We Mean Business
One of the hot areas in the academic world is "assessment." This page provides resources for our new assessment community of practice at Mott Community College. If we start with why, then the what and the how becomes a lot easier to understand.
I'm not going to go into detailed explanations here. I'll do a short presentation when we meet. But if you're a member of our community of practice, I ask that you carefully read what I set forth below, as well as the short articles I link to. First, the Higher Learning Commission accreditation agency lays out its criteria for what it looks for in a college's assessment program. 4.B. The institution engages in ongoing assessment of student learning as part of its commitment to the educational outcomes of its students.
To satisfy that requirement, MCC makes several claims on its General Education Assessment page. That page is pretty dense for the uninitiated, but faculty should concentrate on the three levels assessment and their corresponding approaches.
The assessment world is filled with jargon. Here's a good summary from Carnegie Mellon University that I found extremely helpful. Each of their four links will help faculty to understand the theory of assessment and how it can lead to practical actions. Take a look at all four links CMU has on that page as that's much easier than what can best be called an immersive approach that many CASL members take to learning this stuff. By "immersive," I mean tossed in the deep end. Here's a detailed article on Getting Assessment Right from the Chronicle of Higher Education. This article takes many of the ideas from the CMU page and applies them to the new digital education age. The article is from April 2018, but it's one that I think is even more useful now in the COVID age. If you find cynicism creeping into your soul, check out this Insider's Take on Assessment. Professor Gilbert addresses many of the objections and criticisms of the assessment world. It's pretty cynical, but it's what you'd expect from a guy who runs a site called www.badassessment.org. There's a lot to learn there. I hope you'll find it helpful as we look to dive into some of the formal research literature. You can refer back here if you encounter jargon or concepts that seem unfamiliar.
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Here we are in our second lockdown on the day before Thanksgiving. For better or worse, I think we're going to see a lot of folks disregarding the rules. It's beginning to look like people are deciding for themselves they are just going to take their chances with COVID-19.
That might prove disastrous if experts are right that COVID-19 is at its most pernicious in confined spaces where people are in close contact. But everyone knows that. And I expect a lot of people to celebrate Thanksgiving as they normally would. And I think the chances of police arresting entire families on Thanksgiving Day is just about zero. Didn't any of our leaders see Jurassic Park? (I'm not even going to ask whether they read the book). It's not just a monster movie. It's a parable about attempting to control uncontrollable biological forces. Complex systems resist control because they are too complex to control. So don't kid yourself thinking you can control it. In real life, just substitute germs for dinosaurs. "Life finds a way." "John, the kind of control you're attempting simply is…it's not possible. If there is one thing the history of evolution has taught us it's that life will not be contained. Life breaks free, it expands to new territories and crashes through barriers, painfully, maybe even dangerously, but, uh…well, there it is." That's a pretty good description of COVID-19's spread despite efforts by billions of people all over the world. The illusion of control. John Hammond : When we have control again-- Ellie Sattler : You never had control! That's the illusion! Our leaders have adopted a strategy based on controlling the uncontrollable. An impossible plan is not a good plan. It's as if John Hammond were running large parts of America. We do have one thing going for us, though. As Otto von Bismarck put it: “God has a special providence for fools, drunkards, and the United States of America.” May he be right once again. As for me and my house, we're hunkering down for Thanksgiving. We're going to try to hang in there and avoid this disease until the soon to arrive vaccines become available. We can't control what other people do or what our leaders do, but we can control ourselves. Stay safe out there, everyone. Control what you can control in your own life. rI've developed a simple-minded but seemingly effective way of using the last few days of campaigning to detect where the action will be on Election Day (two days now, WOO-HOO!). I've counted up all the states the presidential candidates and their running mates have visited since the last debate. Their final visits should indicate where they think they are close and with a bit more effort can win.
