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  • The Limits on Governing in a Biden Presidency

The Limits on Governing in a Biden Presidency

William L. Kovacs

November 2020

The Limits on Governing in a Biden Presidency

If the winner of the 2020 presidential election is Joe Biden, the real question is – what exactly can he do to govern the country? Can he form a government that works for citizens or is he locked into a political system he helped form in over forty years in the DC swamp?

Biden is likely to exercise the powers of the presidency with a majority Republican Senate, run by Mitch McConnell, a master of Senate strategy. McConnell’s Senate is the graveyard for Democrat nominees and legislation, e.g. judge Merrick Garland, multi-trillion-dollar House of Representative’s Coronavirus relief plans. McConnell’s Senate can literally block all of Biden’s judicial nominees and cabinet officers. If however, Democrats win the two Georgia Senate seats in the January 2021 run-off elections, this scenario flips on its head. The filibuster is eliminated and more social legislation will be passed in the next two years than was passed during Franklin Roosevelt’s presidency. My assumption is that the Republican party will keep control of the Senate.

Even the Democrat-controlled House of Representatives lost several members from its majority. In fact, Democrats lost six seats and failed to defeat any Republican incumbents. What should be most concerning to a Biden presidency is how to fund the government. The temporary budget expires on December 11, 2020, and the Senate has not passed any of the appropriation bills. At worst, another government shutdown. At best there will be a temporary appropriation that moves the funding problem from the Trump to the Biden administration.  A Biden presidency is unlikely to get much, or any, of its Democrat wish-list, e.g. funding for state pension plans, additional funding to address climate change and infrastructure, or tax increases on those earning over $400.000 a year.

There are a few issues a President Biden could put into motion without Congressional assistance. He could rejoin the Paris Climate Agreement that President Trump withdrew from. As an Agreement, not a treaty, he does not need Senate advice and Consent. Presidential Agreements are as solid as wind and change with administrations. President Biden could also remove the tariffs on China imposed by Trump to benefit consumers’ pocketbooks.

Going across the street from the Capitol, there is a six-to-three conservative majority on the U.S. Supreme Court. How it rules on ObamaCare is only one of the Democrats’ concerns. The Supreme Court will have the power to review all regulations issued by Biden’s administration. Regulatory power is the one power presidents can freely exercise without Congress. Moreover, Biden will likely reverse many of Trump’s deregulatory environmental actions, specifically Trump’s rollbacks of water and wetland regulations, the disposal of mining waste, the Clean Power Plan and almost one-hundred other Obama issued regulations.

A majority conservative court, however, can severely keep in check expansive new regulations and de-regulatory actions it believes not to be “reasonable.”

A President Biden may find some Trump inflicted pain before even being sworn into office. Trump may persuade Attorney General Barr to appoint a special counsel to investigate Hunter Biden’s alleged illegal Burisma activities. After being sworn in it will be difficult for Biden to personally stop a criminal investigation of his son after taking an oath to faithfully execute the laws of the U.S.

Biden’s revenge maybe for the U.S. Attorneys in the Eastern and Southern Districts of New York to open investigations of Trump, especially on alleged tax fraud and money laundering. When exercising the powers of government, opening an investigation of Trump’s tax filings would be as easy as sending a birthday card.

The final and most serious attack on the Biden presidency might come from Donald Trump himself. Trump is not leaving the grand stage quietly. He will do something “big,” “loud,” and “highly critical” of the Biden administration. Trump will be the resistance leader against high taxes, over-regulation, and programs that move the U.S. toward socialism. Perhaps Trump will start the often discussed Trump News Network. It is estimated he has a combined social media following of 87.7 million followers. Fox News only has 3.6 million viewers and the other channels have far fewer viewers.

Trump would dominate the news during a Biden presidency. Under such withering, constant criticism, Biden would have to work with, around or in conflict with, a hostile Senate, a conservative Supreme Court, almost half the nation disagreeing with his policies, his son under criminal investigation, and a 24-hour news channel actively organizing opposition to his presidency.

