As a resident of California, I’ve been following this story, and wrote up the latest development for New York:

Under the Trump administration, the Environmental Protection Agency has generally been more interested in relaxing rather than strictly enforcing laws regulating pollution. Keeping water clean, in particular, has not been a priority, as the Los Angeles Times observes:

“Earlier this month, the agency [EPA] announced that it was rolling back Obama-era protections on wetlands and streams — regulations that environmentalists said are necessary to protect drinking water but that farmers and developers have long opposed.

“Under Trump, the EPA has also delayed setting a drinking water safety standard for a class of cancer-causing chemicals, known as PFAS, that has been found in public water systems throughout the country.”

So the EPA’s suddenly stern attitude about water pollution in California, which it blames partly on the homeless, is pretty clearly just another front in the administration’s ongoing war with the Golden State:

“The Trump administration notified California officials on Thursday that it is ‘failing’ to meet federal water-quality standards, attributing this in part to homelessness.

“An oversight letter addressed to Gov. Gavin Newsom alleges that San Francisco, Los Angeles and the state “do not appear to be acting with urgency to mitigate the risks to human health and the environment that may result from the homelessness crisis.”

“EPA Administrator Andrew Wheeler warned that the agency is ‘concerned’ about the state’s handling of public water systems.

“’The agency is aware of the growing homelessness crisis developing in major California cities, including Los Angeles and San Francisco, and the impact of this crisis on the environment,’ Wheeler wrote. ‘Based upon data and reports, the agency is concerned that California’s implementation of federal environmental laws is failing to meet its obligations required under delegated federal programs.'”

You may recall that Wheeler is a former lobbyist for the coal industry, and also a former aide to Senator James Inhofe, author of that great environmentalist tome, The Greatest Hoax: How the Global Warming Conspiracy Threatens Your Future.

It’s clearly not a coincidence that on a recent fundraising trip to California, the president spent considerable time mocking the Democrats who govern the state and its largest cities for a homelessness crisis that he and his allies attribute to excessive regulation — particularly environmental regulation. This was his parting shot, as reported by NBC News:

“From Air Force One, Trump, who had been in California for a two-day fundraising trip, blamed the homeless population for environmental issues. ‘There’s tremendous pollution being put into the ocean,’ he said, noting ‘there are needles, there are other things.’

“’We’re going to be giving San Francisco — they’re in total violation — we’re going to be giving them the notice very soon,’ Trump said.

“’The EPA is going to be putting out a notice and you know they’re in serious violation and this is environmental, very environmental,’ Trump said. ‘And they have to clean it up. We can’t have our cities going to hell.'”

Wheeler’s letter indicates that Trump wasn’t just trolling Californians and the homeless when he complained that homeless people keep wealthy people like himself from going about their important business. In theory, the EPA could take over enforcement of clean water rules in the state, though that would be pretty bad for clean water. But the targets of the administration’s ire are pretty hot about it, as Nathan Click, Governor Gavin Newsom’s spokesperson, told the Washington Post:

“’The president is abusing the powers of the presidency and weaponizing government to attack his political opponents,’ Click said. ‘This is not about clean air, clean water or helping our state with homelessness. This is political retribution against California, plain and simple.'”

There’s a lot of that going on, particularly when it comes to environmental protection:

“In recent weeks, Newsom and other top California officials have denounced Trump for targeting the state on several fronts. In the past month alone, the administration has moved to revoke the state’s long-standing right to limit air pollution from cars, began investigating an agreement with four automakers for possible antitrust violations and threatened to withhold federal highway funds if California does not do more to clean up its air.”

Just yesterday, California attorney general Xavier Becerra announced he was participating in a 17-state effort to stop the administration’s evisceration of the Endangered Species Act. It’s the 62nd federal lawsuit Becerra has launched against Team Trump.

By sheer coincidence, Wheeler’s “notice” to California came out the same day as a Los Angeles Times analysis of new polling data suggesting that Trump is “on track for the poorest showing by a Republican presidential candidate in the state since the Civil War.” POTUS almost certainly could not care less.

During this momentous week in Washington, a critical question came up that I discussed at New York:

Now that Nancy Pelosi has set House Democrats firmly and (probably) irreversibly on the road to impeaching Donald Trump, she and they must make the fateful decision about which examples of misconduct to prosecute. As Lawfare observes today, Trump’s behavior “presents what the military calls a target-rich environment.” Should they go wide and include various high crimes and misdemeanors? Or go narrow and stick to the latest and hottest controversy, i.e., the president’s petitioning a foreign government to help his administration smear a political enemy?

