The 2020 U.S. presidential election: HLS faculty and scholars weigh in

A hand wearing a surgical glove holding an absentee ballot with blurred images of USPS mailboxes in the background.

Credit: iStock/Bill Oxford

HLS faculty and legal scholars consider the legal concerns and challenges that have emerged—including those involving COVID-19 and voting by mail—as the United States prepares for the 2020 presidential election.

The following selection of their articles, interviews, and op-eds will be updated regularly.


Disinformation, QAnon efforts targeting Latino voters ramp up ahead of presidential election

Disinformation targeting Latino communities is ramping up ahead of Election Day, when the demographic is expected to play a crucial role in key battleground states. Advocacy groups and election security experts alike say material is circulating on social media platforms and online messaging apps that pushes false conspiracies that echo larger disinformation campaigns in English. The misinformation efforts, some of which reflect the QAnon conspiracy theory, are especially critical in Florida, a crucial swing state where polls show Democratic presidential nominee Joe Biden is running behind Hillary Clinton’s 2016 support among Latino voters. Advocates said the misinformation could dissuade Latino voters, who have historically low levels of voter participation, from voting in this year’s election…Oumou Ly, a staff fellow at Harvard’s Berkman Klein Center, said foreign actors are likely propping up these narratives. Officials have warned against similar foreign interference efforts from four years ago heading into the 2020 election. FBI Director Christopher Wray told a House panel last week that Russia is seeking to denigrate Biden’s campaign through social media interference. Much of the disinformation targeting Latino voters has the intent to dissuade their participation in the election, advocates said, including pushing unsubstantiated claims that vote by mail is not secure or the election system can be hacked. The disinformation is targeting Latino voters beyond Florida.

Continue Reading at The Hill »

Election and Supreme Court Fight Will Decide Trump’s Environmental Legacy

President Trump has initiated the most aggressive environmental deregulation agenda in modern history, but as his first term drives to a close, many of his policies are being cut down by the courts — even by Republican-appointed jurists who the administration had hoped would be friendly. Those losses have actually heightened the stakes in the election and the fight over a replacement on the Supreme Court for Justice Ruth Bader Ginsburg: A second term, coupled with a 6-3 conservative majority on the high court, could save some of his biggest environmental rollbacks. Since January courts have dealt a series of blows to the Trump administration’s plans to ramp up fossil fuel development and undo decades of environmental protections. This month, a federal appeals court temporarily blocked implementation of a major rollback of methane emissions standards for the oil and gas industry while it considers permanent action… if Joseph R. Biden Jr. gets into the White House in January, he will have to provide a written explanation of the reasons he wants to roll back each Trump administration action. Eliminating Trump’s executive orders will be relatively easy, but going through the regulatory process all over again on issues like fuel efficiency…James E. Tierney, a former Maine attorney general who now teaches courses at Harvard Law School on the role of attorneys general, said that they are “institutionally designed to be independent watchdogs, independent brakes on power.” Their relative independence from executive power, whether in their own state or the federal government, goes back to the thirteen original colonies, and, before that, English common law. “If there’s a Democratic president, roll up your sleeves and wait for Texas to file lawsuits against President Biden,” he said.

Continue Reading at New York Times »

What The US Needs To Do To Secure Election 2020

With just over two months before the 2020 election, intelligence officers in the US have warned that Russia and other rivals are again attempting to undermine the nation’s democracy. But these concerns over election security extend far beyond safeguarding insecure voting machines and questions about voting by mail in the United States. Based on an analysis of election reforms in Australia and European Union nations, the researchers outline steps to address election infrastructure security—such as requiring paper ballots and risk-limiting audits—as well as deeper structural interventions to limit the spread of misinformation and combat digital repression…Aside from appropriating sufficient funds to replace outdated voting machines and tabulation systems, the researchers say that Congress should encourage states to refuse to fund voting machines with paperless ballots. The researchers also suggest requiring risk-limiting audits, which use statistical samples of paper ballots to verify official election results… “The international community has the tools to act and hold accountable those actors that would threaten democratic institutions,” says Abbey Stemler, assistant professor of business law and ethics, who also is a faculty associate at Harvard University’s Berkman Klein Center for Internet and Society. “Failing the political will to act, pressure from consumer groups and civil society will continue to mount on tech firms, in particular Facebook, which may be sufficient for them to voluntarily expand their efforts in the EU globally, the same way that more firms are beginning to comply with its General Data Protection Regulation globally, as opposed to designing new information systems for each jurisdiction.”

Continue Reading at Futurity »

Biden’s Day 1 Assignment: Order the Government to Follow Science

An article by Cass Sunstein: Imagine, if you would, that it is Jan. 21, 2021, and that Joe Biden is president of the United States. The nation awaits his first executive order — a formal presidential decree, binding on the executive branch, that directs departments and agencies what to do. At 9 a.m., the executive order appears. Its name? “Scientific Integrity.” Here are its opening words: “Science and the scientific process must inform and guide decisions of my Administration on a wide range of issues, including improvement of public health, protection of the environment, increased efficiency in the use of energy and other resources, mitigation of the threat of climate change, and protection of national security.” It continues: “The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public.” But that’s just the start. President Biden’s order gives unprecedented authority to the director of a relatively obscure White House office, the Office of Science and Technology Policy, to make scientific integrity real. It requires federal agencies to put new procedures in place, designed “to identify and address instances in which the scientific process or the integrity of scientific and technological information may be compromised.” To ensure that political leaders do not politicize science, it calls for protection of whistle-blowers.

Continue Reading at Bloomberg »

Trump Gutted the Department of Justice. Biden Can Restore It.

