I wanted to take a moment to share with you, as well as I’m able, where I think we are with President Biden, the 2024 nomination and the fallout from last week’s debate. Not where I think we should be, but where we are.
My sense is that as of this moment the critical stakeholders in the Democratic Party, elected officials, party officials, prominent voices out of office, funders, opinion columnists, etc. remain behind President Biden on the most tentative and contingent of bases. They are waiting to see how Biden manages in his sit-down interview with George Stephanopoulos which will be taped tomorrow and now, in a change of plans, will actually be aired tomorrow as well. There’s also a couple rallies in swing states over the weekend. Those will tell the story of whether Biden can regain confidence of these people, not only in his health status and wherewithal but also in whether he is able to run the kind of vigorous campaign required for victory.
My own sense, based not on any secret information but just taking stock of all the information out there, is that this is as much a matter of giving Biden the courtesy and respect of trying as it is based on a confidence that he can. It seems critical to note that I don’t think the standard here is any level of performance. It’s in the result. He needs to show up in a way wherein people who had decided or feared that he simply wasn’t able and vigorous enough to continue on the ballot say, “The debate was terrible. I thought he should step aside. But based on what I see from him I think he’s good to go, I think he’s ready to fight this campaign and win.” If they say that and mean that then that’s kind of it. And I think saying that and meaning that means whoever is saying it is confident Biden can shut down this conversation.
Thomas Jefferson played no direct role in authoring the federal Constitution. He wasn’t even in the country at the time. He was living in France as the U.S. Ambassador. Indeed he was at least equivocal about key elements of the document, despite the fact that much of it was the work of his friend and protégé James Madison, who kept him informed about the progress of events by post from the United States. But Jefferson was of course a central figure in the creation of the American Republic and a critical figure in defining executive power under the federal Constitution both as Secretary of State and one of two principal advisors to George Washington and then, later, during his two terms as President. He spoke clearly to the question at the heart of the Court’s immunity decision and very clearly disagreed with the reasoning and any idea that Presidents weren’t subject to the law.
I should start by saying that we don’t have just Jefferson to go on. You can’t read any part of the discussions of the Constitutional Convention, the discussions leading up to it or the debates over it, without seeing that the idea that the President would be immune from the criminal law over his conduct in office would have struck these people as simply absurd. But Jefferson himself came at the question later from a different perspective, not as a theoretical matter but as a retired chief executive who had actually wielded presidential and prerogative power and believed that at least in some cases he had exceeded his powers in the interests of the nation.
While the Supreme Court imbued the presidency with untold power, hobbled federal agency power and hollowed out the administrative state this term, it was actually amassing power to itself.
This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
In Oklahoma, the start of the school year is just six weeks away. But one closely watched school that had planned to open in 2024 is now in limbo: St. Isidore of Seville Catholic Virtual School, a tuition-free, online, K-12 institution.
St. Isidore received a controversial go-ahead from a state school board in 2023. Like all charter schools, it would have been funded with public money, but with more independence than typical public schools. St. Isidore’s would have been the nation’s first religious charter school, raising immediate concerns about its constitutionality.
Oklahoma’s attorney general, Republican Gentner Drummond, soon filed suit against the charter school board, arguing that the school would have violated both the state and federal constitutions. The dispute reached Oklahoma’s Supreme Court in April 2024.
The court rendered its decision on June 25. In a 7-to-1 judgment, the court invalidated the attempt to open St. Isidore, directing the statewide virtual charter school board to rescind its contract. Yet in a vote four days later, the board declined to do so, indicating the school would not accept public funding until July 25, 2025, at the earliest – essentially delaying its opening.
Charter schools are at the heart of the parental choice movement, which pushes for parents to have greater control in selecting where their children attend school, without having to pay private school fees. The country’s almost 8,000 charter schools educate about 3,700,000 students, or 7.4% of U.S. children.
Parent choice advocates may have thought the timing was right to try to open a faith-based charter school. Three recent U.S. Supreme Court cases expanded the boundaries of state aid to faith-based schools and their students, ruling that they cannot be denied generally available aid solely due to their religious status.
All three of the recent U.S. Supreme Court cases relied on a legal idea I have written about called the “child benefit test.” According to this construct, it is constitutional under some circumstances to provide public funds to students who attend faith-based schools, or to their parents – but not directly to the schools, as would have happened with St. Isidore.
The first of these cases, 2017’s Trinity Lutheran Church of Columbia v. Comer, dealt with a Christian preschool that was denied public grants to improve safety in its playground, which was open to the public when classes were not in session. School administrators sued, arguing that this constituted religious discrimination in violation of the First Amendment’s protections for freedom of religion. The high court agreed, reasoning that denying generally available funding, for which Trinity Lutheran was “otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
Three years later, Espinoza v. Montana Department of Revenue further opened up government aid to students attending faith-based schools. The court ruled that Montana’s tax credit program for parents sending their children to independent schools must apply even if those schools are faith-based.
In 2022, the court extended this perspective in Carson v. Makin. Maine, with its low population density, offers assistance to parents in areas lacking their own public schools to help pay tuition for other schools, as long as they are nonsectarian. The Supreme Court found that this program should also apply to parents without a local public school who wish to send their child to a religious school. The program was unconstitutional, the majority wrote, because it was not neutral toward religion, nor did it afford parents the opportunity to send their children to schools of their choice.
Rethinking church and state?