Already, people are weighing in:

IMO these are the main lessons from Russia for Dems to consider:

1. Be narrow and specific; focus on Ukraine, not other stuff.
2. Don’t overpromise on details unless you can deliver.
3. Emphasize the threats to election integrity.
4. Stay unified.
5. Work quickly & urgently.

— Nate Silver (@NateSilver538) September 24, 2019

And from longtime impeachment enthusiast Brian Beutler, this dissent from the idea of single-issue impeachment:

All connected investigations will become dead letters the moment the Senate rushes to acquit Trump on narrow articles.

There’s no framework for investigating corruption other than the one Dems just established, so the process must continue until the investigations are done.

— Brian Beutler (@brianbeutler) September 25, 2019

It’s a little hard to determine exactly where Pelosi is. Multiple outlets are reporting that she wants the House to narrowly focus on Trump’s Ukraine gambit. Here’s how Politico has heard it:

“The strategy, described by Democratic lawmakers and aides familiar with the talks, would center on streamlining the consideration of articles of impeachment to focus exclusively on Trump’s efforts to pressure Ukrainian President Volodymyr Zelensky to investigate Joe Biden — a push they say included an implicit threat to withhold military aid to the eastern European country….

“’This has clarity and understanding in the eyes of the American people,’ Pelosi told her leadership team, according to a source with knowledge of the meeting.”

But then the very next sentence of Pelosi’s quote undermines the idea of staying narrow: “If we do articles, then we can include other things.”

“Articles” means “articles of impeachment,” presumably the endgame for House Democrats at this point. So perhaps Pelosi wants to begin with hearings focused on Ukraine, see how it goes, and then consider broadening the scope of impeachment articles before taking the final leap. Nobody really knows at this point.

The author also thinks that pursuing Trumpian malfeasance before he became president would create an unhelpful side dispute as to whether actions as a private citizen can be impeachable.

That doesn’t mean the “crisp and clear” approach requires a narrow scope: Lawfare recommends four major areas of inquiry beyond the Ukraine scandal: (1) obstruction of justice (as shown by Mueller and others); (2) use of law-enforcement resources to attack or punish political opponents; (3) obstruction of lawful congressional investigations and oversight; and, my personal favorite, Trump’s habit of lying:

“The 1974 article of impeachment concerning Nixon’s obstruction of justice also noted his lies to the public about the Watergate investigation: Nixon, the Judiciary Committee charged, made ‘false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted’ on the Watergate matter and that White House and Nixon campaign officials had no involvement in the burglary. Kenneth Starr also suggested an article of impeachment against Clinton for ‘mis[leading] the American people,’ though Congress declined to adopt this article. Trump has rather outdone prior presidents in the lies department. The Washington Post ‘Fact Checker’ database of presidential dissembling as of Aug. 5 had documented 12,019 “false or misleading statements” by Trump since he took office. The Mueller report documents multiple instances in which the president and administration officials speaking on his behalf knowingly lied to the public. His tenure has genuinely posed the question of whether the president has any obligation at all to tell the truth about anything—ever. His presidency is, among other things, advancing the proposition that the idea of “faithful” execution of the law implies no duty of candor at all.”

So even if the House impeachment inquiry in its next, more purposeful phase begins with a narrow focus on the latest Trumpian outrage, you have to figure it will eventually broaden to include some of the lowlights of this president’s low behavior — unless the Ukraine scandal has the kind of yet-to-be-revealed details that will get a majority of the public behind impeachment. Since the odds of the Senate’s actually convicting the president are virtually nil, impeachment might still damage the president’s credibility enough to make his ejection from office by the public very likely.

During a week in which there was a lot of talk about the Supreme Court, Jamelle Bouie wrote an interesting column that I decided to build on for a bit of history and strategy at New York.

American history classes often treat FDR’s 1937 “court-packing” scheme — a proposal to expand the size of the Supreme Court by adding as many as six justices — as a classic example of presidential overreach, which led to a widespread backlash even among Democrats and represented a high-water mark for New Deal audacity, subsequently curtailed. It’s not as well remembered that the Lochner-era conservative majority on the Court, in the habit of holding that virtually all economic regulation by Congress violated the due-process clause of the 14th Amendment, was posing an existential threat not only to the New Deal but to democratic governance. It’s also sometimes forgotten that while FDR’s court-packing threats failed to secure congressional support, they did help frighten Justice Owen Roberts into quietly switching sides and ensuring validation of key New Deal legislation by the Supreme Court (the legendary “switch in time that saved nine”).

