Weekly Mailbag - Trump and America's immune response

The second installment of a new regular weekly Q&A with your questions -- including a deeper dive into how federal law and the Constitution can be used to stop Trump

Welcome to the weekly mailbag Q&A! Leave a comment on this post to send your question for next week — subscribers here on Substack will get preference over folks from other platforms. Keep sending in those questions, and we can all keep each other sane. Maybe. Hopefully.

As much as it’s awesome to hear from everyone so quickly, I miss the analog days, when mail came once a day, and it was an event.

StephaniePYT: What are your thoughts on Trump and Ukraine?

Akin to how a wolf looks at a chicken about to be devoured by another wolf. Go ahead, comrade, just make sure to leave a leg for me. Trump is going to do his best to sell out the Ukrainians, which means the Biden administration — and the Europeans — need to do everything they can to prevent that in advance of January 20.

Releasing the remaining $300 billion (yes, $300,000,000,000) in frozen Russian assets and transferring it to Ukraine would be a good start.

HarryTrumanFan: So Gaetz resigned his current House seat - if Trump pulls his nomination, would Gaetz return in the new Congress because of his reelection?

There is no indication of this. Florida Governor Ron DeSantis has started the process for a special election for Gaetz’s seat. Gaetz would need to run to reclaim his seat. DeSantis does not have the power to fill a House seat. He does have the power to fill a Senate seat, though. So he could, in theory, appoint Gaetz to the Senate seat that will probably be vacated by Marco Rubio (who is, alas, likely to be confirmed as Secretary of State) even if Gaetz is not confirmed, or gets dropped by Trump, or gets pressured into withdrawing his name from consideration. That’s doubtful though.

Instead, I would bet that the most likely appointee for DeSantis to choose for the Senate seat is . . . DeSantis himself, as he’s now term-limited as governor, and his presidential aspirations did not exactly work out so well.

J. Falter: What kind of protections could President Biden put in place now for the Department of Education, social security, Medicare and Medicaid, and HHS that would make it harder for Felon and Co. to dismantle? (if all of that is too much to explore at at one sitting then anyone of those would be awesome)

We have a lot of the protections we need, already enshrined in law — we just have to use them assertively.

First, no president can unilaterally eliminate a department or agency created by Congress — and all of those institutions you listed were created by Congress (bills were passed, and the president at the time signed them into law). So Congress — not the president alone — must actually do the eliminating.

Even the Heritage Foundation has said this! Yes, that Heritage Foundation, the right-wing think tank that published Project 2025. They issued a research memo back in 2017, in the first year of Trump’s first term, knocking down the idea of unilateral presidential power to eliminate agencies or reorganize the government:

Under current law, the President has no statutory authority to reorganize the executive branch, except where acts of Congress delegate authority to make particular changes.

And there are no current applicable acts of Congress delegating any such authority, for any of the agencies in question.

Second, there is the Administrative Procedure Act (APA), which I wrote about the other day. It provides judicial review of lawless executive actions — parties affected by the action can sue to halt the executive branch from running amok.

The battles around agencies and proposed slashing of the federal government will be fought in Congress and the courts — and we need to be ready for them.

Laurus Nobilis: Why hasn’t Trump had to pay E Jean Carroll yet?

The appeals process has yet to play out. Unfortunately, that could take a while. Same for the $454 million civil fraud judgment that New York Attorney General Letitia James won from Trump last year.

Appeals generally take years. Yes, this is something we really need to fix — we need to add a lot more judges and a lot more law clerks working for those judges, so these absurd delays can be improved. But that’s a tale for another time.

We’ll cover all these stories as the appeals progress.

Marcy Kwiatkowski: What is the rationale for a “hiatus” of NIH research into Infectious diseases for 8 years by RFK Jr? Do you think this would be approved?

That’s a good question, because I cannot possibly fathom what an actual rationale here would be. And I also know what the rationale cannot be:

• We seem to have infectious disease under control - not a big threat (nope)

• Vaccines are very bad and do far more harm than good (100% debunked)

• There is too much of a cozy relationship between Big Pharma and NIH (a talking point that the Trumpers have adopted; even if one could argue this is true, the solution is to combat the coziness, not to stop all research)

None of these pretexts for a hiatus is likely to succeed under anything resembling objective review by a federal judge.

In other words, any “hiatus” can be challenged by a lawsuit under the APA — and unless it goes in front of a judge who has chugged the anti-vax Kool Aid, I believe we would be likely to see an injunction against the hiatus, followed by a full review, then an appeal process, and then by a round of prayers that there are not five Supreme Court justices that would go along with Captain Brainworm on this one.

Though, when I phrase it like that . . . you might want to triple-check that you have all your immunizations, just in case.

Janet (CO): My understanding is that the Equal Rights Amendment has been ratified by all 50 states and it’s just awaiting Biden finalizing it and sending it to the archivist. Am I wrong about this? Why on earth will he not move forward with this? This is something very easy that he could do before leaving office.

Unfortunately, this is not something Biden can do on his own.

The ERA was passed by the requisite 3/4 of the states (when Virginia ratified in 2020), but the issue is a bit more complicated.

The problem is that there is a debate over the applicability of a 7-year time limit for the original amendment, which was passed in 1972. There are strong arguments that the time limit is unconstitutional — and that it was not in the original amendment sent to the states and therefore not binding. A number of states tried to sue so a court could decide the issue, but the DC Circuit determined the states lacked standing to sue.

Congress could fix the problem with a simple majority vote. One more reason to fight for House and Senate majorities.

Maryland Crab: Can Biden expand the Supreme Court before January 20?

While it’s fun to joke that SCOTUS’s (terribly misguided) presidential immunity doctrine gives Biden the power to do all sorts of crazy things before he leaves office, unilaterally expanding the Supreme Court is not in the cards — and it would be an especially lethal precedent to set right now.

Why? Trump is trying to say that he has all sorts of power to ram his upcoming nominations through without the constitutionally required Senate approval. If Biden were to try to expand the Court without Senate approval, then it would validate Trump doing the same.

Let’s game it out. Biden appoints 4 new justices, yielding a 7-6 majority of Democratic appointees on the Court. Well, then what would stop Trump from forcing in 2 more justices of his own, giving the conservatives an 8-7 majority? And in the meantime pushing through all of his most cancerous cabinet picks? And being emboldened to go even further?

As much as I believe the Court ought to have term limits — plus more justices and more law clerks so they can decide more cases faster — we cannot do so in contravention of the Constitution. Especially right now.

Ed Colman: Since there appears to be a vacuum in Democratic Party leadership at the moment, who do you see emerging as the new leader? Biden is out, Harris the defeated candidate, so who will step up to lead the resistance? Or are we totally on our own?

Is it so bad if we are on our own? If we need to build new communities and new institutions from the ground up? This has been the topic of a lot of conversation within Resistance circles — and we really think that the time has come for us to work together to build a whole new movement, ourselves. But I digress. More on that effort soon.

I do think that in terms of leading voices, the Democratic Party has plenty, and a number of them have been especially vocal since the election (AOC, Newsom, Beshear, Buttigieg, Crockett, to name a few). And I think it’s a good thing if we have an array of leaders rather than just one. There will be time enough to figure out 2028. First we need to make sure we stick together and support one another and fight as hard as we can for the next several years.