Some scattered thoughts for your July 4

The end of nationwide injunctions, the NYC mayor's race and seismic legislation in California

I hope everyone is enjoying their July 4 break. Since I have some time on my hands and a lot on my mind I thought I’d give you all an extra post this long weekend. If nothing else it compensates for my lack of writing one last weekend. I can’t guarantee I’ll do that for every missed time, but in this case you all are in luck.

The House passed the Big Ugly Bill on a 218-214 vote on Thursday, but I’m not writing about it here. I will be writing a lot about it over the weekend so don’t worry you all will get plenty of takes on it. There have been three things that have happened since I last wrote that I want to go over. All are important, but some more so than others, although I admit I’m not entirely sure which one will matter the most in a few years. I think I know which one will matter the least, but I could be wrong.

The first thing that happened was the Supreme Court ruling in Trump v. CASA. It came out last Friday and is a big deal. In it, SCOTUS ruled 6-3 that nationwide injunctions are not allowed. The 6 conservatives were in the majority and the 3 liberals dissented. Contrary to what you might have heard or think, the case did not involve the constitution. It was over whether the Judiciary Act of 1789 allowed lower courts to issue such injunctions. The majority said it did not.

For those not familiar, nationwide injunctions refer to the ability of lower courts, usually federal trial courts, to issue a ruling that binds the federal government throughout the entire country as opposed to just the parties filing suit. It was seldom used for the longest time, but became commonplace this century. Since Trump took office, multiple nationwide injunctions have been issued against executive orders of his.

With the ability to fight his actions via nationwide injunctions gone, Democrats almost everywhere reacted apoplectically to the ruling. With Congress controlled by Republicans, there is no chance in hell it will do anything to push back against him. The courts were the one avenue available and now that has been limited. To be clear, I have no idea whether the ruling is right on the merits. I have not read it and am not going to.

I’m looking at the ruling solely from an outcome standpoint, i.e., whether I like the result. On that basis, I agree with the majority. It’s not every day I find myself in agreement with that crowd, but in this case they got it right. If you’re interested in reading arguments for why the ruling is right on the merits from people who are good authorities on the matter, see here and here.

My reason for agreeing with the outcome is severalfold. First, nationwide injunctions have gotten way out of hand. They became common during Obama’s term and were used extensively during Trump’s first term. Since then, the use of nationwide injunctions has become the norm. That’s not how it’s supposed to work. My guess is had they been used sparingly, the ruling may have come out differently or it may never have gotten to SCOTUS.

More philosophically, I have a very low view of the judiciary. I’m glad it exists, but I see it as a necessary evil. I’m talking mainly about constitutional law and interpretations of controversial laws. Both of those are so infected by partisanship that I don’t trust courts to interpret them without pushing an ideological agenda. Some of that is inevitable, but I would like to keep it to a minimum. Anything that reduces the power of courts is a positive in my book.¹

Having elections for judges, as most states do, is bad, but giving them lifetime tenure is even worse. I’m not aware of any other country where that is a thing. The idea behind lifetime tenure is that judges would rise above partisan politics, but that clearly has not worked out. The less power they have to pursue their own agendas, the better.

With nationwide injunctions as a tool, plaintiffs can go shopping for judges they think will rule in their favor. One of the most egregious examples is the one federal judge based in Amarillo. He ruled two years ago that mifepristone was wrongly approved. Because the ruling was appealed so quickly and SCOTUS intervened it never got to him issuing a nationwide injunction, but that wasn’t preordained. That same judge has been a favorite of right-wing plaintiffs challenging federal laws and actions they don’t like and he seldom disappoints.

To be fair, that goes both ways. Plaintiffs who don’t like Trump can find sympathetic judges and they have done so. Either way, it’s bad and it further advances the idea of courts just being partisan operations. The more power courts have in this polarized age, the worse their partisanship is going to get.

As much as I dislike Trump and the actions he has taken, I’m not really opposed to extensive executive power. I don’t want the president to be a dictator, but I don’t mind them having wide latitude to do things. It’s cliché to say elections have consequences, but it’s not always true. Often times, courts will stop various presidential actions or laws passed by Congress. I’m certainly not 100% against that, but I look at it very unfavorably even when I think it's right.

In general, I don’t believe in insulating voters from the consequences of their actions. Trump made it clear who he was and what he was going to do. Whatever was on the minds of those who voted for him doesn’t matter. They pulled the lever for him and they should get what he promised. Yes, plenty of us who didn’t vote for him will get hit by it, but that’s life. When you lose elections, sometimes bad things happen. HL Mencken said, “Democracy is the theory that the common people know what they want, and they deserve to get it good and hard.” Those are my thoughts exactly.

