Has Trump Created a Death Cult?

President Trump has given up combating the pandemic. So has Vice President Mike Pence, both of them holding superspreader rallies around the country, with Trump every time telling his audiences “We’re rounding the corner” when each day’s new COVID-19 cases — 84,000 on the day before this is written — set new records for the U.S. “We’re not going to control the pandemic”, Trump’s chief of staff
Trump airport rally

Mark Meadows just admitted, when questioned about a second White House outbreak, “because it is a contagious virus — just like the flu”.

Actually, the president gave up long ago. The days when he decided it best to take an active role, holding late afternoon televised briefings with Drs. Fauci and Birx alongside, are long gone. Even then, less concerned for the nation’s health than the plunging economy on which he was counting for re-election, he was contradicting his experts, tweeting “LIBERATE MICHIGAN” and Minnesota and Virginia, in a rush to lift the lockdown.

When did Trump call it quits? The rally he held in Tulsa on June 20 — an indoor event with spacing guides ripped off seats and few masks in view — serves as good as any as the turning point when Trump discarded the standard “mitigation” protocols urged by his task force of experts. The president had never set the example of wearing a mask (“Somehow, I don’t see it for myself”) and thereafter switched emphasis to “warp speed” vaccine development.
More public events followed Tulsa: five rallies in August, his celebration of his re-nomination August 27th before a closely-seated, mask-free assemblage at night on the South Lawn of the White House, 15 rallies in September, the gathering in the White House Rose Garden September 26th to announce Judge Barrett’s Supreme Court nomination with guests packed tightly in folding chairs and again barely a mask in sight, and daily rallies in October beginning on the 12th once the president had recovered from his own bout with COVID-19.

By one count 27 cases of the disease had engulfed the White House, a dozen from having attended the Rose Garden event. Since then, five aides and advisers to Pence, who chairs the coronavirus task force, it is fair to point out, have tested positive. Summed up by book author Anand Giridharadas better than we can:

“He hosted a super-spreader event to honor a justice who would have the government control your body but refuse the duty to care for it, and when the virus he helped go around came around, he availed of the healthcare he would deny others, financed by the taxes he refuses to pay”.

the plan is: no plan

In August, the president brought into the White House Dr. Scott Atlas as his science adviser. Although a neuroradiologist, with no experience with respiratory diseases, he was not shy about promoting a different policy for dealing with the virus. He was taken with the theory of “herd immunity” and in mid-October, it was presumably he who brought to the White House to meet with Health and Human Services Secretary Alex Azar three epidemiologists who had written a document espousing that radical strategy.

The idea is just what the doctor didn’t order, but it handily rationalizes the caution thrown to the winds policy that Trump and his retinue have been following for months. The manifesto advises that, while older members of the population should be protected, COVID-19 should be allowed to roam freely among the younger generations who are less seriously affected by the illness until herd immunity is reached. That would inhibit the virus from spreading and allow restoration of the vibrant economy that the pandemic has so damaged. In a briefing for reporters, a senior administration official said about the strategy, “We’re not endorsing a plan. The plan is endorsing what the president’s policy has been for months.”

The trio of scientists certainly have the requisite credentials — Martin Kulldorff, an epidemiologist at Harvard University; Sunetra Gupta, an epidemiologist at the University of Oxford; Jay Bhattacharya a physician and epidemiologist at Stanford Medical School. Azar subsequently tweeted, “We heard strong reinforcement of the Trump Administration’s strategy of aggressively protecting the vulnerable while opening schools and the workplace.” Dr. Atlas seems to have won the day.

The document, which argues against lockdowns and for reopening businesses and schools, is called “The Great Barrington Declaration” after a town in western Massachusetts where it was presented under the auspices of the American Institute for Economic Research, a libertarian-leaning research organization located there. It makes no mention of wearing masks, distancing, crowd avoidance, nor any other of the preventives urged for months by scientists and medical professionals. It offers no footnotes nor data traditional to scientific documents. Yet, the website, where the document is posted (in 29 languages), asks for your endorsement and posts, when last we looked, a running count of over 500,000 (using their terms) concerned citizens, over 10,000 medical and public health scientists, and over 28,000 medical practitioners who have signed on.