At a time when Biden will need help from every person capable of giving it, the radical left will push him further and further to the left, leaving him “hung out to dry.” A nightmare for Biden would be for Speaker Pelosi to lose the speakership to a far-left progressive. Unlikely, but worth noting as a possibility.

Trump believes Biden, the FBI, and others in the Obama administration, engineered attacks on him before he was even sworn into office. He believes they continued the attacks for his entire presidency. They manipulated events to have a special counsel to investigate him. They impeached him. There was not a day President Trump was not attacked by his enemies.  Biden will likely be subjected to similar working conditions in his White House.

Welcome, President-elect Biden to American politics 2020.








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  • Dr. Franklin, You Will Soon Know If We Remain a Republic 

Dr. Franklin, You Will Soon Know If We Remain a Republic 

William L. Kovacs

October 2020

Dr. Franklin, You Will Soon Know If We Remain a Republic 

Dear Dr. Franklin:

In troubled times we are reminded that after the Constitutional Convention, you were asked what type of government do we have, a Republic or Monarchy?  Your reply, “A republic if you can keep it,” is as profound today as it was in 1787. Over the centuries, Americans have been fortunate to have leaders who strove to keep the nation together. With the leadership of Lincoln, Roosevelt, and Truman we survived a civil war, world wars, and depressions.

We no longer have American leadership. We have only political leadership; “leaders” who win by dividing us. Voters are merely commodities that accept political promises in exchange for their votes.

Democrats want to mindlessly flood the U.S. with mail-in ballots that can be completed by anyone and delivered where needed.

President Trump urges supporters to vote early (by mail) and often (in-person). His Postal Service is restructuring operations (slowing down delivery) in 17 postal areas with 151 electoral votes. Yet, he accuses Democrats of stuffing ballot boxes and destroying ballots. He refuses to commit to a peaceful transfer of power should he lose.

Both parties believe chaos works to their advantage. Both parties refuse to renounce violence should they lose. Trump tells fringe groups “stand back and stand by.” Democrats claim the militant Antifa, a group that burns down cities, are peaceful protesters.

President Trump seems to welcome the opportunity to use force against any civil unrest. The Democrat presidential nominee seems to view the use of force against his supporters as a real sign that Democrats are fighting fascism.

With tens-of-millions of mail-in ballots being cast, official counting may extend beyond the December 14, 2020, electoral college voting deadline. Lawsuits will challenge millions of ballots, all to ensure a “fair election.” So far, 399 election lawsuits have been filed over when ballots must be counted, location of polling places, ballot drop boxes, poll watchers.

Both presidential candidates see different paths to victory. Biden’s path is through loose voting standards and friendly state courts, e.g. PA (extra time), OH (extra drop-boxes.) Trump, like President Bush in 2001, views the U.S. Supreme Court as his ticket to victory.

Three likely scenarios are unfolding.

Biden wins by turning out a vote so massive it cannot be seriously challenged in court.

Trump wins by creating such significant chaos that his conservative Supreme Court must again act as a Super-legislature to “save the nation.”  Bush v. Gore, is the perfect example. The five Republican members of the court usurped Congress’ power to elect the president when it blocked the Florida Supreme Court’s order authorizing recounts. By ending the recount, the court elected Bush as president.

If there are disputed electoral votes, Trump will ask the court to set aside the laws of those states and award their electoral votes to him. This time, however, there are six Republicans on the court.  Three of the justices, Roberts, Kavanaugh, and newly appointed Barrett, were part of the Republican legal team in Bush v. Gore. They know how to use the court to elect a president.

By rushing the appointment of Barrett, in the middle of a presidential election, it looks as if Trump gave her the job so she can vote to let him keep his job. Should Justice Barrett, not recuse herself, and Justice Roberts abandons the president, she will determine the next president. A similar situation happened this week when the U.S. Supreme Court deadlocked 4-4 on a Pennsylvania case involving the time for counting ballots.