The campaigns spend millions upon millions of dollars on data to help them make good decisions. I suspect that they believe their internal polls much more than publicly available polls. Public polls might be skewed to encourage friendly voters and discourage opposing voters. Internal polls need to be brutally honest so that the campaigns can spend their time and money most wisely. That's my theory anyway. In 2000, the Bush campaign canceled its final weekend events to concentrate on Florida. Florida was thought to be safely in the Bush column and Jeb Bush was the governor so why would they do that? Apparently, they knew it was going to be extremely close, which we all know now it was. It was also the decisive state. It's possible that last second shift in schedule put W over the top. In 2016, I had an introductory government class for Northwood. It was in a four week format, with the middle weekend featuring a Friday, Saturday, Sunday in person session, eight hours per day. It fell on the weekend before the election so I had the students count up all the campaign stops for the candidates. We threw in President Obama as well because he was making a lot of speeches as well. The results showed that the Republicans outworked the Democrats by a mile. We found a lot of stops on both sides in Florida, Ohio and North Carolina. That was to be expected as those are historically the closest of the swing states. However, the Republicans made a lot of stops in Wisconsin, Michigan, and Pennsylvania. Apparently they thought they could win them and thought it worth the effort. We know how that turned out. So here are my results on the Sunday before the election. I counted each state's visits by all four candidates. Multiple rallies in the same state on the same day count as one. The dates run from October 23, the Friday after the final debate, up to Monday, November 2. Here's my list of Top 5 campaign destinations. President Trump
Trump visited 7 other states once each. Vice President Pence
Republican Candidate Total Visits
Vice President Biden
OK, that's six but it's my blog so there. Senator Harris
Democratic Candidates Total Visits
Combined Total Visits for Both Campaigns
Georgia gets an honorable mention with (4). What does all this suggest? The conventional wisdom is that Pennsylvania will decide the election. It appears the candidates agree with that assessment. Both Democrats will spend Monday in Pennsylvania. The biggest surprise to me is the Republican attention paid to North Carolina. It is extremely close and would be of immense help to President Trump if he wins there, which probably explains the Republican effort there. Only Harris visited NC on the Democratic side, but only once. Also a bit surprising is the last minute blitz in Michigan by both sides. Public polls show Biden with a substantial lead in Michigan, but neither side is acting like it's in the bag for him. President Trump makes a final campaign stop Monday afternoon in Traverse City. It's really pretty up there this time of year, but I suspect he's not flying in to watch the leaves change colors. After leaving Michigan, the president wraps up in Kenosha, Wisconsin. The Republicans will end up with four recent stops in Wisconsin against only one total for the Biden campaign. If the Democrats lose the presidential election, it's possible that following HRC's "don't worry, be happy about Wisconsin" approach will again be to blame. A cynic might suggest that President Trump's final stop in Kenosha is to throw a spotlight on the fact that riots can break out in small cities once best known for how boring they are. The cynic would likely be right. The even more cynical might suggest it's the smart play from the Trump perspective. So there it is. Keep an eye on NC, Florida, Pennsylvania, Michigan and Wisconsin. Fortunately, these important states are all in the Eastern or Central time zone, which gives the best chance of not having to stay up all night to find out what happened. Cheers! This post is rated "H" for "Honest." If you want reassurances that everything is going to be OK, this is not the post for you. If you want a hard-headed assessment of how to approach the problem, read on. Introduction Leadership requires sticking to the fundamentals. People are fearful because leaders both in the U.S. and around the world have failed to articulate the end goal of the COVID-19 response and therefore are imposing their plans on entire societies haphazardly. The leader's job is to determine the goal, formulate a plan, and inspire people to achieve the goal. Without a goal, a plan just leads to useless activity. "We must do something, this is something, therefore we must to this" is not good leadership. SMART goals are a common management and planning tool. Not all goals are equal. Good goals lead to real achievements and results, poorly stated goals lead to useless unproductive activity. The SMART goal technique helps us write goals that drive good choices that lead to the achievement of our objectives. Perhaps the most important feature of SMART goals is that they measure success and failure. We need goals that can tell us whether we won or lost, so that we know whether we've achieved our objectives or whether we need to re-evaluate and try again. Here's the SMART goal technique in a nutshell. SMART is an acronym:
"I will lose 2 pounds per week for 10 weeks. I will weigh myself every Monday morning to monitor my progress." This is much better. It's specific, it's not a general aspiration. It's definitely measurable. For most people, a couple pound weight loss per week is achievable. Let's assume losing weight would be relevant to good health as that would be true in many cases. If the person should not be losing weight, then this goal would not be SMART because it would go against our overall objective of good health. We've also set a deadline for losing 20 pounds. This SMART goal would then lead us to monitor our diet and exercise to lose weight throughout the week. If we are losing too much or too little, we can adjust as we go. If we are failing to meet the goal, we can then re-evaluate whether the goal is in fact achievable or whether we are doing something to keep ourselves from achieving the goal. Now we know a bit about SMART goals. Before we turn to COVID-19, I want to state a couple assumptions about the overall goal I have in mind. The government response to COVID-19 should aim to maximize the health outcomes for as many people as possible within the constraints reality imposes. The goal should not be to stick it to one's political opponents, which has for much of the last few months seemed to have been the actual goal. Good health is the strategic objective, not winning elections. [Yes, I know, I live in a fantasy world.] Applying SMART to COVID-19 Flatten the Curve. In the early response to COVID-19 back in March, experts and politicians told us the goal was to "flatten the curve." Here's Michigan's curve, with the purple line showing the number of hospitalizations, green showing ICU beds used, and blue showing ventilator demand. The straight lines, as indicated, show the capacity for regular hospital beds and ICU beds. The initial concern was that COVID cases would overwhelm the hospitals. People would become much more sick and even die because they could not be treated. Italy and New York City both encountered this problem in the early days of the outbreak. So let's state "Flatten the Curve" as SMART goals.