An article by Noah FeldmanIt’s too soon to say with any confidence that Joe Biden will be the next president of United States. But it’s not too soon to start determining what he needs to do on day one if he is elected. Once you get beyond addressing the coronavirus pandemic, it’s pretty clear that the highest priority Biden should have is reversing the disastrous direction that the Department of Justice has taken under President Donald Trump. To regain its credibility, the department needs leaders who will publicly and systematically demonstrate that they are committed to restoring the values, norms and practices established in the nearly half-century since Watergate. The near-total failure of the Justice Department to engage the pressing concerns raised by the Black Lives Matter protesters is only the most recent and dramatic manifestation of how rudderless the once-great department has become. Looking at the violent clashes between federal agents and protesters this summer, you would hardly know that the Department of Justice once worked to desegregate schools and prosecute civil rights violations in the South. Trump’s Department of Justice has taken its cues from a president who ran for office by directing the “lock her up” chant at his opponent. It has increasingly undermined the all-important principle that enforcement, investigation and prosecution should be removed from partisan politics. Trump’s project of delegitimizing the department through politicking goes back to his extended efforts to paint the Russia investigation as politically motivated. His goal was to convince ordinary people that the FBI and DoJ were already completely partisan, in order to undercut any evidence implicating him or his campaign. Hence Trump’s pressure on Attorney General Bill Barr to break Department of Justice norms and reveal the progress of his investigation of the Russia investigation. The very existence of this investigation is a terrible sign of how Trump has successfully turned the initial investigation of Russian interference in the 2016 election into a political football.

Continue Reading at Bloomberg »

Worried About a Disputed Election? Steel Yourself

An article by Cass SunsteinSuppose that on Nov. 3, and for weeks thereafter, no one knows whether Donald Trump or Joe Biden has won the presidential election. To be more specific, suppose that as of Nov. 4, Trump is unquestionably ahead in the key states — say, Michigan, Wisconsin and Pennsylvania. But suppose, too, that as those states count absentee and mail-in ballots, it becomes clear that Biden has won. Predictably, Trump alleges fraud — and tweets that his supporters, and the country as a whole, should not allow “THE GREATEST FRAUD IN HISTORY.” Everything will ultimately turn on the vote of the Electoral College, scheduled for Dec. 14, and on what happens on Jan. 6, when Congress meets to declare the winner. But if we have a fierce dispute in late November and early December, how on earth do we get to a final decision in early January? The Electoral Count Act of 1887 was designed to answer that question. In my first column on this issue, I described what the ECA requires in the event of contested elections, and explained what the law is clear about. By giving the major authority to the states, and by outlining, step by step, what is supposed to happen, it sharply limits room for political maneuvering in Washington. Unfortunately, the act also leaves some important questions unresolved. A leading political scientist of the late 19th century even described it as “very confused, almost unintelligible.” That’s too harsh. But exactly how would the law handle an objection, by Trump and his campaign, that the election was “rigged” and that mail-in voting resulted in rampant fraud? The first question, and the most fundamental, is whether the act is constitutional. Many people think that it isn’t, and the Supreme Court has never ruled one way or another.

Continue Reading at Bloomberg »

Congress should warn Trump’s lawbreakers that there will be consequences

With about two months to go until Election Day, President Trump has abandoned any pretense of following, let alone enforcing, the laws he has sworn to uphold. He directed government employees to assist him in putting on a political extravaganza at the White House. His secretary of state dialed in from Jerusalem for a purely political role as Trump’s cheerleader at the Republican National Convention, in violation of both the Hatch Act and his own departmental guidelines. Trump instructed his director of national intelligence to refuse to brief members of Congress in person on efforts to disrupt the 2020 election, a choice House Speaker Nancy Pelosi (D-Calif.) and House Intelligence Committee Chairman Rep. Adam B. Schiff (D-Calif.) declared “a shocking abdication of its lawful responsibility to keep the Congress currently informed, and a betrayal of the public’s right to know how foreign powers are trying to subvert our democracy.” And Postmaster General Louis DeJoy has instituted measures that have slowed the mail, even as more Americans will rely on the Postal Service to cast their ballots. The way to handle Trump is to beat him at the polls. But what about the aides who participate in illegal activities or block Congress from performing oversight? … “It’s well past time for Congress to lose its subpoena inhibitions, now that the Roberts court has unanimously rejected the administration’s claims of absolute presidential immunity in a ringing reaffirmation of the principle that no executive official is above the law,” says constitutional scholar Laurence Tribe. “The White House participants who engaged in flagrant Hatch Act violations should all be held in contempt if they defy facially valid congressional subpoenas, and there’s no legitimate basis for the new administration to give such participants a bye just because the president personally isn’t covered by the Hatch Act.”

Continue Reading at Washington Post »

TV Ratings for Biden and Trump Signal an Increasingly Polarized Nation

Americans who watched the political conventions on television opted for news networks with partisan fan bases to a degree unseen in recent years, another sign of an increasingly divided electorate as the nation hurtles toward the November election…Television viewers’ turn to perceived safe spaces raises questions about the ability of political conventions — which reached a broader TV audience in the pre-internet era — to persuade undecided voters. And it underscores fears about a polarized information environment where Americans can receive little exposure to political ideas that run counter to their own…On MSNBC, three Trump critics — Rachel Maddow, Joy Reid and Nicolle Wallace — lambasted the president’s address and interrupted the convention for several fact-checking segments. The channel’s ratings for the Republican convention were among its lowest prime-time weeks of the year. For the Democratic convention, the picture was sharply reversed. MSNBC clocked its highest-rated prime-time week in the network’s 24-year history, with a 10 p.m. average of 5.7 million viewers. Fox News’s viewership fell far below its usual prime-time average. “What we saw in the last presidential election was that Clinton supporters distributed their attention much more evenly among a broader range of outlets, and Trump supporters concentrated much more heavily on Fox News,” said Yochai Benkler, a co-director of the Berkman Klein Center for Internet and Society at Harvard Law School. “The fact you have such a high proportion of viewers of the Democratic convention on MSNBC does suggest, to some extent, a gravitation on the Democratic side toward a more partisan, viewpoint-reinforcing network,” Mr. Benkler said.