If Barrett’s vote elects Trump, the resistance will firmly believe the election rigged. This will be their reason for massive resistance. It will be Trump’s reason to designate these groups as “terrorists” and use the military to “restore order.”

The third possibility is to follow the Constitution and federal statutes governing the election of the president in a disputed election. It is difficult to manipulate this process.

Election disputes usually arise when one candidate has a small vote lead but the other candidate alleges that if certain votes are counted/discounted, he/she would win. The determining factor in 2020 is whether disputes can be resolved before December 8, 2020. If disputes are resolved within that time period, the selection of electors is “conclusive” and must be accepted by the next Congress, starting January 3, 2021.

Electors from states with unresolved disputes will be resolved by Congress in accordance with federal statutes.  In separate proceedings, each House must decide which set of state electors to certify. If the House and Senate agree on a slate of electors, the slate is certified. If the House and Senate cannot agree, the electors certified by the Governor of the state are counted.

After certifying contested elector slates, Congress counts the electoral votes. If one of the candidates receives 270 electoral votes, that person shall be president. If no person has a majority of electoral votes, the House, voting by state, each state having one vote, votes to elect a president. The person receiving votes from a majority of states is the president.

Which party benefits from this dispute resolution process? Currently, Democrats control the House however, Republicans in Congress hold majorities in 31 state delegations and 26 governorships. In seven swing states (AZ, FL. IA, MI, MN, PA, WI), Democrat’s hold majorities in 4, Republican’s 2, and PA is tied. Republican governors in swing states hold a 4-3 advantage. Guessing who wins is Shear Madness!

There is no time frame for completing the process, thus the need for the Presidential Succession Act which establishes a line of succession to ensure the nation is never without a president. Trump’s term would end on January 20, 2021, and an acting president would serve until Congress elects a president.

Dr. Franklin, to continue as a Republic, citizens must view the election outcome as fair and legitimate. This requires the Supreme Court to extend deference to Congress and state legislatures in this most political of political matters. The presidential candidates must be gracious and peaceful in transitioning power or accepting defeat, otherwise the resistance and the armed militia, as proxies for their candidates, will fight for their version of a Republic.

Who knows what type of government we will have after such conflict?

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  • Politics Will Destroy 200 Years of Expanding Voting Rights

Politics Will Destroy 200 Years of Expanding Voting Rights

William L. Kovacs

September 2020

Politics Will Destroy 200 Years of Expanding Voting Rights

Politicians have voting “ass-backward.” They believe voting is about them and their exalted role as our “rulers.” They believe voters are cheap commodities that pay taxes so the government can give their money to its friends.

It is highly likely that politicians will screw up the 2020 presidential election. Republicans want us to vote early (by mail) and often (in-person). Democrats want to mindlessly flood the U.S. with blank ballots that can be completed by anyone. Both sides believe chaos works to their advantage.

Nothing can be further from the truth! Voting is too important to be determined by politicians.

Voting is for citizens to choose fellow citizens to operate their government for the sole benefit of citizens. Voting is the only tool a citizen has to control a government with massive powers that can be used against us.

In the 2020 elections, officials may be unable to count all the mail-in ballots before the electoral college voting deadline of December 14, 2020. Lawsuits will challenge millions of ballots for every minor deviation, e.g. smudges, signatures looking different than ten ago when one registered. These challenges will all be in the name of a “fair election.”

Perhaps Democrats believe Biden can be selected president by the 2021 House of Representatives. The Republicans may believe a repeat of 2000 elects Trump, since only the nine members of the U.S. Supreme Court vote. Whoever is selected, elected or ordered to be president will be perceived illegitimate by at least half the country. Worse, citizens’ belief in the integrity of the voting process will be destroyed. Such harm will rot the nation!

A brief history of voting places its importance in perspective

The right of citizens to vote is merely a cryptic mention in the text of the Constitution, requiring the House of Representatives “…be chosen every second year by the people of the several States.” Initially, citizens did not vote for Senators; they were elected by state legislatures. Citizens still do not vote for the president, that is the job of the electors selected by state legislatures. Judges were never elected; they are political appointees.