The declaration claims that herd immunity can be achieved when as little as 10% to 20% of a population has been infected and carries antibodies, a proposition which the mainstream community finds preposterous. Francis Collins, who heads the National Institutes of Health, calls the theory “fringe” and “dangerous”. Fauci called it “ridiculous”. Others interviewed in the Times and Post stories used similar words. The head of the World Health Organization called it “unethical”. It “is just nonsense,” said Dr. Christopher Murray, director of the University of Washington’s Institute for Health Metrics and Evaluation, which produces the widely-cited epidemic model that the White House itself has used in its briefings. A recipe for “carnage” tweeted Gregg Gonsalves, an epidemiologist at the Yale School of Public Health.

Think of vaccines. The standard threshold for herd immunity is at least 60% and more usually 70% of the population having had a disease. At that level of vaccine immunization a disease does not spread. The point is that there must be a high enough proportion of persons in any cluster, gathering, or crowd to cause a virus to have difficulty finding someone with no antibody defenses. It is thwarted from finding a host because the immune systems of enough people have developed antibodies — virus attackers — from having experienced and overcome the disease.

But with only 10% to 20% having been infected, a virus can easily find targets. In the U.S., the over almost nine million who have tested positive for COVID-19 are less than 3% of the population. The number of carriers is assumed to be much higher because of shortfalls in testing — possibly 10% the CDC (Center for Disease Control and Prevention) thinks likely (that is, if the CDC can still be trusted as a scientific organization after being so compromised by Trump administration interference), but any adjusted percentage is far below a conceivable herd immunity threshold.

The Washington Post did an analysis that showed that for the United States, with a population of 328 million, to reach a 65% herd immunity threshold could lead to 2.13 million deaths. This was the pandemic approach in Sweden, which did not turn out well, and it appears now to be the avoidist policy of the Trump White House.

The theory has many other faults. How would older people be protected, as the Great Barrington document blithely assumes? How would the young freely contract the disease without coming into contact with the vulnerable older generations, starting with parents and co-workers? Further, we do not know how long immunity lasts; it is likely to vary depending on how strong a dose of the virus an individual has received. There are already cases of persons becoming re-infected: a A 25-year-old man in Nevada, an 89-year-old woman in the Netherlands who contracted COVID-19 a second time and died. Several others around the world.

How could the nation’s hospitals possibly deal with the onslaught of cases if the disease were allowed to run wild? Does this administration care at all for the safety — both physical and mental — of the nation’s doctors, nurses, and hospital staff? Are they yet another cohort that Trump views as “losers” and “suckers” expected by him to just deal with it and go on doing their jobs? Not a thought seems to have been given to the chaos at hospitals across the nation that abandonment of public health measures will bring.

Ripping of his mask on a White House balcony as he returned from Water Reed Medical Center, Trump told his supporters, “Don’t be afraid of it… I felt great, like better than I have in a long time… better than 20 years ago”, as if to encourage them to do their part — get out there, get sick, and do your patriotic thing to create herd immunity. “Mr. Trump’s statement was meant to cast his illness as an act of courage rather than the predictable outcome of recklessness”, wrote reporters who covered the moment. Here’s what he is telling his rally audiences (the syntax is his):

“A safe vaccine is coming very quickly. You’re going to have it momentarily that eradicates the virus and we’re rounding the turn regardless. You know that. We’ve got the vaccine. I say regardless and they say ‘Well maybe you don’t’. We have it. Great companies. And quickly ends the pandemic.”

With cases spiking higher than ever just as public officials had forecast with the coming of cold weather, the

opposite is true. Cases in over half the states are surging, midwestern cities and states are reporting that their ICUs are already filled to capacity, there will be no proven vaccine “momentarily”, and its manufacture and delivery to millions will take us deep into 2021. Yet with only votes in mind, Trump has no morals to prevent him from dreadfully misleading his crowds.

Trump loyalists are not told this on Fox News. Instead we have Laura Ingraham touting herd immunity and Tucker Carlson with an essay on masks: “What kind of person covers his face in public? Let’s see, armed robbers do that…So do Klansmen and radical Wahhabists”, etc.

“By our nature, we want to see each other. We need to see each other. Looking at another person’s face is the beginning of connection. Eliminating that connection dehumanizes us.”

Take your masks off, everyone. Get with the herd.

the devoted

Who are these people who go to Trump rallies, these superspreaders? Why are they attracted to events where they are jammed together at risk of contracting a disease that can result in the horrible death undergone by at this writing 226,000, dying helplessly, gasping for air in the final throes of asphyxiation from this disease? A disease that for its survivors can potentially mean months of debilitation called “long covid”; possibly permanent damage to lungs, heart and other organs; a “brain fog” that brings about a mix of short term memory loss and difficulty doing even simple tasks?

