Rabu, 30 November 2016

Donald Trump v. the First Amendment, part five

The president-elect woke up Tuesday morning with a clear agenda before him. Poised to announce his pick of Rep. Tom Price to lead the Department of Health and Human Services and with a day of meetings slated â€" including one with onetime foe Mitt Romney â€" Donald Trump hopped on Twitter to talk about where his attention was focused.

Disparaging CNN and â€" more unexpectedly â€" reigniting the once-virulent debate over flag-burning.

Where this came from is anybody's guess. (Update: Apparently it overlapped with a Fox News segment.) There's an operating theory among some that Trump throws out tweets like this to distract attention from something else, as though 140-character messages demand our total (100 percent) brain capacity. On MSNBC's “Morning Joe,” host Joe Scarborough speculated that maybe Trump was tossing a bit of red meat to the angry social media lions before announcing that he would pick Romney as secretary of state.

The suggestions of this tweet and the context in which it was issued, though, make it far from just a simple distraction.

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Flag-burning is not an issue that has occupied a central position in the American political consciousness of late. It's absolutely the sort of fight that Trump would relish, mind you, pitting egghead supporters of “free speech” and “the First Amendment” against the patriotism of people who find flag-burning unacceptable.

Some quick history is in order. Fights over how the flag is depicted have been fought at the Supreme Court for more than a century, including the 1989 decision Texas v. Johnson which established that burning the flag was a constitutionally protected act.

One of the justices who supported that 5-4 decision was Antonin Scalia, the jurist whose death earlier this year created the vacancy that it seems Trump will get to fill â€" with someone, he has said, he hopes will be “in the mold” of Scalia. Scalia also voted to protect flag-burning when Congress passed a national law hoping to avoid the problems of Texas v. Johnson â€" even though he found the practice to be repugnant.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he said last year, adding an important disclaimer: “But I am not king.” In an interview with CNN, he explained the distinction simply: Flag-burning is a form of expression, and therefore is protected by the First Amendment.

A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)

Congress has tried to work around the decision. Shortly afterward, it passed a law banning flag-burning, which was again thrown out (with Scalia's agreement). A decade ago, the Senate narrowly failed to approve a constitutional amendment banning flag-burning, with now-Senate Majority Leader Mitch McConnell (R-Ky.) voting in opposition.

“If there is a bedrock principle underlying the First Amendment,” Justice William Brennan wrote in response to the decision to strike down the 1989 federal law, “it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Trump doesn't seem to adhere to this idea. He has railed against the oppositional media repeatedly, suggesting at one point that he might “open up” libel laws to make it easier to sue the media. He disparaged protests earlier this month as being incited by the press and being illegitimate because the protesters were paid (a claim for which there's no evidence). When protesters in Chicago disrupted one of his rallies, he suggested that they should be thrown in jail. His proposals to address the threat of terrorism often seem to tiptoe beyond the free expression of religion boundaries established in the Bill of Rights.

When Trump finds free expression offensive or disagreeable, he seeks to curtail it and, in some cases, impose harsh penalties. The suggestion that those who burn flags should lose their citizenship is remarkable in part because it's such a drastic response â€" one that would itself rescind any number of legal protections to which the culprit would otherwise be entitled. Incidentally, this suggested punishment is barred as a result of a 1958 decision from the Supreme Court, as Louis Nelson notes at Politico.

We've often seen Trump dash off a Twitter opinion that goes no further. There's a fair argument to be made that, in the absence of any broader debate or proposed policy, this tweet about the flag should be treated as a curiosity. But it comes on the heels of Trump tweeting about how the results of the election should be questioned because of fraud (something that, again, lacks evidence). It's a pattern of pushing back against fundamental pillars of our democracy: elections, free speech, Supreme Court decisions. He has every right to do so, of course. If nothing else, that's important context. And it reinforces a desire to treat those who oppose him or his values harshly, even when he lacks the power to do so.

Why now? Who knows. Given the attention he has paid of late to casting his opponents in a negative light (like those claims about “voter fraud” that were the subject of his tweets Monday), perhaps he wants to force them to defend an unpopular position. Perhaps he even hopes that protesters will appear outside Trump Tower and burn flags. That certainly wouldn't hurt his efforts to rally support from otherwise indifferent Americans.

Anyway. Time for Trump to tick off the next items on his to-do list. Something about putting together a government? With the important stuff done, might as well move on to that.

More from The Fix: 

Why we can’t â€" and shouldn’t â€" ignore Donald Trump’s tweets

A running list of how Donald Trump’s new position may be helping his business interests

Steve Bannon once suggested only property owners should vote. What would that look like?

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Selasa, 29 November 2016

Donald Trump’s Agenda: Find a Secretary of State, Tweet Often.

"@HighonHillcrest: @jeffzeleny what PROOF do u have DonaldTrump did not suffer from millions of FRAUD votes? Journalist? Do your job! @CNN"

"@JoeBowman12: @jeffzeleny just another generic CNN part time wannabe journalist !" @CNN still doesn't get it. They will never learn!