The U.S. Supreme Court explains, the Constitution “does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.” Politicians and courts determine who is qualified.

“The U.S. Constitution did not originally define who was eligible to vote, allowing each state to determine who was eligible.” After several centuries of living under our Constitution, we the people are still expanding the list of “qualified voters.”

Voting is really a question of power – if one can vote, one can influence how the government works. Since the beginnings of this nation, those possessing the legal right to vote fought to preserve their power to rule by preventing others from securing the right to vote.

Initially, only white men with a certain amount of property could vote. Beginning in the 1820s property requirements began to recede for all white men, including white immigrants. After the Civil War, the 13th, 14th, and 15th Amendments to the Constitution abolished slavery and guaranteed citizenship to all born or naturalized citizens.

These rights were short-lived in that after the election mess of 1876 (Tilden v. Hayes), Democrats traded the presidency away for the removal of northern troops in the South, thereby disenfranchising free blacks through poll taxes, literacy tests, Jim Crow laws, Black Codes and military-style hate armies such as the White League, Red Shirts, and the KKK.

In the late 1880s, Native Americans were gradually given citizenship and the right to vote. In the 1920s women secured the right to vote. In the 1940s Chinese immigrants were given citizenship and the right to vote.

In the 1960s, with the enactment of new Civil Rights laws, many of the restrictions on black voting were made illegal. Eventually, with the draft and the war raging in Viet Nam, the 26th Amendment to the Constitution was ratified giving citizens 18 to 21 years of age the right to vote. The chant at the time was “Old enough to fight, old enough to vote.”  In 1986 citizens living overseas on military bases were given the right to vote.

The struggle for voting rights continues

The struggle to secure the right to vote continues today over access to polling stations, long lines and limited hours to vote, the security of mail-in ballots, voter identification, accommodations for the disabled, seniors, the homeless, felons, and for minorities, especially in poorer communities.

Historically, it is the government that restricts voting. Voting is a struggle because it is immensely important to those holding the power to rule us. The outcome of voting determines who will make and enforce our laws, the amount of tax we pay and who pays, who gets services, who goes to jail, and who remains free for committing the same “crime”.

How voters feel about government and what they can do about it

Polls tell us 71% of likely voters believe the U.S. is on the wrong track. Yet, in 2016 only 139 million citizens out of 250 million citizens of voting age, a 55.7% turnout. That means 111 million eligible voters did not care enough about what the government is doing to vote. The low percentage turnout shows disrespect to all who fought over the centuries to secure for us, the right to vote. These non-voters are invisible citizens at a time when every citizen must be counted.

To all eligible voters – be relevant – Vote in the 2020 election. Minimize the tendency of government to screw up the election by taking time to follow the directions, if voting by mail, and vote as early as you can to take the stress of the system. Urge your neighbors to vote. Be a poll watcher. Citizens, always keep in mind – if you do not vote for the government you want, politicians will impose on us what they want.

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  • Presidential Succession Act: Can Congress Manage Chaos?

Presidential Succession Act: Can Congress Manage Chaos?

William L. Kovacs

August 2020

Presidential Succession Act: Can Congress Manage Chaos?

The 2020 Presidential election may test the competence of Congress to manage the Republic. The House has elected two presidents when no candidate received the required number of electoral votes; 270 today. What happens, however, if on January 20, 2021, a president has not been chosen due to states being unable to certify a sufficient number of electors?

President Trump openly admits blocking funds for the Postal Service to hinder voting by mail; declaring a “rigged election.” Democrats spin “post-office conspiracies” to secure trillions more dollars for supporters. Meanwhile, the Postal Service warns states mail-in deadlines are too short to ensure ballots are received in time for counting. These actions are a recipe for intentionally inflicted electoral chaos.