Instead, they listen to Donald Trump. “Don’t let it dominate you!”, he intoned. “You’re gonna beat it. We have the best medical equipment. We have the best medicines”. He had, but his fans at the rallies must know that they won’t be treated by a platoon of doctors administering one drug of limited supply and another still experimental and not available at all.

Before taking ill, Trump was not fearful of contracting COVID because he was “on stage so I’m very far away” from the crowds he draws to his rallies. For him they are expendable. During shutdown when Trump could hold no rallies, Olivia Troye, a former adviser to Pence, quoted Trump saying in a corona task force meeting that one benefit of the pandemic was “I don’t have to shake hands with these disgusting people”. Troye said, ““It was clear immediately that he wanted nothing to do with them.”

What makes people follow Trump as their leader, flocking to the daily super-spreader rallies as he hopscotches the country concerned only for re-election. Whether sitting in sports arenas or standing tightly packed at airports, thousands symbolically swear fealty to him not even wearing a mask, not knowing that they are the “losers” and “suckers” he abhors. How have these Americans been led so far from this democracy by no less than the president of the United States that they chant “Lock him up” about Joe Biden, with Trump joining in (“Lock them all up”)? How can this be explained as other than a cult? Add to that a plan to promote herd immunity and it becomes a death cult that would die in staggering numbers if enough of them are fool enough to follow him.

Oct 31 2020 | Posted in Healthcare | Read More »

Supreme Court About to Kill Obamacare at a Time Like This?

A week after the election, the Supreme Court will hear arguments why the Affordable Care Act should be struck down in its entirety versus why it is too important not to continue undisturbed. If the justices decide the former, the consequences will be calamitous.

Almost all of the 23 million people and families — roughly 11 million who bought insurance on federal and state exchanges, and 12 million who obtained coverage from Medicaid expansion — will lose coverage under the Act, and in the midst of the most severe health crisis in a century.

Millions more have, owing to the pandemic’s blow to the economy, lost jobs that provided employer-paid health insurance — 3 million so far estimates the Urban Institute and 12 million in total likely by year-end per Avalere Health. Many might

qualify for Obamacare’s subsidized insurance, but they too will add millions to the rolls of uninsured if the Supreme Court takes away that opportunity when it decides the case several months from now.

Gone as well will be the prohibition against denying coverage for reason of a pre-existing condition, as well as its companion rule that insurers cannot cancel policies when someone becomes ill. The popular provision of family plans covering sons and daughters until age 26 — some two million young adults according to the government — would also end.

laissez care

Republicans have been against the Affordable Care Act (ACA) from the outset, ideologically averse to yet another large-scale government program. No Republicans voted for it and the Party has voted without success to repeal all or parts of the Act more than sixty times. Key to the funding of Obamacare was the mandate that all adults must purchase health insurance else pay an escalating penalty each year. The right to penalize the non-compliant survived a challenge in National Federation of Independent Business v. Sebelius in 2012 when Chief Justice John Roberts joined the liberal wing in a 5-to-4 decision, writing in his opinion that the penalty was in reality a tax that Congress has the power to impose under the 16th Amendment.

trump card

In September Ruth Bader Ginsburg died after repeated health incidents, giving the president his third chance to name a Supreme Court Justice. With unseemly haste, and the complicity of Senate Majority Leader Mitch McConnell, the Trump administration pressed that the very conservative Amy Coney Barrett be accepted onto the court by the Senate before Election Day. To force the Senate to concentrate on confirming Barrett for the bench, Trump has even called a halt to negotiations for trillions in pandemic stimulus relief, causing financial hardship for millions and risking a severe depression.

The objective is for Judge Barrett to be on the court in time for the November 10th hearing. In 2017, she wrote an article for the Notre Dame law journal that disagreed with Chief Justice Roberts’ reason for upholding Obamacare in 2012. She also signed a petition that year protesting the law’s requirement that employers offer insurance plans that pay for contraception. Republicans and the Trump administration are confident that her addition will supply the insurmountable five votes against possible apostate Roberts should he be tempted to once again be a swing vote to keep Obamacare alive. He might be reluctant to see history remember his court as the one that obliterated the one attempt to install a healthcare system in place of the chaos that went before. If Judge Barrett is not on the bench to hear the arguments November 10th, then she cannot vote when the case is decided some months later.