Continue Reading at New York Times »

Responding to a Contested Election, Step by Step

An article by Cass Sunstein: After Nov. 3 — Election Day — there is a chance of constitutional chaos. It could take the form of acute uncertainty, not only about who won the election but also about the process by which that question will be settled. We might have a perfect storm: close contests in key states, issues with mail-in voting, allegations of voter suppression and fraud, and an incumbent president who is unwilling to accept a loss (and who is already paving the way toward contesting the results as “rigged”). To see the problem, it is essential to understand that Nov. 3 is only the first of three defining days. The second is Dec. 14, when members of the Electoral College cast their votes. The third is Jan. 6, 2021, when Congress meets in joint session to declare the winner. What happens on Nov. 3 is almost always enough to decide the presidential election. That isn’t because victory goes to the candidate with the most votes nationally, but because the popular vote, within the states, settles the outcome in the Electoral College. In nearly every state, the candidate who receives the most votes statewide is entitled to the vote of all of the state’s electors. Suppose, for example, that President Donald Trump receives 47.3% of the vote in Ohio, and that former Vice President Joe Biden receives 47.2% of the vote there. All of Ohio’s 18 electoral votes would be allocated to Trump. But what if we don’t know on Nov. 3, or even a month later, who won Ohio? Or Wisconsin, Michigan, Pennsylvania and Florida? What if it takes a long time to count the votes, and what if the results are disputed?

Continue Reading at Bloomberg »

Can the Post Office Handle the Election?

A podcast by Noah Feldman: Elaine Kamarck, a senior fellow at the Brookings Institution who studies the post office and electoral politics, discusses whether the agency can handle a pandemic election.

Continue Reading at Stitcher »

VERIFY: Fact-checking speeches from final night of Democratic National Convention

The VERIFY team fact-checked what Joe Biden and other speakers said during the final night of the DNC. …  Claim:  Biden said “He’s (President Donald Trump) proposing to eliminate a tax that pays for almost half of Social Security without any way of making up for that lost revenue.” Biden was likely referring to the […]

Continue Reading at WUSA9 »

Bloomberg ‘Balance of Power’

“Bloomberg: Balance of Power” focuses on the intersection of politics and global business. A preview of night 3 of the Democratic National Convention, as vice presidential nominee Kamala Harris takes the stage. Guests: Rep. Joyce Beatty, National Urban League CEO Marc Morial, Harvard Law Professor Cass Sunstein, Pattern Energy CEO Mike Garland.

Continue Reading at Bloomberg »

How to Block Foreign Subversion of U.S. Elections

An op-ed by Cass Sunstein: In the near future, Congress should create a Commission on Electoral Integrity, with only one task: protecting the U.S. from foreign interference in its elections. That is the unmistakable lesson of Volume 5 of the Senate’s Select Committee on Intelligence report on “Russian Active Measures Campaigns and Interference in the 2016 Election.” Put to one side your own political convictions. Don’t ask whether members of Donald Trump’s campaign worked in concert with Russian officials to turn the election to him.

Continue Reading at Bloomberg »

Florida voters must be climate voters in 2020

An article by William McConnell ’22Florida is one of the epicenters of the climate crisis already raging in the United States and, unless Florida voters do something about it, the situation will only get worse. Climate change is making hurricanes stronger. Although Palm Beach County dodged Hurricane Isaias, more hurricanes will follow, and we will not always be lucky. With stronger hurricanes and storms, flooding is now commonplace and will become even more destructive in the coming years. Soon, Florida could experience as many as 105 days with a heat index over 100 degrees. These heat waves will kill — yes, kill — seniors and destroy agriculture. And, as climate change ravages Central American and Caribbean countries, Florida will become the destination for thousands of climate refugees. These are not the predictions of alarmists. This is the consensus of scientists, the U.S. military, Florida state and federal officials, and the same companies that are at the center of America’s carbon footprint. It is clear that one presidential campaign is serious about stopping the climate crisis and the other is not. President Trump, whose campaign is funded by fossil fuel money, neither understands nor cares about the risk to Florida’s seniors and younger generations. His administration has ignored investment in clean infrastructure and disintegrated America’s global leadership in addressing the crisis. The U.S. once pressured China, India and other polluting countries to reduce their carbon emissions, but now we are silent, floundering in the backwash, as other countries shape the new green economy. But President Trump’s mistakes do not have to be our own.

Continue Reading at Sun Sentinel »

Trump Is Abusing His Power Again

An article by Noah FeldmanPresident Donald Trump is pressuring Attorney General William Barr to announce the results of the ongoing Russia probe, which would violate Department of Justice guidelines designed to prevent the department from influencing elections. Of course, influencing the election is exactly what Trump wants Barr to do. Trump is once again using the unique power of the presidency to gain an unfair advantage in the 2020 election. The pattern is by now eerily familiar. It’s the same impulse manifest in Trump’s undermining of the U.S. Postal Service at just the moment it faces the responsibility of handling a surge of mail-in ballots. And it’s identical to the conduct for which Trump was impeached by the House of Representatives. Although it may seem like eons ago, it was only last December that Trump was impeached for abusing the power of the presidency to distort the 2020 election by harming the candidacy of Joe Biden. That was, the House determined, the purpose of Trump’s call to Ukrainian president Volodymyr Zelenskiy. And in Trump’s Senate trial, which ended with Republicans declining to remove him from office, the president’s supporters all but admitted to the pattern. As you’ll remember, their main defense was not that the president hadn’t used his office to try to gain an advantage, but that even if he had, the abuse of power didn’t count as an impeachable offense. The latest Barr affair is about as explicit an abuse of presidential power as you can imagine. Long-standing Department of Justice guidelines issued under the authority of the attorney general say explicitly that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” The guidelines are implemented via a norm that the department should not make disclosures about politically sensitive investigations in the 60 days before an election.

Continue Reading at Bloomberg »

The Bush-Gore Recount Is an Omen for 2020

Twenty years ago this fall, the United States was plunged into 36 days of turmoil as lawyers, judges, political operatives, and election workers grappled with the uncertain result of the presidential contest in Florida. Whoever won the state would win the presidency. In the end, after start-and-stop recounts and the intervention of courts at every level, Texas Governor George W. Bush, the Republican candidate, was declared the victor, edging out Vice President Al Gore, the Democrat. The story of the 2000 Florida recount offers a reminder of just how chaotic the electoral process can become—and of how disarray in a single state can undermine faith in the democratic process nationwide…The account here, drawn from interviews with more than 40 people with firsthand experience of the Florida-recount saga, is both a history and a warning…On Friday, November 24, the U.S. Supreme Court agreed to review the Florida Supreme Court’s ruling in favor of Gore. Two days later, on Sunday night, Katherine Harris certified the vote tally in Florida, and Bush’s lead stood at 537 votes. Some recount results were excluded—the results from Palm Beach County had arrived two hours late. Miami-Dade had stopped its recount. Laurence Tribe (Gore lawyer): Ron Klain called, and he said, “We really need help. It looks like there is an issue about federal-court intervention with the electoral recount, and we need you to fly down to Florida immediately.” The question of whether, as a matter of federalism, this is an appropriate intervention was very much up in the air. The next morning, I appeared in federal court, and I remember arguing that it was inappropriate for a federal court to intervene at this point. If there were any constitutional issues about the recount, they could be properly handled at the state level and in the state court.