The challenge is whether our “leaders” can work for the nation? A Congress that cannot pass regular appropriation bills, may have to immediately implement several constitutional provisions, the Presidential Succession Act, and maybe House Rules for developing a quorum in a “catastrophe” so it can do business.

Wading through the swamp requires meeting immovable deadlines:

  1. November 3, 2020, election day.
  2. December 8, 2020, resolving election disputes.
  3. December 14, 2020, electors cast ballots.
  4. December 23, 2020, president of the Senate receives electors’ ballots.
  5. January 3, 2021, House elects the Speaker.
  6. January 6, 2021, Joint session of Congress counts electoral votes.
  7. January 20, 2021, new president is inaugurated.

Meeting the deadlines depends entirely on states timely certifying presidential electors and members of Congress.  California counts ballots for 17 days after the election. In recent primaries, it took California 30 additional days after its deadline to count ballots. Complex litigation in several states will follow final ballot counts. On this timeframe, California, with 55 electoral votes, likely misses deadlines for resolving election disputes and electors casting ballots. It is also home to Speaker Pelosi, whose term ends on January 3, 2021.

California, and nine identified toss-up states having 135 electoral votes, could prevent up to 195 electoral votes (36% of all votes) from being certified for a substantial period of time. The only certain result is, at noon, January 20, 2021, President Trump’s term will end as mandated by the Twentieth Amendment.

The Twentieth Amendment and its implementing legislation, the Presidential Succession Act and House rules, start coming into play around January 3, 2021, when the House must have a quorum, 218 members, to do business, i.e. election of the Speaker and the counting of electoral ballots on January 6, 2021.

The House is likely to have a quorum, since most states will be able to certify electors and members of Congress by January 3, 2021. The current House leadership, however, (Pelosi and McCarthy) could be tied up in California’s delayed vote counting.  If they have not been certified winners, they cannot be sworn in to the new Congress.

If the House cannot secure a quorum, its precedents allow the past Clerk of the House to organize the House by securing a quorum under the “Catastrophic Circumstances” provision in House rules.  This is a multi-step process to find, identify, compel, and report the status of members. When the process is complete, the quorum requirements are lowered to reflect the House’s smaller membership. If the House can complete this process before January 20, 2021, and elect a Speaker, the Speaker is first in line to be acting president.  The House can elect anyone Speaker since the Constitution does not require the Speaker to be a member of Congress.

If a president has not been chosen by inauguration day, The Presidential Succession Act provides  “… the Speaker … shall, upon … resignation as Speaker, and as Representative in Congress, act as President.”  If “…there is no Speaker … the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.” It appears unresolved how long the Senate must give the House to secure a quorum and elect a Speaker. Another opening for a constitutional mess.

The acting president serves until the House is able to elect a president.  To elect a president the Twelfth Amendment requires the House vote by state, each state having one vote, and that a quorum must be present consisting of members from two-thirds of the states and the majority of all the states shall be necessary to choose a president.

Details will matter. Congress needs to prepare, now. Hopefully, Congress recognizes elections are for citizens to choose their leaders, not for politicians to gain advantage from chaos.

This article was first published by The Hill on August 18, 2020

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  • Could the House of Representatives Select the Next POTUS?

Could the House of Representatives Select the Next POTUS?

William L. Kovacs

March 2020

Could the House of Representatives Select the Next POTUS?

After the Sanders big primary win in Nevada last week, Democrats are deeply split on a nominee and again, may not be willing to accept the candidate voters select. Billionaires are promising to spend whatever money needed to defeat President Trump. President Trump insists on inflicting political wounds on himself. Millions of people are moving out of blue states, to red states, which changes the composition of voting populations. Quirky Constitutional provisions apply if no candidate secures 270 electoral votes.

We are facing the possibility of the next President being selected by the House of Representatives. This has happened twice before, 1800 and 1824.

How might this happen?