"@FiIibuster: @jeffzeleny Pathetic - you have no sufficient evidence that Donald Trump did not suffer from voter fraud, shame! Bad reporter.

"@sdcritic: @HighonHillcrest @jeffzeleny @CNN There is NO QUESTION THAT #voterfraud did take place, and in favor of #CorruptHillary !"

.@CNN is so embarrassed by their total (100%) support of Hillary Clinton, and yet her loss in a landslide, that they don't know what to do.

I thought that @CNN would get better after they failed so badly in their support of Hillary Clinton however, since election, they are worse!

Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!

"

| Donald | Trump’s | Agenda: | Find | Secretary | State, | Tweet | Often. | @HighonHillcrest< | @jeffzeleny< | what | PROOF | have | DonaldTrump | suffer | from | millions | FRAUD | votes | Journalist | your | job! | @CNN< | p>@JoeBowman12< | just | another | generic | part | time | wannabe | journalist | still | doesnt | They | will | never | learn!< | p>@FiIibuster< | Pathetic | sufficient | evidence | that | Trump | voter | fraud | shame! | reporter | p>@sdcritic< | There | QUESTION | THAT | voterfraud< | take | place | favor | CorruptHillary< | embarrassed | their | total | (100%) | support | Hillary | Clinton | loss | landslide | they | dont | know | thought | would | better | after | failed | badly | however | since | election | worse!< | p>Nobody | should | allowed | burn | American | flag | there | must | consequences | perhaps | citizenship | year | jail!< |

Donald Trump Chooses Tom Price as Health Secretary

WASHINGTONâ€"President-elect Donald Trump has chosen top officials for health-care policy, picking House Budget Committee Chairman Tom Price (R., Ga.) as secretary of the Health and Human Services Department, the sprawling agency that will likely dismantle Democrats’ 2010 health-care overhaul.

Mr. Trump on Tuesday also named Seema Verma, a consultant who helped Vice president elect Mike Pence negotiate a groundbreaking Medicaid deal with the Obama administration, as the head of the Centers for Medicare and Medicaid Services.

Mr. Price, a 62-year-old former orthopedic surgeon, is one of several GOP physicians who sought to carve out a leading role in shaping the party’s health policy and, in particular, the party’s alternative vision to Democrats’ Affordable Care Act.

Much of his criticism of the law has centered on the authority it gives to the federal government, and to the agency that he may now head.

“We think it’s important that Washington not be in charge of health care,” the six-term congressman said in an interview this summer. “The problem that I have with Obamacare is that its premise is that Washington knows best.”

Mr. Price has championed his own legislation, the Empowering Patients First Act, since 2009, taking a position on a number of hot-button issues for conservative health policy thinkers. In its latest iteration, the proposal includes refundable, age-adjusted tax credits for people to buy insurance if they don’t have access to coverage through an employer or government program. People in a government program, such as Medicare, Medicaid or Tricare, would also be allowed to opt out of it and get tax credits toward the cost of private coverage instead.

Mr. Price had previously included tax deductions in his plans, a tool typically favored by harder-line conservative health-policy thinkers, but said he had “moved towards credits because we felt it was cleaner.”

The plan offers a one-time credit aimed at boosting health-savings accounts, long described by supporters as a way of bringing down medical spending, and derives part of its funding from capping how much employers can spend on providing employee health care before being taxed. The plan seeks to make health insurance available to individuals with pre-existing medical conditions by helping states set up new “high-risk” pools or other programs for such enrollees, and sets new rules allowing insurers to sell policies across state lines.

But Mr. Price, whose rise in the congressional ranks began at the conservative Republican Study Committee and then steadily climbed, has already said he is open to compromise with fellow GOP lawmakers on many points.

“There’s a genuine desire to have us coalesce around a single plan so that the American people can see who’s trying to solve these challenges,” he said in June. “I wouldn’t draw any lines in the sand other than that the path that we’re on doesn’t work.” Soon after, House Speaker Paul Ryan (R., Wis.) announced that House Republicans led by Mr. Price and three other committee chairmen had reached agreement on a unified proposal, “A Better Way” that included some of Mr. Price’s ideas.

Mr. Price spent a 20-year medical career in Atlanta, where he also undertook his residency. He went into state politics when Republicans were still a minority in Georgia. After they took control, he became the first Republican Senate Majority Leader in the history of the state, he says in his official biography.

In the U.S. House, where he has served since 2005, Mr. Price has voted consistently against federal funding of abortion, and in opposition to federal requirements that insurance plans cover contraception without out-of-pocket costs as part of the Affordable Care Act.

As a Georgia state senator, Mr. Price had voted for a state requirement that insurance companies cover contraception in their prescription-drug plans. The difference, he said when asked about it in 2012, was Washington. “The issue here…is whether or not the federal government ought to be deciding what health coverage is,” Mr. Price said.

If he is confirmed by the Senate, Mr. Price’s duties will include overseeing a 78,000-employee department whose responsibilities go far beyond the Affordable Care Act. They include running the Medicare insurance program for the elderly, overseeing the Medicaid insurance program for low-income Americans, funding medical research at the National Institutes of Health, operating the Food and Drug Administration, and advocating for public health with the Centers for Disease Control and Prevention.