Continue Reading at The Atlantic »

The 10 Scariest Election Scenarios, Ranked

As the election nears, anxieties are growing over the possibility that President Donald Trump will try to cling to power if he loses to former Vice President Joe Biden. Trump, for his part, is strongly hinting he will not accept any loss as a legitimate result. On Thursday, the president said that he’s deliberately blocking funding to the United States Postal Service in order to prevent people from voting by mail in the midst of the pandemic, which he claims, without evidence, will result in mass fraud…All this has led many Americans to wonder: What can proponents of democracy do to prevent a stolen election? …Mark Tushnet, professor of Law at Harvard Law School, warns that results on election night may be misleading due to a close race and the slow counting of mail-in ballots. In 2018, late-counted mail-in ballots after Election Day caused a “blue shift” that understated the depth of the Democratic victory on election night. Trump could take advantage of this delay, aided by overeager—or friendly—media outlets. Tushnet writes: “ ‘Close’ and ‘slow’ are concepts that will be developed on the fly, and with an eye to electoral advantage, but my current version is that margins of around 10,000 votes or fewer will be [construed] to be close. And what counts as slow will depend in part upon whether states provide interim updates from election-night reported outcomes.” Countermeasures: “Immediate popular mobilizations in the form of street demonstrations near but not in the venues where mail-in ballots are being counted (so not the ‘Brooks Brothers’ Republican riot from 2000), with the theme ‘Count every vote.’” Likelihood: This scenario depends on the race tightening in the weeks ahead, the difficulty of counting mail-in ballots, and willingness of the GOP to weaponize an indecisive election night outcome against democracy. Which is to say, it is highly plausible.

Continue Reading at Slate »

Trump will almost certainly challenge the results if he loses — here’s how that could play out

As he did in 2016, Donald Trump is constantly claiming that if he loses in November it will be proof that the vote was rigged against him. He tweets regularly, contrary to the available evidence, that mail-in voting will lead to massive amounts of voter fraud when such fraud hasn’t been a significant problem in any presidential election in modern history. Because Trump seems unlikely to accept the results of the vote if he loses, there is widespread speculation that Trump’s will litigate every ballot it can. But Jessica Levinson, a law professor at Loyola Marymount University, tells AlterNet that the Trump campaign might not have to file a challenge itself, as his supporters might claim that they had been disenfranchised by some sort of fictitious scheme to “rig” the vote…And Nicholas Stephanopoulos, a law professor at Harvard University, tells AlterNet that he can imagine a scenario where the Democrats are the ones suing over election results. “One bad scenario is that a swing state’s election is close and that many mail-in ballots — enough to maybe change the result of the election — arrive too late to be counted because of deliberate delays by the post office,” Stephanopoulos says. “The disadvantaged side (probably Democrats) would then sue, arguing that the mail-in voters’ right to vote was burdened by the post office delays and by the state’s policy of not counting late-arrived ballots.” Stephanopoulos says he expects that the current Supreme Court would be “hostile to this claim despite its normative appeal.” He says the Court has never ruled in favor of a voting rights plaintiff, and it “would be unlikely to start when its decision might benefit a Democrat and when it could plausibly deny the claim.”

Continue Reading at AlterNet »

Kamala Harris Is Eligible to Be VP. Shout It From the Roof.

An article by Noah Feldman: The theory that Kamala Harris is ineligible to be vice president because her parents were not U.S. citizens is xenophobic and false. But it’s not exactly the same as the birther conspiracy theory that said President Barack Obama wasn’t born in the United States at all. Birtherism was a conspiracy theory based on a factual lie. Even debunking that kind of theory can be a bad idea because it tends to help the falsehood reach more people — some of whom then believe the lie. The anti-Harris theory, in contrast, is based on a fringe constitutional claim about the meaning of the words of the 14th Amendment. When it comes to constitutional claims, even extreme ones, it’s important to explain why they are wrong in order to refute them. It’s therefore both valuable and necessary to explain carefully why this theory is incorrect as a matter of constitutional law. To do that, you need to start with the theory itself. It starts with the constitutional provision of Article II that says, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” (To be vice president, you have to meet the eligibility requirements to be president.) According to the attack theory, the meaning of “natural born” should be derived from the 14th amendment, which says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The attack on Harris’s eligibility focuses on the words “subject to the jurisdiction thereof.” The basic idea is supposed to be that those words modify the words “born in … the United States.” The theory asserts that children of non-citizens aren’t subject to the jurisdiction of the U.S. If that is so, runs the argument, they aren’t citizens.

Continue Reading at Bloomberg »

Fact check: Kamala Harris is a natural-born U.S. citizen and eligible to serve as president

A post on Facebook claims Sen. Kamala Harris, D-Calif., cannot serve as president because of her parents’ citizenship…Harris is a citizen of the United States and has been since birth. She was born in Oakland, California, on Oct. 20, 1964, according to Encyclopedia Britannica. Her parents were both immigrants — her father from Jamaica and her mother from India. By virtue of her birth in California, Harris is a natural-born U.S. citizen. The Citizenship Clause of the 14th Amendment provides that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” And that’s not dependent on their parents’ citizenship. “Anyone born on U.S. soil and subject to its jurisdiction is a natural born citizen, regardless of parental citizenship,” according to the Cornell Legal Information Institute. Parental citizenship is relevant to an individual’s citizenship status only if the individual is born outside of the United States…When Harris ran for president, similar claims about her citizenship and eligibility circulated online. At the time, Laurence Tribe, a professor of constitutional law at Harvard Law School, condemned the notion. “I can’t believe people are making this idiotic comment,” Tribe told the Associated Press in 2019. “She is a natural born citizen and there is no question about her eligibility to run.”