While Trump’s executive actions are bad policy, they can be great politics for Democrats. He’s unpopular for many reasons and the actions he has taken have a lot to do with it. The more courts restrain him, the more people are insulated and more likely to believe he’s fine. The best way for voters to turn on him is to see the consequences of what he does.

Don’t get me wrong, I don’t like that Congress has checked out. Any other president doing what Trump does would have been impeached and removed a long time ago. As I wrote about recently, our constitution was designed to deal with a president like Trump. The framers most definitely took into account that possibility. What they didn’t take into account was Congress abandoning its duties and letting the president do whatever they want.

Our constitution is not self-executing. If the president engages in impeachable acts, Congress can impeach and remove them but if it doesn’t there is no way to force it to. That’s the rub. In the absence of Congress doing anything about Trump and courts now being limited in what they can do, how can Trump be held accountable?

My answer to that is very unsatisfactory and I hate it as much as anyone else. We’re just out of luck. Democrats didn’t win the White House or Congress last year and so can’t do anything on their own. Republicans are owned by Trump. Essentially, he can operate with very little accountability right now.

The only solution is Democrats are going to have to do better in elections going forward. The good news is we have midterms coming up soon. I expect Democrats to win back the House at a minimum. Just by doing that they will have the power to investigate Trump and to shape legislation or prevent it from passing altogether.

Even if next year is a blue tsunami, though, Trump will still be president and there will never be enough votes in the Senate to convict him. Maybe SCOTUS will rule against him on something fundamental that limits him significantly, but absent that he will still be able to do a lot of bad things.

The good news with Trump’s actions is that since they are all being done by executive order that means the next time a Democrat is in the White House they can reverse all of them. I have no doubt that will happen. You live by executive order, you die by executive order.

On a final note on this subject, it’s important to remember that plaintiffs are not without remedies. Nationwide injunctions are not available, but specific relief given to those who filed suit is an option. Class-action lawsuits are also an option. There may even be ways to pursue things similar to nationwide injunctions under a different statute.

SCOTUS has expanded presidential power here, but we’re not going to become a dictatorship because of it. Since Trump first won, many have been quick to declare our democracy to be on life support. Trump has certainly tested it like no president has before, most notably on January 6. Despite that, our democracy is doing alright. It’s bruised, but it’s a long way from death.

Many people have gotten over their skis during the last eight years and lost a lot of credibility by declaring every Trump action to be dictatorial. I try my best to not do that. These are trying times, but I’m confident we’ll get through it. Not to be too much of a self-promoter, but if you’re looking for a gauge to measure our democracy’s health, you could do worse than reading this newsletter. If I ever think our democracy is in serious trouble, I will write about it. If that happens, then you can panic, but until then, relax, take some deep breaths and enjoy life.

New York, you’re killing me

Against the expectations of most everyone, Andrew Cuomo went down in flames in the NYC mayoral Democratic primary. Zohran Mamdani wound up winning comfortably. I’m not happy about the result, but I’m not angry or upset about it either. As I discussed three weeks ago, Cuomo is a pile of garbage. There was no positive case to make for him and he deserved to lose. I don’t even hear the world’s tiniest violin.

The only reason I wanted him to be nominated was because the downside of putting Mamdani in charge is potentially much greater. Cuomo’s downside was limited, but his upside was non-existent. He was the status quo candidate. All of the party’s interest groups who are doing everything they can to make NYC an unaffordable place to live with lousy and expensive public services supported him.

Unsurprisingly, Mamdani’s win has gotten tons of coverage. Pundits are falling over themselves to declare him to be the future of the Democratic Party. Some say it happily, particularly leftists and Republicans, and others say it as if it’s the apocalypse. Allow me to pour some freezing cold water on that scorching hot take. I don’t rule anything out and always hesitate to predict the future, but call me highly skeptical that he represents where the party is headed.

His victory getting attention is understandable not just because he won as a socialist, but also because he beat the party establishment. Based on that, some have concluded that Democratic voters are so fed up with the party leadership that they want to burn it all down like Republicans did with Trump. I know it makes for great columns and talking points online and on TV, but that’s not likely the case and everyone needs to calm down.

The NYC mayoral race is not the only election happening this year even if the primary was the only election going on last week. That’s something to remember about those in the politics business. They love talking about elections, but elections don’t happen that often. When there is an election going on, particularly if it looks like a big ideological fight, it will be talked about as if it’s going to determine the fate of civilization. That’s true regardless of how (in)consequential it really is.