In April the green line rose above the ICU bed line. That's a problem. There are two ways to keep the green curve below the green line:
Increasing the supply of ICU beds in the short term is difficult, but our goal would suggest certain actions. We could beef up logistics to move patients from hard hit areas to less hard hit areas. We could deploy military mobile hospitals or hospital ships where necessary. All of that pretty much happened last spring. Where hospitals were overwhelmed, like in NYC, extreme steps were necessary to address the crisis. But then something happened. Things got better and the lines fell well-below the capacity lines. Promising treatments were developed. Death rates fell. A vaccine seemed to be just on the horizon. But the lockdowns continued in much of the country. Many people still could not go back to work. Schools remained closed or online. Some people started getting back to normal but others still saw a threat. Masks and various drugs became politicized. COVID fatigue set in. What is the goal now, here in late October 2020? That's not rhetorical, it's a real question. If flattening the curve is not good enough as a goal, what is the goal now? I don't think there's a politician in America who can answer that question. And if they could, they probably wouldn't say it in public. In the final debate, former Vice President Biden pointed to the roughly 220,000 COVID deaths to claim the President failed. President Trump retorted that the initial projections were for more than 2 million deaths. Who's right? No one knows, because no one set total deaths as a metric. Politicians can't say our best case scenario is, just to pick a number, 200,000 dead. We know the realistic number is more than 0, probably a lot more, but candidates for office don't want to be held to a number and anything more than 0 makes them look bad. We're now in a situation where we don't know how good the COVID-19 response to date has been. As we head into winter, the numbers are headed up again. Here's the latest projection for Michigan. The projected ICU line goes above the capacity line which is worrisome. SMART Goals Going Forward
Let's go down each of the SMART factors. Specific. Setting a specific goal is difficult, but I suspect it will be a heck of a lot easier after the election on next Tuesday. The office winners will have a bit of time where they can address the problem without worrying about what they do or say ending up in a campaign commercial for the other side. If anything, at this late date, we don't want to be so specific as to address COVID and nothing else. Many routine tests and screenings weren't done this spring, and some people became sick and even died from things that could have been cured if treated in a timely manner. Kids don't do well when they aren't school. They don't learn as much, get into trouble, and in troubled homes can suffer abuse. Families without their usual incomes face disastrous problems. The financial system will buckle if there are a large number of defaults. Enforcement of various mandates can multiply the number of police contacts with civilians, right at a time when people are rioting in the streets because they feel mistreated by the police. The list could go on and on. I present that parade of horribles to show that decision-makers can't act as if they are racehorses with blinders. They need to see the big picture, not just at COVID. Measurable. What measures can we use to set our goals?