Continue Reading at USA Today »

Trump Encourages Racist Conspiracy Theory About Kamala Harris

President Trump on Thursday encouraged a racist conspiracy theory that is rampant among some of his followers: that Senator Kamala Harris, the presumptive Democratic vice-presidential nominee born in California, was not eligible for the vice presidency or presidency because her parents were immigrants. That assertion is false. Ms. Harris is eligible to serve. Mr. Trump, speaking to reporters on Thursday, nevertheless pushed forward with the attack, reminiscent of the lie he perpetrated for years that President Barack Obama was born in Kenya…Mr. Trump appeared to be referring to a widely discredited op-ed article published in Newsweek by John C. Eastman, a conservative lawyer who has long argued that the United States Constitution does not grant birthright citizenship. Ms. Harris, the daughter of Jamaican and Indian immigrants, was born in 1964 in Oakland, Calif., several years after her parents arrived in the United States…In an interview on Thursday, Laurence H. Tribe, a professor of constitutional law at Harvard Law School, compared Mr. Eastman’s idea to the “flat earth theory” and called it “total B.S.” “I hadn’t wanted to comment on this because it’s such an idiotic theory,” Mr. Tribe said, “There is nothing to it.” Mr. Tribe pointed out that the theory still quickly landed in the hands of a president who has used his pulpit to spread a number of conspiracies against his political enemies, particularly those who do not have white or European backgrounds.

Continue Reading at New York Times »

Inside Joe Biden’s race of a lifetime

It was late afternoon on February 2, the eve of the Iowa caucuses. We were jammed into a high-school gymnasium in Des Moines, the state capital, for Joe Biden’s closing rally. No one thought he would win the primary season’s talismanic opening contest the following day. Nor was he expected to come close to beating Bernie Sanders, the socialist Vermonter, in New Hampshire the next week. Though he was still ahead in the national polls, the 77-year-old former vice-president was treated as yesterday’s news…Should he make it to the White House, Biden would have completed the longest marathon in US political history. No other serious figure has tried this long to make it over the finishing line in recent history. A majority of Americans were not born when Biden first entered national politics. At 30, he was the fifth youngest senator in the country’s history after he won office in 1972. Biden’s 48-year political career is older than John F Kennedy, Bill Clinton and Barack Obama when they were elected…In another cycle, Biden’s lachrymosity might have been an albatross. During coronavirus, his emotional antennae look like a virtue. More than 165,000 Americans have now died in the pandemic. That toll is likely to be approaching a quarter of a million by early November. Trump’s inability to express condolences for America’s grieving families could not be further apart from Biden’s. In 2016, anger was the dominant political emotion. In 2020, it feels more like sadness. “If Trump were matter, then Biden is anti-matter — their characters are opposites,” says Laurence Tribe, a ­Harvard law professor who has been advising Biden on ­constitutional matters since the mid-1980s.

Continue Reading at Financial Times »

One Tough Question For DOJ If Biden Is Elected: Whether To Prosecute Trump

If Joe Biden wins the presidency, his Justice Department will face a decision with huge legal and political implications: whether to investigate and prosecute President Trump. So far, the candidate is approaching that question very carefully…Based on those remarks, Biden seems to be on the way to adopting the position of former President Barack Obama. Back in 2009, the newly elected Obama said he didn’t want to get hung up on prosecuting wrongdoers. He was referring to people who had engaged in torture and warrantless wiretapping during the previous administration. Instead, Obama told ABC News at the time, his instinct was to make sure those practices never happened again. “I don’t believe that anybody is above the law,” he said, “On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards.” …”It’s not at all clear that looking forward and not looking backward is an available option,” Harvard Law School Professor Jack Goldsmith said. Goldsmith said most people aren’t talking about how a Biden Justice Department might handle Trump but said he thinks they should be…But the Justice Department twice has opined that prosecutors can’t seek an indictment against a sitting president. That’s left open the question about whether he might face prosecution once he leaves office. It’s never happened before, and it’s a political time bomb. Bringing a criminal case against a former president could widen the divide in the country. “Whether that’s good for the country is a very hard question that’s going to be very messy,” Goldsmith said. “Whether it’s good for the Biden administration, whether it wants to be, you know, absorbed in being the first administration to ever prosecute a prior president — those are very hard questions.”

Continue Reading at NPR »

Meet Joe Biden’s Likeliest Picks for the Supreme Court

An article by Noah FeldmanJoe Biden has fulfilled his promise to choose a woman as his running mate. Let’s turn our attention to another promise he made: to name a Black woman to the Supreme Court. A number of women with different kinds of legal experience have been suggested by NGOs and journalists. But to legal insiders, Biden’s options narrow down very quickly to two names: Justice Leondra Kruger of the California Supreme Court, and Judge Ketanji Brown Jackson of the federal district court in Washington, D.C. Both are extremely accomplished, with gold-plated resumes that are reminiscent of the justices picked by President Barack Obama, and for that matter by President Donald Trump. Both are also super-smart and well-liked. And realistically, they are the only two Black women who are young enough to serve for the long haul and have the relevant judicial experience to make their confirmation straightforward, even boring — which is just what a nominating president wants. To be clear, there are many more than two Black women qualified to sit on the court. They include legal activists, law professors, judges and government officials with experience at all levels. And in prior decades, it wasn’t unheard of for justices to come from the Senate, the cabinet, or even private corporate law firms. They didn’t all have fancy educational backgrounds, either. But that’s changed in recent years, partly as a product of bruising confirmation battles and partly as an effect of elite consensus on what a nominee’s record should look like. Today’s nominees tend to have attended an Ivy League law school; clerked for a Supreme Court justice themselves; and served as a high-level judge by a relatively young age. That’s one reason the possible Biden nominees are, in reality, so few. There are just not that many Black women who both fit that incredibly narrow mold. With a Democratic Senate — likely the only way Biden could get any nominee confirmed — Biden could try to change the norms and push through someone with a different resume. Yet that sort of risk-taking seems unlikely from Biden, who has just made his VP pick according to the most conventional of conventional wisdom.