For the record, if Barrett were ineligible and Roberts again decides to side with the liberal wing, the vote would be 4-to-4, which would leave the case in something of a limbo that will shortly be explained.

damaged goods

Obamacare has many flaws. It was an invention, after all, with intricate interlocking parts, yet launched with no trial runs. Insurance policies were overly comprehensive and therefore too costly. Age groups found they were paying for benefits irrelevant to their age bracket, such as the old paying for pediatric care. The young and healthy chose to pay penalties rather than buy into the insurance pool with resulting funding shortfalls causing premiums to more than double by 2017. It was thought that Congress would raise this and lower that as the public fed back what worked and what didn’t, the typical practice with complex legislation, but Republicans wanted the ACA to fail and blocked any repairs.

Most insurance companies suffered heavy losses at the outset — $1 billion for United Healthcare in 2016, for example. They could only guess at rates to charge to an unknown number of sign-ups with an unknown mix of medical conditions. Some of the biggest insurers dropped out. There were instances of “bare” counties where all insurers had withdrawn.

That has reversed, though, beginning a few years ago as companies developed the actuarial data for profitable pricing and 36 states enrolled in the federal Medicaid expansion program which most states pay insurance companies to run. “The individual market remains profitable and stable,” concludes the Kaiser Family Foundation in a recent analysis.

But the biggest headache for participants are the high deductibles, which can run to a bit over $8,000 for individuals and just over $16,000 for families. The subsidies help those with lower incomes to pay the premiums but they and those over the subsidy threshold find themselves paying for both medical costs and premiums, with the upshot that the popularity index for Obamacare has dropped below 50%. “We obviously made a huge mistake”, heath policy adviser to the Obama White House, Ezekiel Emanuel, told The New York Times last March. “We were under a lot of pressure to keep the price under a trillion dollars. That was constraining everything we did, from the size of the subsidies to what type of care could have no co-pay.”

Of course, the root cause of high premiums and deductibles are the uncontrolled healthcare costs that in the U.S. run about twice those of other developed nations.

the case

In 2017, Republicans tackled onto the Tax Cuts and Jobs Act a proviso that the penalty for not buying insurance be reduced to $0. A Texas-led coalition of 18 states — all having Republican governors and state attorneys general — sued the government in 2018 with the argument that the effective elimination by Congress of the penalty rendered the entire law invalid. Judge Reed O’Connor of the Federal District Court in Fort Worth agreed, striking down the entire law as unconstitutional. He based his decision on the longstanding legal doctrine called “severability” which holds that excising of one part of a law invalidates the rest if the rest relies for its continuance on the part that was excised. O’Connor called the penalty — enacted under the Congress’s taxing power but now $0 — had been the “keystone” of the law. Its removal orphaned the mandate linked to that tax that requires people to buy insurance, which means the mandate is now an unconstitutional demand.

The Trump administration, at first supported stripping out only some parts of the law, but then changed to the conservatives’ position — and that of the Texas court — that Obamacare should be done away with altogether. The Trump administration took the extraordinary position of refusing to defend a U.S. law from the Republican states’ challenge and instead sided with them.

In December of last year a three-judge panel of the Fifth U.S. Circuit Court of Appeals in New Orleans agreed 2-to-1 with the Texas judge that the mandate to buy insurance was unconstitutional, but it sent the case back to Texas asking O’Connor to “conduct a more searching inquiry” into whether other parts of the law could be allowed to survive. The appeals court asked the judge to “employ a finer-toothed comb” in going over the almost 1,000-page law, pointedly saying about its many other provisions — Medicaid expansion, protection of persons with pre-existing conditions, and so forth — that “it is unclear how provisions like these…were intended to work ‘together’ with the individual mandate.” The two judges in the majority even took the Texas jurist to task in their opinion with…

“It may still be that none of the A.C.A. is severable from the individual mandate, even after this inquiry is concluded. But it is no small thing for unelected, life-tenured judges to declare duly enacted legislation passed by the elected representatives of the American people unconstitutional.”

This January, 20 Democrat-led states led by California Attorney General Xavier Becerra petitioned the Supreme Court for expedited review of the appeals court ruling, arguing that healthcare and its insurance is too important for the matter to bounce back and forth between lesser courts and should be resolved.

