Independence Day, 2024

The warning signs are all flashing red, but there’s still cause – and an imperative – for hope.

Welcome to another installment of Life Its Ownself. I offer insight, analysis and context on Texas and national politics, as well as entertaining stories of life its ownself in the Lone Star State. If you like what you read, please 1) smash the Like button at the bottom of this page, 2) subscribe to this newsletter, and 3) tell your 1,000 best friends to read and subscribe. Also, feel free to comment below. I’d love to hear your thoughts.

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But first, your moment of Zen … Sunset, Marathon, Texas, July 3, 2024.

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Thursday, July 4, 2024

Quote of the Week: “next to of course god america,” by e e cummings

“next to of course god america i
love you land of the pilgrims’ and so forth oh
say can you see by the dawn’s early my
country ’tis of centuries come and go
and are no more what of it we should worry
in every language even deafanddumb
thy sons acclaim your glorious name by gorry
by jingo by gee by gosh by gum
why talk of beauty what could be more beaut-
iful than these heroic happy dead
who rushed like lions to the roaring slaughter
they did not stop to think they died instead
then shall the voice of liberty be mute?”

He spoke. And drank rapidly a glass of water

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Many's the times I've been mistaken
And many times confused
Yes, and I've often felt forsaken
And certainly misused

         It’s hard to know how to talk about this, the 248^th Independence Day of our nation. In many ways, life for most Americans is good. The economy is strong, wages are up, inflation is dropping.

         But there’s a restlessness among us, a darkness on the edge of town. And we face a choice this November, to select a President who will lead the country through its 250^thanniversary. The uncertainty of that choice, only four months away, is now complicated by calls for one of the candidates to withdraw.

Oh, but I'm alright, I'm alright
I'm just weary to my bones
Still, you don't expect to be bright and bon vivant
So far away from home, so far away from home

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I.

         When I last wrote on Friday, Joe Biden had stumbled badly in the CNN fact-free debate, a debacle (CNN’s) which should never be repeated. I indulged in the speculation that has gripped America for the last week: is Joe Biden fit to serve another four years and, if not, what can be done about it? I recommended he (and Kamala) step aside and allow the Democratic Party to put forth another ticket for November. Subsequent events have dampened some of my alarm, but the underlying issue of Biden’s fitness – not just as a campaigner, but as our President for the next four years – stubbornly remains the subject of much discussion.

         N.B.—I did not weigh in on Donald Trump’s performance in the debate – a cascade of lies, fabrications, and conspiracy theories that would make Marjorie Taylor Greene blush. That’s because I have never, for one New York minute, considered Donald Trump competent intellectually, morally or temperamentally to hold the office of Commander in Chief.

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II.

         Such was the dilemma the Republic faced on Friday morning. Then the Supreme Court stepped in and said, “Here, hold my beer.”

         Friday morning it announced its decision in Loper Bright Enterprises v. Raimondo, a decision that will have a profound impact on how we regulate almost everything in America. Here’s the précis:

• As American society became more complex, Congress’s laws to regulate in the public interest grew and became likewise complex. When Congress realized the legislative process was inadequate to manage such complexity, it devolved rulemaking authority to agencies with the specific expertise to develop, with public input, rule and regulations to implement its laws.

• In 1984, the Supreme Court, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, acknowledged this complexity and ruled that courts should defer to administrative rulemaking (called “Chevron deference”) unless it could be shown to be arbitrary and capricious.

• Loper Bright overruled Chevron and said courts do not have to defer to administrative agencies but should freshly (“de novo”) consider whether a particular rule was appropriate. And rather than starting with a presumption that the administrative rulemaking process had fashioned a good result, judges should, in the parlance of our times, “do their own research.”

• Thus, judges like Matthew Kaczmarek of Amarillo (of mifepristone infamy) will now be deciding whether fracking is good for the environment or seat belts are reallynecessary in cars.

         Critics of Chevron had argued that Article II agencies – the administrative state – were usurping the lawmaking job of the Article I Congress. SCOTUS’s answer to that is to assign ultimate regulatory power to the Article III courts. Loper Bright represents a huge transfer of power to the courts, usurping both the legislative and executive branches.

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III.

         As if stealing power from the other two branches wasn’t enough, on Monday the Supreme Court robbed the Constitution itself of power to regulate the conduct of the President in Trump v. United States.

• Tasked to consider whether Donald Trump’s efforts to overturn the election he lost (specifically by advancing the “fake electors” swindle, trying to get the DOJ to tell state legislatures to reject the election results, and inciting the riot at the Capitol on January 6^th) were illegal and extra-constitutional …

• SCOTUS articulated a broad new definition of presidential immunity, in which such immunity was absolute within his “conclusive and preclusive” authority, presumed within the “outer perimeter” of his authority, and a fact question within his purely unofficial acts.

• What acts are within each of those three categories now become fact issues in a court, with a strong presumption in favor of presidential immunity. And, of course, different courts will make different findings, which will keep SCOTUS in the driver’s seat as the ultimate arbiter of presidential immunity.

 

        It’s not quite Richard Nixon’s 1977 maxim that “when the president does it, that means it is not illegal,” but it’s pretty close.