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Trump Has Launched a Three-Pronged Attack on the Election

An article by Laurence H. Tribe, Jennifer Taub, and Joshua A. Geltzer: As President Donald Trump reflects on his sinking approval ratings and grows more desperate by the day, he’s been floating a dictator’s dream: postponing the November election. Even Senate Majority Leader Mitch McConnell and other Trump loyalists, including the Federalist Society co-founder Steven Calabresi, swiftly rejected this authoritarian fantasy. So Trump has retreated to a fallback position: casting doubt on the legitimacy of any election he doesn’t win. That starts by inventing fables about how voting by mail invites massive fraud and interminable delay—except, Trump now tells us, in Florida, where Trump’s elderly supporters will surely rely on it. Trump’s attack on voting by mail has several fronts, but one is by far the most serious: his attempt to slow down mail service, perhaps in a targeted way, while also insisting that only ballots counted on November 3 are valid. In addition to casting doubt on the entire election, another purpose of this scheme is to engineer a scenario in which Trump can pressure Republican-controlled legislatures to ignore the popular vote in their Democratic-leaning swing state (think Michigan, Pennsylvania, and Wisconsin) and instead select an Electoral College slate that supports him. Trump’s attempt to cut short the counting of valid votes is flatly contrary to constitutional law and federal statutes. Even so, states can and should do more to protect American’s mailed-in votes. States should immediately enact new legislation or take other legal steps clarifying that they intend for Congress to honor electors they choose, and that they may need a bit of time to finalize choosing them—ideally doing so by December 23 and no later than January 6, 2021, when Congress meets in special session to certify the election results. Through state-level action, Trump’s efforts can be neutralized.

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Can Judicial Independence Outlast Four More Years of Trump?

An article by Noah FeldmanIn nearly four years in office, President Donald Trump has challenged the independence of the judicial branch more than any other president. He’s accused judges of being “Obama judges” or “Mexican judges.” When he’s been investigated for corruption or obstruction of justice, he’s routinely portrayed himself as above the law. He’s directed his administration to issue a spate of unlawful executive orders. With the November election looming, it’s a good time to ask: Can the legitimacy of the federal judiciary survive another four years of this president? There are reasons to hope that it could. Although Trump has named numerous district court and appellate judges and two Supreme Court justices, the courts have nevertheless mostly held the line against his efforts to subvert the rule of law. Indeed, in the recent Supreme Court term, the justices did better than that. Majorities blocked Trump from rescinding DACA and held that the New York district attorney could subpoena his business records. The verdict on the courts’ ability to maintain independence over the last four years is mainly positive. Yet there are also reasons to worry. If Trump is given another four years and a Republican Senate, he will get to name a lot more lower court judges. And barring a medical miracle, he would very likely get to replace Justice Ruth Bader Ginsburg, who is 87 and suffering from a recurrence of cancer. He might even get a chance to nominate a successor to Justice Stephen Breyer, now 81.

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Laurence Tribe says if a 2020 result isn’t decided by January 20, Pelosi will be president

President Trump seems determined to sow confusion and chaos ahead of the 2020 election. Laurence Tribe says the president is trying to make the election ‘look chaotic’ and mentions a ‘fail safe’: President Nancy Pelosi.

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Trump’s tweet about delaying the election is just the beginning of a much more dangerous plan

If you ask a Joe Biden supporter to describe the former Vice President’s positive attributes, you’ll hear a lot about compassion, empathy, and experience. But after today, some might be tempted to add soothsaying to the list. Shortly after the Commerce Department announced that the pandemic-driven economic crisis had taken a 32.9 percent bite out of America’s annualised Gross Domestic Product, Donald Trump turned his presumptive Democratic opponent into a prophet Thursday morning by way of a single tweet. After making the baseless claim that states’ use of vote-by-mail will make November’s election (which he is losing according to most reputable polls) will be “the most inaccurate and fraudulent” vote in American history and “a great embarrassment,” Trump suggested delaying it “until people can properly, securely and safely vote”…But according to the man who taught Raskin constitutional law at Harvard Law School, an attempt by Trump to delay the November election is not the nightmare scenario Democrats need to worry about. “He must know — or even though he’s personally very ignorant, his lawyers must know — that three US code chapter one, which sets the date for the election, can be changed only by Congress,” said Harvard Emeritus Professor Laurence Tribe, author of the seminal law school text on the constitution, American Constitutional Law. Tribe posited that because only Congress can change the date of the election, Trump is positioning himself to blame the Democratic-controlled House of Representatives and Speaker Nancy Pelosi for making it impossible to pass any sort of measure to carry out his demand, and to pressure Republican-controlled state legislatures to nullify the results should he lose in states like Pennsylvania, Wisconsin, or Michigan.

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Democracy Is the Loser of Trump’s Vote-Delay Ploy

An article by Cass SunsteinWhat once seemed a paranoid fantasy is now looking plausible: Well behind in the polls, President Donald Trump is suggesting a possible delay in the 2020 election. Here’s what he tweeted on Thursday: “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???” There are major ironies here. Trump has repeatedly downplayed the coronavirus pandemic and called for rapid opening of cities, businesses and schools. Now he is fearful that people cannot “safely vote,” and wants to delay the election? A key reason that Trump is doing so poorly in the polls is his response to the pandemic, which is widely regarded as an abysmal failure. Now he wants to use the pandemic as a justification for stopping the ordinary operation of the democratic process? To be sure, Trump’s stated concern is with mail-in voting, which, in his view, is a recipe for fraud. But existing evidence does not support that concern. It is difficult to avoid the conclusion that Trump’s opposition to mail-in voting, and his interest in delaying the election, are a product of one concern: It looks as if he is going to lose. Fortunately, the president is not a king, and he can’t delay an election simply because he doesn’t want one. The Constitution gives the relevant power to Congress. Article 2 states: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Since 1948, Congress has exercised its constitutional authority with a law that says plainly: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

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Donald Trump vs. Democracy

The fundamentals are clear: Donald Trump lost the popular vote in 2016 and is poised to lose it again in 2020. His only hope is to squeak out an Electoral College margin in the only states that matter—and only through a multifarious campaign of voter suppression which exploits the pandemic to undermine democracy itself. Failing that, he can use bogus charges of voter fraud to question results in key states, including those where a surfeit of mail-in ballots delays a final count. The battleground states of Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin all narrowly favored Trump in 2016; recent polls show him trailing Joe Biden in all six. But many Democrats now believe that, with money and effort, they can flip three other states that Trump carried easily in 2016: Ohio and, more surprisingly, Georgia and Texas. At a time when the coronavirus has deep-sixed Trump’s approval ratings, flipping states that Trump barely won would seem like a relatively easy task. But the coronavirus has severely complicated the electoral landscape by making voting on Election Day a potentially serious public health risk…But the pandemic-driven recourse to voting by mail has resulted in further efforts to protect the GOP from the ravages of democracy…Hence the GOP’s effort to underfund the agency charged with delivering mail-in ballots in a timely manner: the U.S. Postal Service. Addressing these efforts, Laurence Tribe warned that funding the USPS is “vital if voting isn’t to become a form of Russian roulette. People died for the right to vote. They shouldn’t have to die to exercise it.”