In June, the Justice Department pressed its objective by submitting a brief to the Court asking it to overturn the Affordable Care Act entirely, declaring, “The individual mandate is not severable from the rest of the Act” and pointedly arguing that Obamacare’s pre-existing condition rules must be overturned as well.

That brings us to the November 10th hearing.

a possible out

The severability principle has a qualifier. It says that when a court (or presumably Congress) excises one provision of a statute, it should leave the rest of the law in place unless Congress explicitly stated that the statute could not survive without that provision. When defending Obamacare before the New Orleans appeals court in July of last year, the lawyers from the Democrat-governed states cited statements from members of Congress that they wanted the rest of the law to remain intact. In December, upon the appellate court’s 2-to-1 agreement with the Texas court, Senator Lamar Alexander (R-Tenn) said in a statement, “I am not aware of a single senator who said they were voting to repeal Obamacare when they voted to eliminate the individual mandate penalty” as part of the 2017 tax overhaul.

if the court overturns

But if the Supreme Court, with its cohort of five and possibly six conservatives justices, three of them having already voted to put an end to the ACA, decides to clean the slate and take down the entire law, what takes its place? The answer is: nothing.

Since before he took office in 2017, President Trump has promised a Republican healthcare plan to take the place of Obamacare, with tweets such as “FAR BETTER AND MUCH LESS EXPENSIVE”. At the time, he told The Washington Post he was nearly done with his plan, but almost four years later, he has never put forth any ideas of how it would work, and no plan is in evidence. Nor has Congress drafted any legislation to bring to reality Republican musings about federal and state funded high risk pools meant to spare insurers the cost of taking on patients with serious conditions.

The only remnant of Obamacare would be Mr. Trump’s repeated assurance — said some one hundred times by one count — that insurance availability for those with pre-existing conditions will be preserved. “We will always and very strongly protect patients with pre-existing conditions. And that is a pledge from the entire Republican Party”, he said in his nomination acceptance speech in August. Trump tweeted himself as “the person who saved pre-existing conditions”, while at the same time bidding the Supreme Court to terminate the very law that protects those with pre-existing conditions.

As far back as December 2018, Trump said he might sign an executive order requiring insurers to accept applicants with health conditions, saying it “has never been done before” as if unaware that this is one of Obamacare’s premier features. He only went through with signing an order weeks before the election in an attempt to stem the threat of lost votes. There is no mention of safeguarding the rule that forbids insurers from dropping claimants who experienced illness and cost insurers reimbursement.

An executive order would be toothless if the ACA is eliminated. It does not have the force of legislation, yet Trump has 84% of Republicans believing he has the better approach for “maintaining protections for people with pre-existing conditions”, according to the Kaiser Family Foundation. That organization estimated last year that 54 million people have conditions (e.g., high blood pressure, asthma, even acne) that, according to guidelines insurers followed to screen applicants in the years before Obamacare, would disqualify them from obtaining insurance. Add to that pool the seven million, so far, who have tested positive for COVID-19 — the newest pre-existing condition.

if it’s broke, fix it

Although his progressive wing dreams of Medicare for All, Joe Biden wants to repair and shore up Obamacare. One thing he wants is to add what is called the public option, a federally-operated exchange to provide competition to commercial insurers that was dropped from the original negotiations. Democrats want to increase the subsidies that help people pay for insurance as well make the program available to families earning more than 400% of the poverty level, which is the limit now.

In June, House Speaker Nancy Pelosi announced a bill that would expand subsidies so that no family would pay more than 8.5% of its income on health insurance, do away with the George W. Bush-era restriction that disallows Medicare negotiating drug prices, and offer further incentives to the 14 states that still have not opted for Medicaid expansion even though the government pays 100% for the first four years and 90% thereafter.

Now imagine the scenario in which Biden wins, the Supreme Court ends Obamacare, the Republicans retain the Senate, Mitch McConnell wins his race in Kentucky and is again elected majority leader, where he will block all Democratic legislation as he did when Barack Obama was president. Nothing will go forward. We will again have no health care “system” at all, but anarchy, where the public will be at the mercy of an insurance industry that enrolls only the healthy, and the pharmaceutical industry is free to set prices that the sick cannot afford.

Here’s What’s Coming at Us
    in the Election from Hell

Well before midnight on November 3rd, Donald J. Trump will declare victory. Votes from the high percentage of Republicans who went to the polls will have put the president in the lead at that hour. Votes by Democrats, a high percentage of them mailed in, will have as yet barely been counted.

