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PaperclipPerfector  1yr ago (text post)   26925 thread views

Culture War Roundup for the week of September 25, 2023

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Surely the proper legal jurisdiction for deciding with whom the State of Texas should do business is in fact the State of Texas, though?

It's kind of identical -- NY would probably not be going after Trump if not for his annoying persistence in wanting to be President, and there would be no problem with Wells Fargo banking Texas if not for their (mostly non-Texas) actions against Ruger. The fact that both actions are taking place in the appropriate venues does not delete the fact that the States in question are using the venues to influence things within a wider jurisdiction. (and I'd suggest humbly that "who can run for President" is a more consequential thing than "who can bank with Wells-Fargo")

I’m confused.

  • Texas regulating with whom it will do business—fine. This is normal contractual stuff.
  • Texas regulating businesses entirely within Texas—also fine.
  • Texas regulating businesses outside but selling to Texans—probably fine. Even though it is affecting interstate commerce, it’s only restricting it with regards to its own jurisdiction. Also, I’m pretty sure this is how “dry counties” and similar alcohol laws work. I can see the abuse potential, but…
  • Feds regulating businesses outside Texas, selling to Texans, is obviously fine. Central example of interstate commerce. And my naive assumption is that such regulation supersedes whatever Texas says. Congress should be able to legislate “no state shall forbid such-and-such.” If this isn’t true…then I have no idea how the ATF or FDA are supposed to work

In other words, I feel like Texas is allowed to regulate what products Texans may purchase unless preempted by federal law. I also assume that this has already happened somewhere in the US Code. I recognize that I may be completely off base, especially if this is one of those “gentleman’s agreement” situations we’ve been tearing down, lately. Maybe in five years North Carolina decides to cancel the FDA.

Also, I’m pretty sure this is how “dry counties” and similar alcohol laws work.

Alcohol is generally treated as special because of the powers given by section 2 of the 21st amendment - if a state constitution grants counties the authority to declare themselves dry, that would be a pretty clear application of section 2. But given that SCOTUS has ruled that the dormant commerce clause still applies to alcohol notwithstanding the 21st amendment (e.g. Granholm v. Heald (2005) 544 U.S. 460 and Tennessee Wine and Spirits Retailers Association v. Thomas (2019) 588 U.S. ----) there's probably some wrinkles here that I'm missing.

Small point, but I wouldn't say New York is going after Trump for "wanting to be president".

Just "wanting to make him suffer" is more accurate. Had he announced he wouldn't be seeking re-election after 2020, I'm fairly confident these cases would have proceeded regardless.

Well maybe sub "for presuming to have been president" -- I'm not convinced that he would have been pursued with such vigour if not for the clear and present danger that he might become president again, but either way it's pretty bad -- and a clear example of a state trying to influence national politics using state law. "Pour encourages les autres" in your scenario -- but I thought the really hinkey part of this was trying to have Trump banned from running again on the basis of some vague linkage between this NY civil action and a novel interpretation of some eligibility law? Or was that the Stormy situation, I can't keep track?

I think this is probably true. Most of the things he’s being charged with now happened decades ago. He didn’t recently try to take out a loan with inflated net worth. These events happened years ago, without comment, and without charges being filed. In fact if I recall correctly there was some concern in one of the cases that the statute of limitations would run out before the charges were filed. That’s not an evenhanded application of the law, and in fact is pretty good evidence that had Trump never been elected President, he would not be facing charges.

As far as ballot acces, I think Trump or his supporters would have a pretty strong argument that this is restraint on democracy in the sense that we’re essentially looking at a situation where one of the two major party candidates simply won’t appear on the ballot. Which means that essentially Joe Biden or the Democratic nominee if they need to put him in a care home, is simply handed the electors from any state that removes Trump with little recourse for republicans who will almost certainly nominate Trump.

Wouldn't their recourse be to not nominate Trump?

Wouldn’t the ability of the ruling party to essentially force the opposition to forego the candidate that they think can win at least problematic is a democracy?

The essential argument is that it’s perfectly okay for democrats to remove the republican nominee from the ballot is states they control, and the reason that it’s okay is that the republicans are supposed to pick someone democrats like, or once the democrats start removing the preferred candidate they’re free to un-nominate their preferred candidate for someone else. But this essentially gives democrats (and republicans if it stands into next cycle) the right to simply not put the opposition on the ballots they control. Which is not in my view a Democratic system, which at bare minimum requires that voters be allowed to vote for whoever they want to without interference.

In which case NYS would have gotten what they wanted (by leveraging their State courts on what is clearly a Federal issue), no?

Sure, but if it were unpopular it would be a hollow victory, as Trump holds rally after rally for his chosen successor who sweeps to power as swing state voters offended by New York's actions turn out in droves.

The problem here being that there is no chosen successor to Trump, and there really can't be, because Trumpism is the incoherent and inchoate thoughts of a single, particularly inconsistent, man. In the past eight years despite the best efforts of many to seize the mantle no infrastructure has been created, the mainstream Rs who have tried to co-opt Trumpism aren't trusted and the DR true believers trying to pull Trumpism in their direction don't have a real constituency.

This kind of lawfare only works against Trump because there's no backup. If you tried this on, for example, actual Hitler, Goebbels or Himmler or Roehm would have won the election and cleaned their clocks. Crucifying St Paul didn't stop Pauline Christianity, let alone Christianity as a whole.

Now maybe you can argue that the cathedral will do the same to anyone who gets too far off the reservation, but one must admit that Trump offers a uniquely target rich environment. We should at least try a candidate without them. Doug Mastriaono was a good example of a true believer without the baggage... He faced no lawfare in his gubernatorial run but got bodied in the general election anyway.

Now maybe you can argue that the cathedral will do the same to anyone who gets too far off the reservation

No maybes about it -- once they have discovered this power, why would they stop? Lest we forget, "Literally Hitler" has been applied to every Republican candidate in recent memory, including Mitt Romney. (!)

It's maybe been stickier than usual due to the target-rich environment, but if state lawfare can disqualify candidates nationally you only need it to be sticky in one state -- and the opposition is really only left with one box to try.

we’re essentially looking at a situation where one of the two major party candidates simply won’t appear on the ballot

Hopefully they don't try it, or only try it in deep blue states like California where it's common knowledge it wouldn't affect the result. Because if there's a situation where Trump would plausibly have won if not for being stricken from the ballot, that's straight-up a stolen election and the democratic covenant against revolt is broken. There's one final "hope" insofar as there's some chance that the Republican machine would accept it, but my money would be strongly on full-scale civil war at that point since it only takes one Republican state government to declare secession; the rest would then be essentially forced to do likewise in order to avoid being asked to fight the rebels.

Honestly, at the point of "elections will be stolen if they don't go the prescribed way", I'm not even sure revolt would be wrong.

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