The media focus heavily on the total number of cases. Although on its face that measure seems like a good measure, there are some problems. First, it includes people who have the virus but aren't sick. Second, the number of cases naturally goes up as we test more people. Third, there may be cases where people don't get tested even if they know they might be sick. It's not hard to imagine people not getting tested when they know a positive test will mean lost work and a two week stay in quarantine. Total cases therefore is of questionable value for decision-making. Another statistic I've seen thrown around is the percentage of positive tests. Presumably this is calculated by taking:
Again, this is a measure that's of dubious value because it's not clear what it's measuring. Lastly, we have excess deaths. In a large population, actuaries can predict with a high degree of confidence how many people are expected to die in a given year. One way to determine the danger of COVID-19 is to compare how many people would die under normal circumstances and how many died with the introduction of COVID-19. We can then infer that the excess deaths are related to COVID-19, either the disease itself or the response. Recent reports place the number of excess deaths at about 300,000. Documented COVID-19 cases are about 2/3 of that number. Are those excess deaths actually COVID deaths that weren't diagnosed as such? Or are they people dying of other things because they aren't getting their usual medical care? Are they suicides brought on by the stress associated with the disease and lockdowns? Is it something else entirely? I suspect that one day we may know the answers to those questions, but it won't be soon. I'd probably use this excess deaths number both as a check on the COVID-19 death figures as well as a canary in the coal mine to warn of whether the lockdowns are leading to more deaths. To sum up, the hospitalization figures are probably the best measures that can lead to meaningful action. Of the others, only excess deaths provides some useful information, but even then we probably need more detail to make a meaningful interpretation. Achievable. Here's where I'd really need to rely on the experts. If I were a decisionmaker, I'd want epidemiologists but also other kinds of doctors, psychologists, educators, and economists. I'd want my advisors to avoid tunnel vision and a diverse array of advisors should help provide the big picture. Here's what I'd want to know from my medical experts.
Also, we could change the composition of the people under the curve. If a certain number of people need to get infected, let's minimize the exposure of the most vulnerable. That means we protect the people most likely to need serious hospital care, such as the elderly or those with other serious medical conditions. If the answer is "no," then we need to know how we can manipulate that number. How do we reduce the number of people who get the virus? If a vaccine is just around the corner and will be available in time to make a difference, then our strategy becomes to play for time. We find ways to slow the virus down, perhaps even slow it down more than we would if the metric were only hospital utilization. This is probably where the leaders have the most difficulty. You can't run for office saying "almost everyone's going to get it." However, at some point leaders need to be honest so that people know what to do and what's being asked of them. We don't have that at this point. We also have to weigh a variety of costs. Shutting down businesses ruins the lives of the owners and the employees. Shutting down schools has an enormous long-term cost as we'll have a generation with sub-standard educations. We've seen the social and political costs as unrest spreads on both the left and right. All of these costs are constraints that must be weighed. Are shutdowns even a possibility now? Or will people just ignore them. If they do, are we willing to have mass arrests and incarcerations of otherwise law abiding people. Are we willing to take the casualties that will arise when we multiply police interactions? Would the police even enforce a lockdown if ordered? I'd think that a second lockdown will see far less compliance than we had in the spring. Relevant. Any goal we set has to be relevant to an overarching goal. The leaders need to state what we're trying to achieve. Is it overall health? Minimize deaths? Live with the virus as best as we can and go about life? Without that, it's impossible to set goals to guide action. Timebound. Any goals we set must have deadlines. Waiting for a vaccine to come some day is not good enough. We need to set a deadline for the vaccine and have a plan if it does not appear or proves ineffective. If the vaccine does not save us by then, then we have to proceed accordingly. Conclusion After all that, what goals should we set? If we conclude that in reality "most everyone's going to get it" then we stick with flattening the curve but add that we're going to change the composition of the curve.
What if we believe a vaccine can be deployed in a few months?
If handwashing, masks, and social distancing can get us 80% of the benefit (which might be the case), then don't destroy people's lives and livelihoods and end their freedoms to try to get the last 20%. Pick an achievable SMART goal and find the most efficient way to achieve it. President Trump trails former Vice President Biden in both the national and battleground polls, but it's possible that the President's support is understated as it was in 2016. Why do some believe Republicans might over-perform once the votes are counted?