Trump will be following his rule. By end July he began insisting that the winner be declared on election night. “Must know Election results on the night of the Election, not days, months, or even years later!”, he tweeted. He had inserted himself into the Florida primary to say,
Voters on a gym floor

with no evidence, “[M]any ballots are missing or forged. An honest vote count is no longer possible…Must go with Election Night!”.

That Democrats are forecast to be the biggest users of mailed ballots means totals for Democratic candidates are expected to rise in the days after November 3rd — the so-called “blue shift”. But Trump’s voter base will have embraced his claim of election night victory, just as his instant claim of “exonerated” displaced the facts of the Mueller report ahead of its release. They will rebel against ongoing changes in the vote count because the president has told them that mailed ballots are rife with fraud. FBI Director Christopher Wray says, “We certainly have seen very active efforts by the Russians to influence our elections” and the expectation is that they will flood social media with the same message — that Trump has already won on election night. Trump believers will have joined the Russians against the rest of America.

alternate facts

By now the public is very much aware of the president’s months-long tirade that calls voting by mail a “catastrophic disaster”, “INACCURATE AND FRAUDULENT”, “an easy way for foreign countries to enter the race”. He even managed to insert unsubstantiated claims of fraud into the first debate, with no objection from moderator Chris Wallace of Fox News. “There is tremendous evidence of fraud whenever you have mail-in ballots,” he says, contrary to the experience of states that for years have conducted elections solely by mail. He has raged against mail voting all year, tweeting that “there is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent.” Over the summer, he claimed that Nevada and Michigan had “illegally” sent absentee ballots to voters, and complained that “the 51 Million Ballots that are being sent to people who have not even requested them…are setting the table for a BIG MESS!”. But none of these were ballots. (The conventions had not even taken place yet.) They were only forms for requesting a ballot, once ready, and were sent only to registered voters. The first actual ballots were not sent out until mid-September, by North Carolina. Thus has Mr. Trump been working to undermine Americans’ confidence in the electoral process.

Fraud, which is vanishingly small, of course is not the reason. Trump cares not at all for fraud, knowing it is a fiction. The real reason is that the Republican Party has worked doggedly to hinder or prevent access to the polls by blocs that it perceives vote Democratic — blacks, Latinos, college students. And now, suddenly, along comes a threat to make it easier for them to vote by simply mailing in a ballot. Those extra votes from people who would have found it difficult or costly to get off work to go to a polling place would, for Trump, who thinks out loud and gives the plot away, cause “levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again”.

Coping

States are well aware of the dilemma they face. At greater risk from the pandemic, the older people who traditionally man the voting booths — 58% of poll workers are 61 or

older — are staying away. States saw that in the Wisconsin primary Milwaukee’s 180 polling places were reduced to five because poll workers were too fearful. States are trying to attract younger people to the job to prevent a disastrous meltdown at polling places.

To bypass what they fear will be a clogged postal system, states are positioning ballot drop-off boxes. In 2018 in Colorado, which votes nearly entirely by mail, 75% of ballots were returned to a drop box or at a polling place rather than mailed. But that goes against the Trump campaign which has sued states, fighting any steps that diminish in-person voting at poll sites. The campaign is working to enlist 50,000 volunteer poll watchers to catch “all the thieving and stealing and robbing they do”, said the president at a late-September rally, meaning Democrats. Donald Jr. has a television ad out asking for “every able-bodied man, woman to join the army for Trump’s election security operation. We need you to help us watch them”. Note the word “army”. We will be watching his army intimidate voters, especially in Black districts.

By August the Trump campaign and the Republican National Committee were involved in 40 lawsuits in 17 states, part of some 160 lawsuits filed by party organizations, campaigns, and interest groups across the country, “efforts to throw tacks in front of the tires to make it so states can’t run their elections”, as Michael Waldman, president of the Brennan Center for Justice, put it.