In other words, the legitimacy and independence of the Court were called into question not by FDR but by his opponents, and he found a way, however indirect and noisy, to restore the balance. As Jamelle Bouie notes in a New York Times column, a future Democratic president may find herself in similar straits:

“Trump’s Supreme Court appointments are mired in controversy. Justice Neil Gorsuch occupies a stolen seat, held open during Obama’s tenure by a blockade conducted for nearly a year by McConnell, who cited a previously nonexistent “tradition” of tabling nominations made in an election year. (In the 20th century alone, the Senate confirmed Supreme Court nominees in five different presidential election years — 1912, 1916, 1932, 1940 and 1988). And of course Justice Brett Kavanaugh was confirmed last September under clouds of suspicion that stemmed from accusations of sexual assault and sexual misconduct to a bevy of ethics complaints.

“Democrats are left in an unenviable position. Should they win a federal ‘trifecta’ — the White House, the Senate and the House of Representatives — they’ll still have to deal with a Trump-branded judiciary. It’s entirely possible that a future Democratic agenda would be circumscribed and unraveled by a Supreme Court whose slim conservative majority owes itself to minority government and constitutional hardball.”

You could add to Bouie’s case that the traditional norms of judicial politics have already been shattered. There’s the fact that Donald Trump broke every taboo by explicitly promising conservative Evangelicals a SCOTUS that would abolish a federal constitutional right to choose abortion, and then set up an outsourced and fiercely ideological judicial-selection process that is radically reshaping all federal courts. But he’s fundamentally and critically correct that what’s at stake in the immediate future isn’t just this or that constitutional precedent, but the ability of a popular majority to enact an agenda, at a time when one of the two major parties has committed itself to minority rule. So if Democrats gain power in 2020 or 2024, they could find themselves in the same position as their New Deal predecessors — or perhaps an even more dire situation, since today’s reactionaries are deliberately entrenching their allies throughout the federal judiciary, not just the Supreme Court.

So is it time for Democrats to openly talk about court-packing or something similarly radical-sounding? Bouie thinks so, and seven Democratic presidential candidates (Cory Booker, Steve Bullock, Pete Buttigieg, Kamala Harris, Wayne Messam, Elizabeth Warren, and Andrew Yang) have told the Washington Post they are “open” to the idea. Only Buttigieg has released a specific proposal (an expansion of the court to 15 members, with five nominated by each party and five more with short-term appointments chosen by SCOTUS consensus). Perhaps the alarming head count of Trump judges, and/or fresh allegations against sitting SCOTUS justices like Brett Kavanaugh, will make judicial appointments and their number and duration a 2020 primary issue among Democrats.

But it’s even more likely that any such talk will provide new fodder for the Trump/GOP message that today’s Democrats are dangerously radical and contemptuous of constitutional norms (not that court-packing is the least bit unconstitutional if it’s done by Congress). At a minimum, conservatives will spend a lot of time telling Christian-right audiences that Democrats are now fighting fire with fire and plan to thwart their own government-by-judiciary schemes aimed at a constitutional counterrevolution. And let’s face it: All the threats to democracy that Bouie and others are warning of will get a lot worse right away if Republicans hang on to the White House and the Senate in 2020. If discussion of judicial reform makes that even infinitesimally more likely, it’s probably a topic that should be placed on a back burner until after the election.

And if things do turn out well for Democrats and they enjoy a governing trifecta in 2021, they could emulate FDR in utilizing court-packing or similar reforms as a way to get the attention of conservatives and perhaps secure their agreement to de-escalate their politicization of the courts. There’s quite a bit of evidence that FDR really wanted to change the pattern of ancient justices hanging on to Court seats forever (their retirement incomes had recently been slashed by Congress, which didn’t help) while awaiting a president of their party to appoint a successor. If moral suasion doesn’t work, term limits for judges could have a much larger and more permanent impact than court-packing schemes (especially if expanded beyond SCOTUS), and just as importantly, it’s a popular idea. A 2018 Ipsos/UVA poll showed 70 percent of Americans — and big majorities of Democrats, Republicans, and Independents — favoring term limits for SCOTUS.

In any event, whether or not they embrace specific reforms, Democratic presidential candidates and the progressives whose votes they are currently seeking need to make the shape of the federal judiciary a big-time campaign issue for 2020 — much as Trump’s conservative Evangelical backers did in 2016.