Real Clear Politics not only gives you an electoral college map with their predictions, they also provide one where you can play with it yourself. I asked myself how much ground would Trump have to make up to win. Here's what I came up with. Here's the RCP map that leaves swing states in grey. Biden has a big head start based on his safe states. RCP Map Without Assigning Swing States Here's the RCP map with no toss ups. All the swing states are assigned based on their latest poll averages, no matter how close they are. This yields a Biden blowout. No Tossups So is it really over? Suppose some combination of shy Trump voters, better ground game, and Biden being Biden leads to Trump over-performing by 3 points in the swing states. It's closer, but still a decisive Biden victory. Trump Overperforms by Three Points How about a 4 point swing? Trump Overperforms by Four Points That's close, but not quite. If we give Trump an extra 5 points in every swing state, that puts him over the top. That's what it takes to shift the big prize of Pennsylvania. Trump Overperforms by Five Points Moving from +4 to +5 adds Wisconsin and Pennsylvania to the Trump column. If Trump were to win Pennsylvania but not Wisconsin in this scenario, he still wins. However, what if he picked up Wisconsin but failed to win Pennsylvania? Trump Overperforms by +5 Except He loses Pennsylvania So if Biden manages to lose Pennsylvania, it's not crazy to think it could all end in a tie. That would throw the election over into the new House of Representatives.
I don't envy a president who wins under those circumstances. It's valid under the rules, but it's kind of like winning a sports league by a coin toss. I should mention one other little assumption. Nebraska and Maine don't have winner take all systems for assigning their electors. I just split those between the two candidates, but it's possible those single votes could be decisive. Assuming the election proves closer than the polls currently indicate, Biden had one job--don't blow it in Pennsylvania. Don't say anything to threaten Pennsylvanians and it's in the bag. Easy, right? Biden blundered by telling the truth about his plans for the oil industry, as Pennsylvania is a big energy producing state. Ohio and Pennsylvania coal miners probably also took note. I've said for the last four years that the Democrat message needs to resonate in a Michigan UAW hall. They need to win back those Obama-Trump voters. How hard can that be, it's a freaking union hall for crying out loud? Calling for the abolition of the internal combustion engine is probably not the right message for a bunch of car guys. But they don't listen to people like me. On election night, watch Pennsylvania. It's the most important state. the Just when you think it can't get any weirder, a group of Michigan men were arrested for allegedly plotting to kidnap Governor Whitmer. Their goal, according to the government's allegations, was to put her on trial for "treason" and presumably execute some sort of judgment upon her if found guilty. The government further alleges they scoped out her vacation home as a place to grab her and were planning to buy explosives to allow them to blow a bridge enabling their escape. According to the allegations, this would lead to a revolution overthrowing the government.
No, I didn't make that up, although it kind of sounds like I did. Fantasy worlds are fine, I suppose, until belief in them leads to harming others. Just in case you didn't know, Call of Duty is a video game, not reality. I flipped on the TV yesterday and there were flashing lights at a house, with the dateline "Hartland, MI" showing up on the screen. Hartland is in Livingston County, right in MCC's backyard. Hartland is just south of Fenton on US 23. This kind of thing can happen right here, not just in the middle of nowhere on the other side of the world In my new text which I'm using for the first time this semester, I spend a good deal of time in Chapter 1 on the ideas of the rule of law and legitimacy. I believed it necessary because these norms were once so built into our culture that we didn't even need to talk about them, but I don't think that's true anymore. If it's true there are would be revolutionaries running around Livingston County, it's further proof I'm right. I want to arm my students with the vocabulary needed to explain why the rule of law and legitimacy are so crucial to civilization. Let me put on my law professor hat for a bit. Legitimacy comes from following the rules society has established. No one doubts Michigan followed the proper procedures in establishing its constitution and election rules. No one doubts Governor Whitmer was duly elected under those rules. I'll be the first to say that Governor Whitmer should have worked with the legislature in managing the pandemic, although in her defense she was exercising power under statutes that are on the books for all to see. Her actions would have been far more legitimate if she abided by the basic norm of separation of powers. Heck, that would have the advantage of her being able to share blame for the devastating effect of her lockdown orders with her Republican opponents. They might have done her a favor by saying no to the whackier rules she imposed. The beauty of checks and balances is that when a government official gets out of line, the other branches can check her. In the case of the lockdown orders, the legislature checked Governor Whitmer by not agreeing to granting her further unilateral power. The Supreme Court struck down her orders as they violated separation of powers. She'll now have to find another way, which I expect will mean making a deal