By expanding the boundaries of permissible aid, these three cases boosted proponents’ hopes for even greater public funding for faith-based schools and their students.
Yet, it is important to keep in mind what likely prompted these changes in the first place: new faces on the Supreme Court. A majority of today’s justices tend to favor the “accommodationist” interpretation of the First Amendment, meaning they largely reject the idea that it demands a “wall of separation” between church and state, so long as the government is not privileging one faith over another.
Nevertheless, the parameters of the “child benefit test” often used to justify greater public funding has been evolving for years. The concept – one that legal writers use to describe the Supreme Court’s arguments, not a term the justices use themselves – first emerged in a 1947 dispute from New Jersey, Everson v. Board of Education. In Everson, the court upheld a state statute that allowed local school boards to transport students to faith-based schools – mostly Roman Catholic ones – reasoning that the students, not the schools themselves, were the primary beneficiaries of state aid.
In St. Isidore’s case, Oklahoma’s high court primarily relied on the state’s prohibitions against aid to religious institutions. The court feared that enforcing the proposed school’s contract “would create a slippery slope and what the framers’ warned against – the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”
However, by barely acknowledging the trilogy of key Supreme Court cases permitting greater government aid to faith-based schools and their students, I think the panel left itself open to second-guessing and a possible appeal.
Within hours of the court’s ruling, Catholic leaders from the dioceses that would have overseen the school issued a statement saying they would “consider all legal options.” Days later, officials of the Archdiocese of Oklahoma City announced plans to appeal to the U.S. Supreme Court.
During oral arguments at the Oklahoma Supreme Court, Justice Yvonne Kauger asked an attorney for the state charter board, “Are we being used as a test case?” – possibly anticipating an appeal. Although the attorney said no, Kauger aptly responded, “It sure looks like it.”
Given the accommodationist perspective of a majority of justices on today’s U.S. Supreme Court, St. Isidore’s likely appeal bears watching. In the words of the eminent philosopher-baseball player Yogi Berra, “It ain’t over ‘til it’s over.”
This is an updated version of an article originally published on June 7, 2023. This article is republished from The Conversation under a Creative Commons license. Read the original article.
Donald Trump named election denier and indicted fake elector Michael McDonald as senior advisor to his Nevada campaign earlier this week, signaling that the battleground state will continue to be an area of Big Lie fixation if the Republican loses the state in November.
Whatever else happens in the coming days with the presidential election, the whole saga will permanently affect my understanding of the culture of The New York Times. It is not the first time that in the midst of a presidential contest the Times has deployed and leveraged all its editorial resources to achieve a desired goal. We saw it in 2016 on a couple occasions. Tonight a TPM Reader suggested I look at the front page, telling me …
Eight out of 8 top articles are about whether Joe Biden should drop out, whether he’s doomed to be defeated by Trump, etc. Five out of 10 op-ed articles are about the same topic; of those, 4 are toeing the Times line, one (by the sole nonwhite author today) says that only Trump benefits from forcing Biden out.
Number of articles about any of the Supreme Court’s decisions this term, including the immunity decision: zero. It was literally a one-day story in the Times.
Abortion advocates’ ballot initiative in Arizona, to enshrine abortion access in the state’s constitution, is well on its way toward getting on the ballot in the fall. Today, the organizers behind the Arizona for Abortion Access group submitted 823,685 signatures to election officials — more than double the 383,923 needed to get a constitutional amendment question in front of voters.
I don’t normally push people to our podcast. Maybe I should. But if you’re interested in what we think about the crisis at the top of the presidential ticket and, to a lesser degree, the Supreme Court immunity decision, I really recommend listening to this week’s podcast, which we will post soon — probably late this afternoon. There’s a lot going on and there are way more issues we address in the pod than I’ll possibly be able to write about today. So if you have questions about what we think on the numerous questions Democrats are wrestling with at the moment, that’s where to find the answers.
This may seem like a minor point. But I thought it’s worth saying because I have seen a minor rearguard argument to this effect: that the SCOTUS immunity decision doesn’t actually change any laws, doesn’t change what a president can and can’t do. It simply removes the possibility in many or most cases for post-presidency prosecution, something which has actually never happened in American history until last year. This is notionally a good point, but in a purely notional way. It’s true as applied to presidents who didn’t need this kind of hammer hanging over them. All of us are constantly through every day abiding by laws even though we’ve never been prosecuted — or at least most of you, maybe some have been prosecuted before — for breaking a criminal law. We report all our income on our taxes; we don’t fraudulently sign documents; we don’t steal from the store. Most of us act that way just because it’s the right thing to do, though most of us have been tempted at the margins. But laws work in complicated ways. Much of our understanding of what is the right thing to do is in fact conditioned by the laws themselves. As we’ve noted before, laws and prosecutions are not only to keep people in line and punish wrongdoers. They are how societies speak to themselves about what is acceptable and what is not.
Two thoughts on our current predicament. The first is that while people are seizing on this or that bad poll — and there are some — we now have seven polls in which we have before and after data from individual pollsters, before the debate and after. This is the only real way to judge the public opinion of last week’s debate. Putting all those together you have Biden going down one point and Trump remaining unchanged. This data point is certainly not determinative in itself about what should happen next or anything about the campaign. But from what I can tell it is the best systematic and data-driven look at the impact of this event which has consumed the political world and especially the Democratic Party for a week. The slight shift could in fact quite easily be explained simply by non-response bias. By any measure it is very limited.