Out of overall turnout that could reach 150 million, somewhere north of 80 million ballots are expected to be cast by mail. Processing this quantity against voter rolls and comparing signatures will be slow, even though many states begin before Election Day — 14 days before the election in Arizona and 22 days in Florida, for example. So just how soon after November 3rd we will see various states reporting their counts is difficult to assess.

lighting the fuse

With his relentless inveighing against mailed ballots, Trump has been setting up the expectation of fraud, just as he constantly said in 2016 that a Democratic win would mean that election was “rigged”. As “blue shift” sets in, the president will unleash a tirade of ALL CAPS Twitter blasts from the Oval Office as the counts rise for Biden. His “base” will agree because Trump has been indoctrinating them with a steady cascade of misinformation. They will agree when he tells them it is “the most corrupt election in the history of our country, and we cannot let this happen”. He has already said that. The president has accused Democrats five times of “rigging” the election through mail-in voting. By staying away from the polling places and instead using the mail, Democrats will be “using COVID to defraud the American people, all of our people, of a fair and free election.”

But Democrats worry that a sizeable segment of the public, dismissive of “blue shift“ claims, will reject the growing Democratic count in the days after the election, as we posited above. “It may start to look as if, when an election goes into extra innings, one of the two teams is given extra at-bats,” wrote Edward Foley, an election expert at Ohio State University, and Charles Stewart, a political scientist at M.I.T. Here is where violence will break out. The Proud Boys, told by Mr. Trump to “Stand back and stand by”, will decide this is their moment.

detonation

Mr. Trump has made it clear he will not hesitate to go to court if he does not like the result in states where the vote is close. This is also the moment when Attorney General Barr will step in with civil suits claiming fraud and announcing investigations to tie up the election.

Early on, the two of them settled on the notion that the source of mail-in balloting corruption would be foreign. We reported in “To Stay in Power Will He Steal the Election?” that as far back as April Barr speculated that “foreign governments might conspire to mail in fake ballots”. In one week in June, Trump tweeted four times of foreign sabotage. “Ballots will be printed by foreign countries, and others. It will be the scandal of our times!”. This has been a steady theme ever since — repeated so often as to be an invitation to “foreign powers who don’t want to see Trump win”, as Trump tweeted. It brings to mind his “Russia, if you’re listening” entreaty to the Kremlin to find Hillary Clinton’s missing e-mail.

Why foreign? The fraud they will claim — and it is certainly their plan to do so else why the commotion about mailed ballots — needs substantiation. It will be difficult to fabricate frauds generated by actors within the U.S. and sizeable enough to make a difference in key battleground states. “Imagine if you tried to change the outcome in Pennsylvania; you’d need a widespread conspiracy,” said Richard Hasen, an election law expert at the University of California, Irvine. Instead, the amorphous notion of a deluge of phony ballots from outside the country — China, one can guess, which presumably prefers Joe Biden.

We won’t see these ballots. They’d be too difficult to falsify. How could the conspirators get voter registration information and signatures before knowing in what state the counterfeits would be needed to sway the election? So the “rigged” ballots will be held under wraps, highly classified, “under investigation” by Barr’s Justice Department while the law suits block any resolution of Electoral College delegates in states where fraud is claimed.

deadlines

Under federal law, the slate of electors, Republican or Democrat, in each state must vote on December 14th to select the new president and vice president according to which have won in their state. The date can’t be changed without an act of Congress. But what if, thanks to legal attacks on the election outcomes, the results are disputed? What if a Republican-led state legislature uses the Trump fraud lawsuits as justification not to certify a Democratic elector slate, or a Democratic governor, disgusted by Trump’s obstruction, refuses to sign off on the slate passed by a Republican-controlled legislature?

Under the so-called safe harbor provision, states have until December 8th to resolve disagreements, meaning only five weeks after the election. If a dispute isn’t resolved by then, a state’s legislature has until the December 14th deadline to determine how to select its electors else forfeit its electoral votes. It was on that deadline that the Florida recount was halted by the Supreme Court in 2000, handing the presidency to George W. Bush who held a mere 537 vote lead, but was 544,000 votes behind Al Gore in the national vote.

Nothing compelled Gore to honorably concede in 2000. That Trump would do the same is inconceivable. In 2020, what if instead of one Florida, we have a dozen Floridas?

The Supreme Court may be leery of another 2000 debacle, but if it does step in to decide campaign lawsuits, it will be after the utterly devoid of scruples Mitch McConnell has pushed through Trump’s replacement of Justice Ginsburg, Amy Coney Barrett. Trump tweeted, “We have this obligation, without delay!”, though he spoke of no such obligation in 2016. McConnell blocked for almost a full year any consideration of Barack Obama’s choice of Merrick Garland for the court on the grounds it was an election year; what a surprise he has abandoned that violation of the Constitution in this election year. With a 6-to-3 conservative-to-liberal imbalance there will no longer be a possible ethical swing vote from Chief Justice Roberts.