with the Republican legislature. That's the way it's supposed to work. Here's how it's not supposed to work--form a gang, kidnap the Governor and put her on trial. The Michigan Watchmen don't get to decide what's treason or hold show trials or execute judgment. Did you get to vote for the Michigan Watchmen? I must have missed that, because I don't remember that election happening. If Governor Whitmer doesn't follow the law and constitutions, then the courts and legislature can check her. They both did that. In two years, the voters of Michigan will also get to decide whether to end her power. That's how it's supposed to work. Kudos to law enforcement who apparently stopped something really awful from happening before anyone got hurt. TheGovernor Gretchen Whitmer and her team need to go back to the drawing board in their COVID-19 response. The Michigan Supreme Court ruled that her executive orders violated one Michigan statute and that another statute was unconstitutional. Unless she concocts another theory to act unilaterally, it appears she'll have no choice but to negotiate with the Republican legislature to enact further COVID-related regulations. She should heed the advice of Don Rickles' character at the end of Kelly's Heroes. Here's the Reader's Digest version of what happened in the opinion, which exceeds 100 pages in total. Michigan has two statutes granting the governor expansive powers to act unilaterally in response to an emergency. The first is the Emergency Management Act of 1976. This law allows the governor to declare a disaster which gives her special powers to act to manage the emergency. After 28 days, she is required to either declare the disaster over or request an extension from both houses of the legislature. Governor Whitmer issued orders pursuant to this law and requested and was granted extensions of her emergency powers up to April 30. After that, she did not obtain further extensions. The second is the Emergency Powers of the Governor Act of 1945. This statute also grants the governor extraordinary powers during an emergency but does not have the deadline provision of the 1976 act. It empowers the governor to issue "reasonable orders" "necessary to protect life and property" for the duration of the emergency, no matter how long the emergency lasts. Governor Whitmer's orders after April 30 rely on this provision. All seven justices agreed that Governor Whitmer could not act under the 1976 act without further authorization from the legislature. The deadline could not be more clear and she hasn't done what the statute requires. By a 4-3 vote, the justices struck down the 1945 act as unconstitutional. Separation of powers requires laws to be made by the legislature, not the governor acting alone. The statute's guidance that the governor act "reasonably" to make "necessary" orders is not enough guidance to properly delegate. The three dissenters disagreed, arguing that there was enough guidance. Take a step back and consider the governor's position. She argues that under the 1945 act she can impose fines on individuals and businesses without a vote by the people's elected representatives in the legislature. She can do this to the end of her current term and for another four years after that if reelected. Her orders, among other things, have ordered people to stay in their homes, closed businesses across the state, closed churches or severely limited worship attendance, and generally intruded on every aspect of life. That she can continue to do that without legislative input is a pretty extreme position. Sometimes you have to stick to the basics. Legislatures pass bills and governors sign them into law. That way no one gets too much power. That's what the majority is saying. So what can Governor Whitmer do. She's likely exhausted all her options in court, which limits her other choices. She has said there are other statutes which still apply. I suppose she could do something cute like declaring a new emergency to start the clock running again, but I suspect a court would not go for that in light of this ruling. But she's most likely going to have to make a deal. The governor says she has 21 days before the Supreme Court's ruling takes effect, which gives her a little room to maneuver before she's left with no orders whatsoever. Here's how it's supposed to work. Governor Whitmer will propose an extension and the Republicans in the legislature will gripe about it. She'll put their feet to the fire as there is an election in a month. They'll come up with a counter-proposal, which she'll whine about it. Her party also faces an election and they won't want to take the blame for having no COVID response. Then they'll get together and pass some kind of deal granting Governor Whitmer emergency powers but limiting her more extreme tendencies. Like I said, that's how it's supposed to work. But it's 2020 and nothing seems to work the way it's supposed to work. I don't envy the college's administration. They've spent tremendous amounts of energy trying to comply with the orders and guidance they've received from the state. All of that is now in doubt. They'll certainly ask for guidance from Lansing as to what they need to do to best protect the students and employees of the college. I guess that's why they get paid the big bucks. I had a student write to me this morning asking about the 25th amendment to the Constitution in light of President Trump's illness. The 25th amendment governs what happens if President Trump cannot carry out his duties. As I write, I'm watching the news on TV. There's the president's helicopter waiting on the White House lawn waiting to take him to Walter Reed Hospital.