In the back-and-forth over Kavanaugh and other SCOTUS-related talk this week, I saw the name of a senator weighing in that make the bile rise, so I wrote about it at New York:

Personally, I wasn’t a big fan of the lurch toward impeachment of Brett Kavanaugh that some Democrats made over the weekend. And I’m at least ambivalent about the court-packing schemes that Pete Buttigieg and others have embraced. But in both cases we don’t need any lectures from Republican officeholders about respect for precedents involving the judicial branch — not unless they are willing to admit their party denied President Obama’s SCOTUS nominee Merrick Garland the hearings and confirmation vote he deserved.

And of all the Republicans who need to keep a low profile on this issue, I’d put Missouri’s young semi-theocratic Senator Josh Hawley near the top of my list. Yet here he is telling The Hill he’s terrified for the Constitution:

“’You know, they want to impeach Justice Kavanaugh, they want to pack the Supreme Court, I mean talk about destroying any institution they can’t control. It’s really unbelievable. This is a Democrat party that increasingly is at war with the American constitution,’ Hawley said.”

Last time I looked, both impeachment of judges and Congress’ power to regulate the size of the federal courts were right there in the constitution. I’m sure Hawley, a Yale Law School grad and a very bright boy, knows that. So maybe he is referring to that hazy concept, the spirit of the constitution?

“'[Democrats are] willing to destroy an entire branch of government, the independent judiciary; they want to destroy it why? Because it won’t rule the way they want it too. I mean is there anything more dangerous to constitutional government than that way of thinking.'”

I dunno, senator. I’d say this way of thinking is pretty inimical to constitutional government, too:

“Scripture teaches that political government is mandated by God for his service and is one means by which the enthroned Christ carries out his rule….

“These things together tell us something quite important about what government is for, and what Christians should be trying to do with it and with politics. Government serves Christ’s kingdom rule; this is its purpose. And Christians’ purpose in politics should be to advance the kingdom of God — to make it more real, more tangible, more present.”

That was Hawley in 2012. If that’s too long ago to be considered relevant (I don’t think it is, at all), there’s this reflection on constitutional liberty from a speech he made earlier this year:

“Perhaps the most eloquent contemporary statement of Pelagian freedom appears in an opinion from the United States Supreme Court, in a passage written by former Justice Anthony Kennedy. In 1992, in a case called Casey v. Planned Parenthood of Southeastern Pennsylvania, he wrote this: ‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’

“It’s the Pelagian vision. Liberty is the right to choose your own meaning, define your own values, emancipate yourself from God by creating your own self. Indeed, this notion of freedom says you can emancipate yourself not just from God but from society, family, and tradition.”

I’d say treating the idea of individual liberty as the devilish reflection of an ancient heresy professing the perfectibility of human nature is more than a little hostile to the spirit of the constitution.

Perhaps a clue to Hawley’s strange attitude on this subject is that he likes to use the self-identifying label of “constitutional conservative.” This particular code-term, which was briefly in fashion at the height of the Tea Party Movement, is actually pretty radical, as I explained in 2014:

“It basically holds that a governing model of strictly limited (domestic) government that is at the same time devoted to the preservation of ‘traditional culture’ is the only legitimate governing model for this country, now and forever, via the divinely inspired agency of the Founders. That means democratic elections, the will of the majority, the need to take collective action to meet big national challenges, the rights of women and minorities, the empirical data on what works and what doesn’t–all of those considerations and more are so much satanic or ‘foreign’ delusions that can and must be swept aside in the pursuit of a Righteous and Exceptional America.”

That sounds like Josh Hawley, all right, who in 2018 had this to say about his wicked country:

“Excerpts of an audio tape have leaked of Hawley speaking to a conclave of Christian-right activists in December that’s more than a little out there, blaming the scourge of human trafficking on the sexual revolution of the 1960s and ’70s. Sexual freedom leads to sexual slavery, he explained.

“’It ends in the slavery and exploitation of young women. It will destroy our families,’ he said, per the Kansas City Star. ‘You know what I’m talking about, the 1960s, 1970s, it became commonplace in our culture among our cultural elites, Hollywood, and the media, to talk about, to denigrate the biblical truth about husband and wife, man and woman.'”

Yes, that’s the sort of thinking that has made Hawley the poster boy for a sinister sort of post-Trumpian conservatism that tends to pursue authoritarian means to achieving its godly ends.