They’ve gotten very little attention so far, but New Jersey and Virginia will be electing governors in November. The Democratic nominees in both states are mainstream Democrats who won their nominations easily. In Virginia’s case, there wasn’t even a primary because nobody else ran. If you’re going to predict the party’s future based on elections held this year (don’t do that!), the two Democratic nominees in those states are likely much better indicators.

The only thing Mamdani’s win definitively proves is a socialist can win a Democratic primary in a solidly blue place against an opponent who is toxic and widely despised. I will give him credit for this much: he ran a great race and focused relentlessly on the cost of living. If there’s anything other Democrats running should take away from his win it’s that voters care about the cost of living above all else. However, if you’re looking for how to win general elections in Alaska, Iowa, Kansas, Ohio and Texas or in swing districts, he’s not the answer.

Mamdani has plenty of far out there beliefs on everything from LGBT issues to policing that would make him unelectable almost everywhere. He was smart to not talk about any of it when running. If he had done that he would not have gone anywhere. His solutions to address the cost of living are almost all bad, but voters don’t know that. He had his finger on the pulse of what people were interested in and that’s what counted. That’s something every candidate and elected official should be cognizant of.

If I lived in NYC, I would not vote for Mamdani in November. He’s only 33 and maybe he can change for the better, but he’s so far to the left that I don’t trust him to do that. His saying on Sunday that billionaires shouldn’t exist does not inspire confidence.²

Like I said before, Eric Adams is a corrupt sleaze, but he’s good on housing and the city is in a much better place than it was in 2021. I would vote for him holding my nose so hard I crush it. Funny enough, the decrease in crime likely reduced its salience in the primary, which worked to Mamdani’s benefit given his unpopular stances.

Mamdani is heavily favored to win in November, but it’s not guaranteed. I hope for his own sake and the sake of NYC that he understands the magnitude of the job he’s applying for. He’s currently a state legislator, which is vastly different from being mayor. When you’re a legislator, you don’t have to do much of anything. You can spend your time online, on podcasts and/or on TV opining on every issue under the sun. You can be an unpleasant person and someone nobody likes to work with. Because you’re one of many you can get away with that.

Being mayor is very different. There, you’re one of one. Mayor of NYC is no ordinary mayoral job either. You’re running a massive bureaucracy with all kinds of groups and interests that are deeply entrenched. I hope he’s rolling up his sleeves and getting ready to get to work. Tweeting and podcasting is nice and well, but when people expect you to pick up trash, keep crime down and maintain roads and you don’t do it you’re going to be in trouble.

I don’t know who he’s surrounding himself with, but I hope it’s people who are serious and know what they’re doing. I hope he really is the pragmatist some of his boosters insist he is. Whatever idealistic fantasies he has are going to crash into reality on day one and he’s going to have to decide what to do after that.

I will end this section on a more optimistic note. Many of those in the abundance camp believe Mamdani is sympathetic to their cause. I’m very much a part of that camp, but am deeply skeptical that he’s going to be an abundance advocate. That said, I do believe there is a chance, however slight, that he could be a supporter. He would have to get past a whole lot of ideological proclivities, but if he did that I think he would be a very effective advocate for abundance.

That’s not something you could have said about Cuomo. He had no intention of improving anything. With Mamdani, there is at least a small chance he could be a pusher of needed changes.

An earthquake in California (the good kind)

On Monday, California did something that was unthinkable just a short while ago. The legislature passed and Gavin Newsom signed legislation substantially limiting the reach of the California Environmental Quality Act. It had overwhelming bipartisan support and took effect immediately. It exempts a vast majority of housing from being subject to CEQA (pronounced see-kwa). That will ensure it won’t have to go through years of litigation, which has been a major culprit in the state’s housing costs.

CEQA has been around since 1970 and is a sacred cow if there ever was one. It has fierce defenders in unions, environmental groups and others who benefit from using it to block things or to extract concessions. The law’s original aim was fairly modest and it was never meant to apply to housing. That changed when the state supreme court ruled soon after its passage that it did apply to housing and it’s been downhill since then. That changed this week.

Efforts at reforming CEQA had been pursued before, but almost always trimmed around the edges. Sometimes, specific exemptions were granted to particular projects. Other times, efforts at reform were killed before they went anywhere. This time was different.

Housing costs in California have gotten so bad that it can’t be ignored any longer. Talk about the need to reduce housing costs is cheap. The only way to make it happen is to allow more housing to be built. In principle, almost everyone there agrees. In practice, it’s often been a different story.