What happens if the president cannot carry out his duties. For example, what if he needs an operation where he needs to be sedated? Section 3 allows the president to state he cannot carry out his duties and turn power over to the vice president. When he gets better, he gets his power back. President Reagan did so when he underwent a colonoscopy and George W. Bush did likewise twice for the same kind of procedure. Surprisingly, the 25th amendment was not invoked when President Reagan was in the hospital after being shot. Section 4 has never been invoked before. It comes into play if the president is unable or unwilling to hand over power via Section 3. Section 3 allows the Vice President plus a majority of the cabinet to declare the president incompetent. The president can then request that his power be restored. If there is opposition, Congress would vote on whether to restore the president. I'll say a little prayer for President Trump, his family and the country. It's been a rough year, we don't need it to get any rougher. The Star Trek future of 2021 is upon us. Here's my schedule, which is subject to change, so far. All sections are purely online.
I don't know when registration will open. But I thought you'd like to know my winter schedule so you can start planning to either take one of my classes or avoid me.
I can do one more class, which leaves some wiggle room to add another Business Law I or Organizational Behavior if necessary. Once registration opens, if a section is full sign up for th waitlist. If we get enough students on the waitlist, we'll add another section. In the age of the pandemic, my experience of time has become more and more elastic. It's hard for me to believe, but it was only five days ago that President Trump appointed Circuit Court Judge Amy Coney Barrett to the Supreme Court.
So how does this all work? The President's constitutional powers are set forth In Article II. There, we find the appointments clause which in relevant part reads: "... and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court. . ." That's it, that's all that's constitutionally required. In theory, the president could nominate a person and the Senate could vote with no further ado. The Senate usually doesn't work that way and won't this time. Most of the time before a Senate vote on a nominee or a bill, one or more committees will hold hearings and then vote on whether or not to send the nominee or bill on to the full Senate for a vote. The committees act as a filter to limit the number of matters the full Senate has to deal with. Senate committees are therefore a critical center of power. The party with the most Senators, at this time the Republicans, gets to appoint all the chairs and gets to have a majority on every committee. The Senate majority party therefore controls the agenda for the full Senate if they act in unity. As former Speaker of the House Tip O'Neill put it, I'll let you make all the laws if you'll let me make all the rules. I'll win every time. The Senate Judiciary Committee will begin hearings on the Barrett nomination on Monday, October 12. Barrett will face questioning on the 13th and 14th. Senator Graham, the chair, stated he expects a report out to the full Senate around the 18th. Given that Senator Graham has a 12-10 majority of Republicans on the Judiciary Committee, he only needs to keep his own party members onside to send Barrett on to the Senate. So where does that leave us? We have a Republican president who nominated a presumably conservative judge a few weeks before a presidential election. We have a Republican majority in the Senate (53-47). We have a Republican Judiciary Committee. When it comes to a full vote, there's one more constitutional rule to know. If a Senate vote is tied, the Vice President can cast a tiebreaker vote. So if three Republican Senators vote "no" and the Democrats can keep all of their Senators as "no" votes (a big if!), VP Pence would likely vote to confirm. Likely Republican "no" votes include Lisa Murkowski of Alaska and Susan Collins of Maine. Other wobbly Republicans have indicated they're on board for the confirmation. On the Democratic side, Joe Manchin of West Virginia might vote "yes." Given all that, what can the Democrats do? Not much. The Republicans hold all the cards here. However, the Republicans have a long history of wetting their pants in terror of important controversial votes. And the Democrats know it. So far, their scattershot approach has been:
My guess would be that the Republicans will hold together and confirm Barrett. The most dedicated Republican supporters will go into full freak out mode if they don't. For a lot of Republicans, the Republican Party exists to confirm conservative judges and little else. Even the most middle of the road Senators know this. The Democrats' whining and moaning won't likely stop the nomination, but could have a major impact on how people vote in November. Democrats will have to make the political case that the Republicans appoint bad judges and cheated to get Barrett onto the Court. If Barrett is confirmed and the Democrats win both houses and the presidency, I don't expect them to blow up the filibuster or pack the court. Even Franklin Roosevelt couldn't get that done and they won't have anywhere near the majority or popularity he had. Senators take the long term view and many Democratic Senators will want the filibuster around when the Republicans inevitably take control of the Senate again. Also, a packed Supreme Court would lose its legitimacy as a wise, non-partisan branch, meaning that progressives would lose their main means of imposing their project on America. I expect they'll have to do what the Republicans have done, which is focus on developing a pipeline of judges and prioritizing confirmations. For Republicans, that's been a 60 year project and that's might be what it will take for the Democrats. |
Christopher J. EngeEducator. Entrepreneur. Attorney. Author Archives
January 2022
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