It’s never too late to do some fresh thinking about old political assumptions, and that’s what I tried to do this week at New York:

There are two bits of conventional wisdom about “swing voters” in this day and age that are often accepted without discussion. The first is that these critters have been all but hunted to extinction, or more specifically, have fled into one of the two partisan trenches from the “middle ground” poisoned by polarization. The second is that swing voters are discerning and sensitive souls who equally disdain the fanatics in the donkey and elephant herds, and long for sweetly reasonable compromise “solutions” between left and right. You know, people who nod their heads at newspaper editorials and think Howard Schultz makes sense.

With the benefit of a robust data set of registered voters provided by the Kaiser Family Foundation, Charlie Cook does a pretty good job of blowing up both of those preconceptions.

First off, there are a lot more swing voters than you might think — as long as you understand how they are defined:

“Thirty percent of the respondents, a total of 603, can be called swing voters, who were either undecided or only ‘probably’ going to vote for either Trump or the Democrat. Of the 9 percent who said they would probably vote for Trump, just over half (5 percent of all voters) said there was a chance they would vote for the Democrat, while 4 percent said no chance. Of the 13 percent who would probably vote for the Democrat, just a quarter (3 percent of all voters) said that there was a chance they would vote for Trump, while the others said there was no chance. Those who only probably would vote for one candidate but definitely would not vote for the other have a good chance of either not voting or throwing a vote to a third-party candidate.”

There’s a lot to unpack here. The genuine “undecided” vote is only 8 percent — a number which, historically, is likely to go down as we near the general election. And of the 22 percent who are leaners, 14 percent are not “swinging” between the two major parties, but swinging between voting for one of those parties, voting for a minor party, or staying home. So nearly half of “swing voters” are really more like base voters who need to be convinced to show up at the polls without straying into the ranks of the Greens or the Libertarians. And of the other half, roughly equal shares are truly undecided or are predisposed toward one party or the other (with Democrats holding a significant advantage in that respect).

“When asked, ‘How much attention do you normally pay to what is going on in national government and politics?’ 57 percent of voters and 68 percent of decided voters said they pay a lot of attention, but only 39 percent of swing voters said so. Twice as many swing voters said they pay only a little attention or none at all—17 percent, compared with just 8 percent of those who are decided.

“Not surprisingly, fewer swing voters believe it is important who wins. When asked whether it really matters who wins, somewhat matters, or doesn’t really matter, 82 percent of all voters and 92 percent of decided voters said they believe it matters, but just 66 percent of swing voters said they believe it really matters.”

So these are on average less informed, less discerning voters who often can’t tell the difference between two parties that offer wildly different visions for America’s future and the rights our citizens should possess. They tend to be younger, which means higher personal mobility, fewer connections to civic life, and a significantly lower probability to vote. I strongly suspect their relatively high level of self-identification as “moderates” has little or nothing to do with some “centrist” policy agenda, and more to do with a disinclination (or incapacity) to think ideologically at all.

This goes to a third misconception about swing voters that Cook doesn’t explicitly address, but that follows from his analysis. Traditionally, it is assumed that parties and candidates must choose between “mobilization” strategies aimed at base voters and “persuasion” strategies aimed at swing voters. Ideally, you want to do both, but there is an inevitable tension between beating on people with big sticks to go smite the partisan foe (one of the oldest and most important “mobilization” techniques is known as “knock and drag,” which means exactly what it sounds like), and convincing voters who are likely to vote to go your way rather than the other.

But if the most typical swing voters are, as Cook suggests, those who aren’t motivated to vote, and need convincing not that one candidate is better than the other but that the choice is consequential, then beating on them with big sticks makes a lot of sense, too — particularly for Democrats who lost a lot of crucial voters in 2016 because they figured Clinton had already won. Will such efforts sometimes fail? Yes, but again, the odds are that the turned-off swing voter won’t join the ranks of the opposition but will go to work or stay home on Election Day and make evening plans to watch washed-up pols compete on Dancing With the Stars.

As Cook concludes, we may not know how many “swing voters” are actually going to vote until the last minute:

“The key takeaway from this analysis is that while swing voters don’t look too different from the overall electorate in terms of demographics, they are very different temperamentally. Since they pay less attention than other voters and are less likely to believe that the outcome is important, you just have to wonder how many of these undecided will really vote. Further, we can expect those who do to check into the race very late.”

If the 2020 race goes down to the wire looking very close, swing voters “checking in” to politics at the last minute will be hit with an intense barrage of claims that this is the most important moment in American history since at least 1861. And that’s more likely to get them off the sofa than all the split-the-differences compromise policy proposals you can imagine.