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I don't know a soul who's not been battered
I don't have a friend who feels at ease

I don't know a dream that's not been shattered
Or driven to its knees

But it's alright, it's alright
For we lived so well so long
Still, when I think of the
Road we're traveling on
I wonder what's gone wrong
I can't help it, I wonder what’s gone wrong

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IV.

         Now, I have an almost Mr. Smith Goes to Washington fanboy love for this country and, I confess, willingness sometimes to overlook its faults. I believe the United States, uniquely among most nations that have ever existed, was founded on a set of ideals, as opposed to the racial, ethnic or sectarian forces that have served as the organizing principles in most places throughout history. (This partially explains why the U.S. has been able to harness the energies of so many people from all over the world and build the most open and energetic society in history.)

         What are those ideals? Liberty, equality, opportunity, self-governance, respect for the rule of law (“no person is above the law”), and a willingness to defend those ideals at home and abroad.

         This is not a jingoistic narrative. I do not suggest that our history perfectly reflects those ideals. In fact, we should humbly admit that, for many of our people and much of our history, we have failed to live up to those ideals. Candor and integrity require us to acknowledge our failings, and to resolve to do better 

         Still, when you consider the thousands of years of human history before 1776, it is a miracle that the American experiment has worked as well (if imperfectly) as it has. We are two years shy of the Semiquincentennial, or in English, the 250^th birthday of this nation.

         I know many of you, Dear Readers, share my love and admiration for this country, if not my naivete.

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V.

         Humility and a decent respect for the lessons of history require us also to recognize that the survival of the American Experiment is by no means guaranteed. American Exceptionalism, Manifest Destiny, and Jingoism notwithstanding, there are no guarantees our country will survive, or that the democracy we fashioned out of a New World will continue.

         Of course, this nation has faced terrible challenges before. The Civil War, the Army-McCarthy hearings, and the ubiquity of the Kardashians come to mind.

         But many of us – most of us, I reckon – view this fall’s presidential election as a nenacing inflection point on the way to ruin. And on both sides. Partisans for Trump have convinced themselves Joe Biden is an existential threat to the country. In fairness to them, Trump spews demagoguing lies to that effect on a constant basis. To listen to his speeches, our country is

1. under “invasion” from Mexicans, terrorists, and inmates from prisons and mental asylums;

2. culturally endangered by decadent forces of wokeness, including the LGBTQIA community, DEI programs, and the dreaded “secular humanists;”

3. victim of a rigged national election system that a) allows millions of illegal aliens to vote, and b) tampers with and minimizes the votes of the Righteous;

4. a manufacturing wasteland whose leaders are unwilling to level the global trade playing field by imposing tariffs on everyone and everything;

5. the laughingstock of the free world, mocked for our feeble foreign policy – based on values, how silly! – and unwillingness to be more transactional in our dealings with the world. Pay up, MFers!

6. Easy prey for our enemies, with whom Trump paradoxically has a cozy, even fanboy relationship.

          This would be a sad state of affairs if any of the above were remotely true. It is a national emergency that almost half the population believes some or all of these fantasies – and that a disturbingly large share of them think a violent revolution may be necessary to change the future.

          On the other side, millions see Donald Trump as an existential threat to democracy. They point to:

1. his complete lack of character, a short-fingered vulgarian who is openly racist, preys on women, and swindles people he does business with;

2. his often – and increasingly – unhinged speeches, in which he warns against the dangers of sharks and batteries and weak shower heads;

3. his promises to be a dictator “on Day One,” and the terrifying Project 2025 infrastructure his allies are putting in place to subvert our democratic institutions; and

4. his calls for patriots like Liz Cheney to face a military tribunal, and for other political enemies to be persecuted.

          It is astonishing that, in one nation of 330 million people, two entire realities exist and contest with each other. For each side, there is a media infrastructure that amplifies their “facts” and biases to the exclusion of the other viewpoint.

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VII.

We come on the ship they call The Mayflower
We come on the ship that sailed the moon
We come in the age's most uncertain hours
And sing an American tune

          What is to be done?

          I was talking to my friend Anna Muñoz last night and, while talking about something else, she said this: “We take care of each other. That’s it. We just take care of each other.”

          It seems to me that’s a pretty good starting point.

          Then, we must hope. Here, I distinguish hope from optimism, as taught by Rabbi Jonathan Sacks: “Optimism and hope are not the same. Optimism is the belief that the world is changing for the better; hope is the belief that, together, we can make the world better.”

          Finally, as the good Rabbi suggests, we must act. Register to vote. Register others to vote. Write postcards to voters in swing states reminding them to register and vote. Come October, make a plan for early voting. Make sure your neighbors are voting; offer them a ride to the polls. And do it all with what Ernie Cortés calls “the joy of public life,” the pride and enthusiasm of someone given the privilege of shaping the future of this great democracy.

Oh, and it's alright, it's alright, it's alright
You can't be forever blessed
Still, tomorrow's going to be another working day
And I'm trying to get some rest
That's all I'm trying to get some rest

          So, enjoy your Independence Day weekend, my friends. Have fun, get some rest, and on Monday let’s go to work.

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          To play us out, two American treasures for your Independence Day: Willie Nelson performing Paul Simon’s “American Tune.”