First: another rigged Democratic convention. The Sanders’ campaign and its supporters are still angry over losing the 2016 nomination to Hillary Clinton. In the fight for the 2016 nomination the Clinton campaign literally bought the Democratic National Committee (“DNC”) by paying off the party’s large debt. This gave the Clinton campaign control of the staff and final decisions of the DNC, notwithstanding that the DNC was obligated to remain neutral in the primary. Should Sanders go into the 2020 convention with the largest number of delegates, and again be denied the nomination, a political civil war erupts in the Democratic party.

Second: if Sanders is denied the nomination a second time, he runs on the Green Party ticket or as an Independent.  Sanders, like President Trump, has aggressively loyal followers. To quote an opinion article in the New York Post, “Hell hath no fury like Bernie’s millennials if they are thwarted.”  Like President Trump, Sanders is taking on the establishment as a political outsider. With this loyalty from supporters that constitutes 30% plus of the Democratic base, decades of fighting the establishment, strong credentials with environmental groups, especially on climate change, and a having a great money raising machine, Bernie Sanders can quickly launch a viable third-party movement. This is all possible since the Green Party convention is July 9-12, 2020 while the Democratic Convention is July 13-16, 2020. Sanders will know of his chances for the nomination by then and could quickly switch parties.

Third: Sanders can win several states and secure electoral votes. Sanders won eight states in the 2016 primary that Democrats won in the general election. Of these states, Sanders won NH, VT, ME, RI and WA with over 60% of the vote. These states have 26 electoral votes. Winning a few of these states could, in a close election, deny the Democrats the 270 electoral votes needed to win.

Fourth: California’s population loss could be the Republican’s albatross. California has lost over 691,000 people in 2018. Texas was the destination of choice by 86,164 people followed by Arizona 68,516, Washington, 55,467, Nevada, 50,707. Oregon, Colorado, Florida, New York, Virginia and Idaho were also recipients. These new residents bring their liberal beliefs with them. Arizona is the key state having 11 electoral votes. Trump won Arizona in 2016 by 91,000 votes while Krysten Sinema, a Democrat, won the Senate seat in 2018 by 56,000 votes. These new 68,516 transplants in Arizona could give the electoral college votes to a Democrat. Also Trump won four of the larger states by small margins, i.e. Michigan (0.3%), Wisconsin (1%), Pennsylvania (1.2%), Florida (1.2%). These margins are so small that they can be impacted by the placement of the candidate’s name on the ballot, i.e. being listed first is a 5% advantage.

Fifth: with, at least, 37 uncertain electoral votes, a third-party winning only a few of them, is eligible, to be selected president by the House of Representatives. If none of the candidates receive 270 electoral votes, the House of Representatives elects the next President. The House will choose from the top three candidates receiving electoral votes. In this case, each state delegation in the House of Representatives, has one vote. In the current Congress, 26 state delegations are controlled by Republicans, 23 by Democrats and one state delegation (Pennsylvania) is a 50-50 split. But the current Congress will not decide the matter. The newly elected members to the House of Representatives in November 2020 will make that decision when the 117th Congress starts in January 2021.

Sixth: the variables cannot be controlled.  With an almost even split between state delegations, the migrants from California and other blue states might make a big difference, depending on which congressional districts they move to. Moreover, the Constitution does not bind electors to vote in accordance with the winner of their state’s vote. This freedom is limited in 32 states however, in 18 states the elector is free to vote however, it desires. In several restriction states, there is no penalty for voting against the candidate their state, i.e. FL, OH, WI. Finally, the ballots cast to determine the position of each state’s delegation are secret ballots and none of the members of Congress have any obligation to vote party line.

If none of the candidates secure the 270 electoral votes needed to win the presidency, it will be a very unpredictable process, especially if a third-party candidate receives electoral votes, making the candidate eligible for election by the House. The outcome will be determined by who moves to what congressional districts and which Republicans, Democrats or Independents, like or dislike, the President enough to vote for a for the candidate of another party.

Such a situation would be the epitome of intrigue!

This article was first published in The Libertarian Republic,  February 26, 2020.