If the Court doesn’t step in, and there are states missing from the Electoral College vote resulting in neither candidate amassing a majority of votes, we could have two self-declared presidents on the eve of next year’s inauguration. That throws the decision to the House of Representatives which “shall choose immediately, by ballot, the President”, as called for in the Constitution’s 12th Amendment (1804). Assuming the Democrats still control the House after the election, Biden is voted the next president of the United States, yes? Well, no. It doesn’t work that way. The Amendment gives each state a single vote, making the smallest red states equal to the largest. How a state votes is controlled by which party in that state has the most representatives: 26 states have a majority Republican House delegation, 23 states have a majority Democratic delegation. Pennsylvania is evenly split. Trump wins, 26 to 23. “Any victor who emerged from such chaos would serve under a cloud of illegitimacy, promising four more years of political instability”, write David Rivkin and Lee Casey, who both practice appellate and constitutional law, in a Wall Street Journal op-ed.

the fascism beneath

But Donald Trump, with Bill Barr coaching, may not want to risk the dicey procedural tangle of the Constitution. More ominous than another election decided by the Supreme Court, or by the House, is what we reported a while back — that Bill Barr, who thinks the president should have near absolute power, was having his Justice Department pull together all the emergency powers available to the president and simultaneously developing “a Justice Department opinion arguing that the president can exercise emergency powers in certain national security situations”, as reported by Newsweek.

What is that about?

A year ago January, we laid out what is known about those emergency powers. Congress itself early in the last century legislated various statutes expressly kept secret and dormant, to be awakened only when a president decided there was a national emergency to deal with. Once activated, these powers have stayed active, passed from one president to the next.

The Brennan Center for Justice at New York University has compiled “an extensive list of presidential emergency powers that might be inappropriately invoked in a national security crisis”.

They are secret, and the Center could only divine what’s in the estimated 50 or 60 documents largely through the cracks in Freedom of Information requests of FBI memorandums. Those peeks have shown mention of suspension of the Constitution, curfews, suspension of habeas corpus, voiding of Americans’ passports, warrantless searches, the imposition of martial law, and an FBI “Security Index” of more than 10,000 persons considered to be subversive and subject therefore to detention.

These items have never been invoked, but now Donald Trump is president. He has shown an appetite for them, but we weren’t paying much attention. On March 12th he spoke of his “strong emergency powers” and declared, “I have the right to do a lot of things that people do not know about.” A week later he told us his thinking: “When somebody’s the president of the United States, the authority is total. And that’s the way it’s got to be.”

Beneath his subdued demeanor one can see Barr is angry. He exhibits a paranoid vision of where the country is headed, evidenced in his speeches, such as last October at Notre Dame found here. He blamed increasing secularism for every social pathology in America today and espoused a “need for a resurgence of Catholic education — and more generally religiously-affiliated schools”. He is alarmed that with Biden as president the country would be “on a path to socialism”. He seems ready to take drastic action to keep Trump in power; his interest in emergency powers raises the prospect of having the president put them to use.

In the midst of several states deadlocked in the certification process, might that be when Trump, schooled by Barr, declares a national emergency, suspends the election, institutes a number of the powers listed, and — as those who fear for this democracy do not think outlandish to suppose — declares martial law in place of constitutional law, with himself continuing as president for as long as he decides the emergency exists? Thus, to avoid socialism, would Barr destroy our democracy, and with the full concurrence of Donald Trump, who has no ideology, shows no concern for the nation’s constitutional foundation, and has no other goal than to stay in power.

The ensuing riots would tear America apart. Trump has said,

“I have the support of the police, the support of the military, the support of the Bikers for Trump — I have the toughest people, but they don’t play it tough — until they go to a certain point, and then it would be very bad, very bad”.

White supremacist militias, eager to perpetuate Trump’s anti-immigrant policies, would face off against outgunned ordinary citizens. The 240-year American experiment in democracy will have come to its end. When Benjamin Franklin walked out of Independence Hall after the Constitutional Convention in 1787 and someone shouted, “Doctor, what have we got? A republic or a monarchy?”, Franklin supposedly responded, “A republic, if you can keep it.” We are about to see whether we can still keep it.