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Trump Could Defy Election Defeat. But He Needs Accomplices

President Donald Trump’s powers to dispute the election results if Democratic candidate Joe Biden is victorious in November may hinge upon whether allies support such a challenge. Asked on Sunday, the president would not confirm whether or not he would accept the results of November’s election. This has prompted backlash from Democratic lawmakers, with his behavior branded dictatorial, and calls for people to prepare to take action should he refuse to accept the results. Trump’s remarks came after the president’s frequent attacks on mail-in voting, which he has suggested—without evidence—could undermine November’s outcome. Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, told Newsweek Trump’s comments prompted him to “worry more than ever before that the 240-year history of peaceful successions of administrations might not hold this time and that the American experiment is in the gravest danger it has faced since the Civil War.” Tribe suggested that if the results were certified by Congress, and all prior contests had been resolved, on January 6 that Trump would thereafter need to enlist allies “in order to exercise anything resembling real power.” …He bases this around the notion the president cannot run the executive branch without assistance, while others are barred from using its authorities at the behest of anyone other than the legitimate president—with the threat of criminal prosecution should they choose to. Tribe said while that offers some protection in that scenario, it does not prevent Trump posing challenges along the way.

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How Biden could use air law to vanquish Trump climate legacy

If Democrat Joe Biden defeats President Trump this November, his EPA will have a blank slate for writing climate rules. Because the Trump administration spent 3 ½ years demolishing its predecessor’s Climate Action Plan, Biden’s team would have an opening to update rules for carbon, methane and hydrofluorocarbons that would exceed their Obama-era counterparts or be more tailored to the political, judicial and economic realities of the 2020s. To be sure, a departing Trump EPA would leave finalized rules for power plant carbon, vehicle fuel economy, and oil and gas development, among other things, but most of those regulations haven’t faced court reviews, allowing an incoming administration to ask that they be returned to the agency. That request — if granted — would clear the path for a Biden EPA to write new rules to go with the former vice president’s promise of rejoining the Paris Agreement and the global effort to contain global warming…Meanwhile, the Trump administration has succeeded in moving the courts to the right, up to and including the Supreme Court. Justice Anthony Kennedy, the swing vote who retired from the court two years ago, usually sided with the court’s liberal members on environmental cases like Massachusetts v. EPA, which established that EPA has the authority and obligation to address climate change under the Clean Air Act. The two justices Trump has nominated don’t have that reputation…Richard Lazarus, a Harvard Law School professor and author of “The Rule of Five,” which chronicles Massachusetts vs. EPA, said the agency under Biden would be aggressive. But he agreed that a conservative Supreme Court would be a barrier. “They will try to do more on power plants under a less ambitious legal theory,” he predicted, adding that that would probably mean on-site emissions reductions.

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Biden Needs a Battle Plan to Defend Modern Government

An article by Cass SunsteinSome conservative legal thinkers speak of a “Lost Constitution” or “Constitution in Exile.” By that they mean the Constitution as it was understood before President Franklin D. Roosevelt’s New Deal helped form the modern regulatory state. Their Constitution in Exile would invalidate key parts of contemporary government. Some conservatives want to revive the long-dead “nondelegation doctrine,” which was once taken to forbid Congress from granting broad discretion to regulatory agencies. The Supreme Court made a strong movement in the direction of the Constitution in Exile in its most recent term, when it ruled that the Consumer Financial Protection Bureau may not be made independent of the president. The court stopped well short of upending the regulatory state. But it was just a preliminary skirmish. Bigger battles are brewing. Those who want to defend modern government — including Democrats if they regain power in November — will need to think hard about appropriate reforms if the Supreme Court begins to invalidate larger features of the U.S. government as it exists today. A Supreme Court bent on resuscitating the nondelegation doctrine would put important parts of the Clean Air Act, the Occupational Safety and Health Act and the National Traffic and Motor Vehicle Safety Act in jeopardy. Those who believe in the Constitution in Exile also have trouble with the idea of independent agencies, such as the National Labor Relations Board, the Federal Reserve Board, the Federal Communications Commission and the Federal Trade Commission. The president has limited control over the heads of such agencies; he cannot fire them simply because that’s what he wants to do.

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A big election amid pandemic in a riven land

State election officials are bracing for two trains on a possible collision course this fall: potential record turnout for the Nov. 3 general election, and an expected surge of the highly contagious and sometimes deadly COVID-19…Though the federal government can provide money and offer assistance, states control every aspect of voting except the date of Election Day, such as how elections are run, how and when voter registration takes place, the methods used to cast votes, what ballots look like, and how close races are handled. That local control comes with a price. “The core problem with the U.S. is you don’t have a single expert federal authority that runs elections that could have lots of resources, lots of expertise. You have 50 political secretaries of state; you have thousands of counties, all of which administer their own elections, and so, you’re never going to have uniform improvement or uniform competence when you have such a decentralized electoral system,” said Professor Nicholas Stephanopoulos, an election law expert at Harvard Law School…The case Stephanopoulos said he’s most closely watching is one filed by the Republican National Committee and several affiliated organizations that seeks to bar the state of California from sending ballots to every eligible voter. State officials, including Gov. Gavin Newsom, a Democrat, say they want to avoid forcing citizens to choose between exercising their right to vote and risking their health. But Republicans, including President Trump and Attorney General William Barr, claim without evidence that mail-in voting invites fraud and makes it easier for foreign actors to interfere in elections. In June, the president said the “biggest risk” to his reelection is losing these legal fights to stop the expansion of mail-in voting.

