventh hour to fashion a stop-gap spending bill his conference would support that could then be given to the Senate for negotiation prior to last week's September 30 deadline and likely shut down.  Before doing so, he also made clear to the diehards that he was willing to violate the spending deal he cut with Democrats and the administration three weeks ago, having advanced at least three appropriations bills that did so. 

But they opposed all of that too.

When it was over, McCarthy held a press conference announcing he would not run for Speaker when the House resumes next week.  He then blamed Nancy Pelosi for his loss. According to him, Pelosi told him last January to give the diehards the right to oust him on the motion of one member because she would back him if they ever tried to do it. As noted, Pelosi was not in Washington yesterday, nor is it clear what "backing" McCarthy would have meant had she been there.  Pelosi herself did not vote to oust McCarthy and she is also no longer the leader of the Democrats (who as a whole decided not to back McCarthy earlier in the day).  

It is not the job of Democrats to elect or preserve Republican Speakers.  

And even if it were, had McCarthy wanted their support, he could have asked for it. 

Had he done so, he would have had to promise them something in return.  

He did neither.  

He did not even try.

But had he tried . . .

The diehards would have crucified him for that  as well.

Caring not a whit about deficits or allies or even states' rights, all of which they abandoned in one form or another over the course of the last two decades, and caring also not a whit about rudimentary truth or the rule of law, both of which they abandoned in their embrace of Trump and the refusal to hold him responsible for January 6, the GOP is now  controlled by the beast that is MAGA and its angry zealots.  

At the close of yesterday's proceedings, the new Acting Speaker of the House, North Carolina Republican Patrick McHenry, gaveled the House to recess. McHenry's only power as Acting Speaker is to call the House back into session to select a new Speaker. As of now, that appears to be scheduled for no earlier than next Wednesday. Until that is done, the House cannot pass any legislation, and absent new legislation authorizing funding, the government will shut down forty-four days from today. 

Every day without a Speaker runs a day off that clock.   

Because the diehards do not have the votes they need  to get the spending cuts they demand, and are controlled by those who think compromise is a capital crime, the GOP will feed the MAGA beast by running that clock out as long as possible to force another eleventh hour confrontation. For the past eight months Kevin McCarthy fed that beast.

Yesterday . . .

It swallowed him.  

Its next victim may be the country.