I, along with many others, have written about the problem of everything bagel liberalism and in no area has it been a bigger issue than in California housing policy. Previous efforts at making it easier to build housing tended to come with all kinds of strings attached that made it impossible to do anything. Housing was permitted to be built or financed with public money, but only if it was done by union labor, small businesses, woman and minority owned businesses, hired locally, etc.

The legislation passed during the week does none of that. It’s very much a plain bagel, which is what will make it so impactful. What’s important about what happened in California is not just that it’s addressing the state’s biggest problem in a serious way. It’s also that it marks the first time in a long while when Democrats have said no to big supporters of theirs on a high profile issue.

I have written before that the two groups Democrats have to be willing to say no to more often are unions and environmental groups. In California, they did just that. The legislation had the support of the carpenters’ union, but the union representing construction workers, a major force in California, initially opposed it, even comparing it to Jim Crow.³ Virtually every single environmental group opposed the legislation, too.

Historically, when unions and environmental groups have been united on something, Democrats have yielded to their demands. To his credit, Newsom did not do that. He stood his ground and kept pushing for its passage. Seeing the writing on the wall, the construction union backed down and stopped opposing it. When it came up for a vote, the legislation, consisting of two bills, passed easily.

In his speech signing the legislation, Newsom used the word abundance and gave a shout out to Ezra Klein. Abundance isn’t some fad that’s going to come and go. It’s a real movement and it has supporters in high places. It offers solutions to the problems of today and is a positive, pro-growth alternative to the backwards looking Luddism of MAGA.

The best part about the legislation is that it’s not as if there’s a tradeoff between being pro-growth and pro-environment. Building more housing in California is great for many reasons and one of them is it helps with carbon emissions. California has a nice climate, which often doesn’t require the use of AC or heating. If you want to see lower emissions, having more people live in densely populated parts of California is a great way to do it.

In the case of unions, more housing being built will mean more jobs in construction. That will mean more opportunities to organize workers. The carpenters’ union gets that, which is why it supported the legislation from the start. Too often, unions have been short sighted and have focused all their energy on trying to keep whatever little bit they have. That’s the wrong approach and Democrats should not defer to them when they push for it.

I have no issue with unions trying to organize workers. In a union friendly state like California it shouldn’t be hard. I do have a problem with them trying to keep away competition and using laws like CEQA to force builders to hire their members. They’re going to have to make the case to workers for why they should join them. If they can’t do that, that’s too bad, but they should not be able to prevent others from working in construction.

As much as I have criticisms of unions, they can be a force for good. Improving the lives of workers and providing them with a community and on the job training are all good things. On some issues related to abundance, like permitting reform, they can be allies. Even if they don’t represent many workers today, they still have millions of members, are a big part of the political culture in many states and have a lot of goodwill built up from the past. They aren’t the force they used to be, but they can still have a big influence in a good way.

Environmental groups can make no such claim. They represent no voting constituency at all. They don’t speak for anyone but themselves and care about nothing other than blocking things. They have not only opposed efforts to build housing, but to build anything. They’re nothing more than NIMBYs and far-left ideologues. Unions can be pains in the ass, but they tend to be pragmatic and are usually team players. As the construction union showed, when they see the writing on the wall, they back down and try to be cooperative.

Environmental groups don’t do that. On the national level, they sabotaged Biden and Harris’ chances by demanding they push for unpopular ideas. They wanted a president to prioritize climate change and Biden did it. Rather than take the W and work to help him and later Harris win, they started making new demands. That’s unacceptable and they should be thrown under the bus.

In California, they fought every effort to reform CEQA until the bitter end. Even after the legislation passed, they’re still crying foul. That’s how they’ve approached just about every issue. They serve no good purpose and no Democrat anywhere should listen to them.

I hope Democrats at all levels of government are looking closely at what happened in California. Despite virtually unanimous environmental group opposition, CEQA was reformed with little to no resistance from the legislature. None of the Democrats who voted for it will lose a primary because of it. Environmental groups don’t have a large group of voters to mobilize against anyone. They can protest, yell and post and that’s it. They are very loud, but they’re just paper tigers.

1. As I wrote about almost three years ago, Republicans need courts much more than Democrats do. That’s why I think a world with much weaker judicial review is a better place than where we are now.

2. I hate his defending the phrase “globalize the intifada,” but it has no relevance to the job of being mayor of NYC. Regarding what he identified as on his college application, I couldn’t care any less.

3. The Teamsters, United Auto Workers and United Steelworkers also opposed it.