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Trump, Biden Square Off Over Environmental Regulations

Environmental regulation is shaping up as a defining issue in the presidential race, with President Trump doubling down on his bid to ratchet back government oversight and former Vice President Joe Biden promising to reverse Mr. Trump’s regulatory rollbacks. The rivals this week outlined diametrically opposed views. Mr. Trump ordered a streamlining of environmental reviews and said he would keep shrinking the reach of government to help business. Mr. Biden, the presumptive Democratic nominee, released a $2 trillion clean-energy plan he said would spur job growth through investments in new technology…Shortly after taking office, Mr. Trump also issued a hiring freeze designed to starve agencies through attrition. The Occupational Safety and Health Administration, which investigates and regulates workplaces for health and safety issues, has the lowest number of inspectors in more than four decades and has seen inspection tallies plummet. The Environmental Protection Agency has seen similar decreases in inspections when compared with the Obama era, according to government reports. “The administration came into office with an unnervingly good understanding of how the machinery of regulation works and they did a pretty effective job of sabotaging it,” said Joe Goffman, executive director of the Environmental & Energy Law Program at Harvard Law School. The approach will make it tougher for a new administration to carry out its objectives.

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The Supreme Court’s Future Hinges on the 2020 Election

An article by Noah FeldmanThe blockbuster Supreme Court term that just ended was a (nearly) unmitigated disaster for movement conservatives. Chief Justice John Roberts declined to overturn precedent on abortion rights. Conservative activist Justice Neil Gorsuch showed he would join the court’s liberals when the statutory text tells him to. The natural question then is, what’s next? What are the implications for the future of the court? The short answer is that the court’s future direction is in flux like no other time in recent memory. And what happens next will be determined by the 2020 election and the justices’ health. The first crucial point here is that, had Roberts and Gorsuch not crossed the court’s ideological lines in the most high-profile cases of the term, we would be looking at an extremely conservative court for the foreseeable future, regardless of the outcome of the November vote. The court has five conservative justices who — until this term — seemed capable of acting as an unassailable voting bloc for the indefinite future. (The oldest, Justice Clarence Thomas, is only 72.) This bloc was formed after Senate Majority Leader Mitch McConnell and the Republican Senate blocked a confirmation vote on Judge Merrick Garland during the Obama administration, allowing a newly elected President Donald Trump to appoint Gorsuch. The retirement of Justice Anthony Kennedy, a swing voter who repeatedly delivered liberal-friendly results on issues like gay rights, abortion, and Guantánamo, then allowed Trump to appoint Justice Brett Kavanaugh, who is (so far) a much more reliable conservative. This conservative majority was the first on the court in nearly a century, and conservative activists anticipated that it would overturn Roe v. Wade and hold the line on cultural issues like transgender rights.

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International Tax Policy To Watch In The 2nd Half Of 2020

All eyes in the international tax world are focused on the last weeks of 2020, when governments are expecting a mad dash of dealmaking over the digital tax conundrum, which has eluded a multilateral solution for years.Officials at the Organization for Economic Cooperation and Development, which is spearheading the negotiations, are hoping the U.S. presidential election, regardless of its outcome, could break a stalemate and allow the U.S. more leeway to participate in a consensus solution. But observers, including those who have participated in past OECD tax efforts, question whether the election, or even a change in administration, would be enough to bridge the gap between the U.S. and Europe before a potential trade war begins. “The biggest thing to expect is conflict,” said Daniel Bunn, vice president of global projects at the Tax Foundation, an economic think tank based in Washington, D.C. Robert Stack, a managing director at Deloitte Tax LLP and the former Treasury deputy assistant secretary for international tax affairs, noted that whoever is president in 2021, the changeover between terms could make it difficult for the U.S. to sign off on any agreement. New personnel for former Vice President Joe Biden, if he wins the presidency, won’t come in until January, while Mnuchin and other top Treasury officials may not stay through a second term of the Trump administration. Stack spoke during a webinar hosted by the Tax Foundation on July 1…Stephen Shay, a professor at Harvard Law School and a former Treasury official during the Clinton administration, told Law360 that a change in administration could put off any agreement on the most contentious issues for months. Key officials at Treasury — the political appointees who would need to sign off on an agreement — don’t understand these tax issues “except at the very highest level,” he noted. “It is likely well into 2021 before you get meaningful U.S. engagement and sign off,” Shay said. “Biden may be much better organized than his predecessors, but that is an optimistic take.”

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How Joe Biden Could Undo Trump’s Damage to Environment

Donald Trump has smashed a lot of environmental china in four years. To name a few instances: he pulled out of the 2015 Paris Agreement (a move that becomes official on July 6, 2021); loosened automotive-mileage and power-plant-emission standards; and sought to eliminate the protected status of the sage grouse, opening up 9 million acres to oil and gas extraction. Reasonable minds may differ on the wisdom of any one of those moves, but no one can deny the unprecedented sweep of Trump’s policies. Data from Harvard Law School’s Environmental and Energy Law Program and Columbia University’s Sabin Center for Climate Change Law show that the President has signed more than 100 administrative rules, Executive Orders and acts of deregulation, 66 of which have gone into effect…It wouldn’t necessarily be easy. The U.S. would not simply be permitted to rejoin the agreement but would have to negotiate its way back in. One way to improve its chances would be for the U.S. to present an even more ambitious greenhouse-gas reduction target than it had before, says Joseph Goffman, the Harvard program’s executive director. That original target for the U.S. was a cut of 26% to 28% below 2005-level carbon emissions by 2025. If Biden agreed to more, he might win the U.S. the favor of the other 196 signatories to the pact, but then he would have to deliver; that’s where the work on the domestic side would begin…If presumptive Democratic presidential nominee Joe Biden defeats Trump in November, what could he do in his own four years to undo the work of the Trump era? “The biggest, flashiest thing would be for Biden to stand up on day one and say the U.S. is recommitting itself to Paris,” says Jody Freeman, director of the Harvard program. “We should make clear we’re going to take back the reins we’ve relinquished.”

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