Ms. Verma, 46 years old, helped Indiana win major conservative concessions in exchange for agreeing to Medicaid expansion. She has aided other conservative states seeking similar arrangements with Washington. She also must be confirmed by the Senate. The CMS oversees insurance programs for 100 million Americans as well as key aspects of the Affordable Care Act.

The repeal of the 2010 health law, long sought by Republicans, will likely fall to the White House and Mr. Price’s GOP colleagues in Congress in the first instance. In their first days in office, Mr. Trump could take executive action to void parts of the law, destabilizing it. Congressional Republicans could then use their majorities in both chambers to strike larger swaths through budget moves.

The Department of Health and Human Services is likely to have an influential role over those strategic decisions, but its largest task will be in managing their repercussions and working with legislators seeking to enact alternative measures to replace the law.

Republicans across the administration and in Congress will have to grapple with how ambitious to be in their reworking of health policy, and, in particular, whether to attempt to include major changes to Medicare and Medicaid as part of their bid to replace the Affordable Care Act.

Write to Louise Radnofsky at louise.radnofsky@wsj.com and Peter Nicholas at peter.nicholas@wsj.com

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Why Donald Trump won't change

Dramas roiling the president-elect's transition process in recent days show him to be the same, mercurial, sometimes thin-skinned, gregarious, truth-challenged, media taunting and unpredictable figure who won a stunning election upset.
From the outside, the intrigue and internal feuding between competing power factions in the Trump orbit, his explosive tweeting and wrenching changes of political positions suggest a chaotic approach to forming a government. But there's a simple truth that links all the controversies that have gathered around the President-elect in the three weeks since he won the election: Trump is determined to be Trump.
The latest sign that Trump has no intention of changing, despite his new responsibilities, emerged on Sunday, when he fired off a tweet alleging electoral fraud and ignited a media storm.
"In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally," the President-elect fumed in a tweet -- based on a falsehood -- that underscored his enduring addiction to conspiracy theories.
Trump turned to social media again late Monday when he retweeted supporters who blasted CNN's Jeff Zeleny for reporting that debunked the President-elect's claims of voter fraud as baseless.
Washington establishment types, analysts and reporters long waited in vain for Trump's pivot to a more conventional style, looking for change when he became the GOP's frontrunner, its nominee and president-elect. But apart from a few periods of restraint, he has appeared most comfortable sticking to the bulldozing style that has been his trademark as a real estate mogul, a reality star and a political candidate.

Not a campaign

But the presidency is not a campaign. So Trump's behavior during his transition so far is beginning to raise questions about how he will adapt to the constraints of the office he is about to inherit.
They include unknowns about how his impulsive, gut-driven style of leadership and considerable ego will fit in a job dripping with centuries of custom and history. Americans will have to judge whether outbursts on Twitter or false claims, such as Sunday's on the popular vote, are appropriate for someone who will soon be a democratic head of state and the commander-in-chief.
Then there is the question of whether Trump's tongue will get him into trouble in a job in which an intemperate word by a president can cause an immediate foreign policy crisis. In short, will Trump change the presidency, or will the presidency change him?
"While I think that the President shapes the office to some extent, I also think the office shapes the President," said John Burke, a University of Vermont professor who has written several books on presidential transitions. "He is going to be more constrained than he has been as a candidate. The big question is how constrained is he going to be? That we don't know."
Those hoping Trump will become a more responsible, conventional figure when he is actually in the Oval Office include President Barack Obama himself, whose most recent encounter with his successor came over the phone Saturday.
"Campaigning is different from governing. I think he recognizes that," Obama said in a pre-Thanksgiving press conference. "I think what will happen with the President-elect is there are going to be certain elements of his temperament that will not serve him well unless he recognizes them and corrects them."
Trump says he is ready to face the awesome responsibilities of the presidency, but has given few signs he will moderate his firebrand persona when he reaches the White House.
"I feel comfortable. I feel comfortable. I am awed by the job, as anybody would be," Trump told The New York Times editorial board last week.
Still, no one can be fully prepared for the sudden shock of responsibility that will hit them when they became president â€" and Trump, as a political neophyte, faces a steeper learning curve than most.

Attitudes and demeanor

So it's possible that Trump's attitudes and demeanor in the transition period may not be a foolproof guide to his conduct while president â€" however much he is determined not to change.
"He will be shaped by the duties, he will be shaped by the speed and unpredictability by the speed at which everything happens," said Professor Karen Hult, a presidential scholar and transition expert at Virginia Tech University. "At least since Richard Nixon, presidents have found that there is nothing that prepares you to be president until you get there."
Sunday's outburst was not the only sign that the unorthodox approach that Trump brought to the campaign is not being tempered as his presidency nears.
He went on a tirade against the cast of "Hamilton" for, in his eyes, insulting his vice presidential nominee Mike Pence. He's tolerated leaks and public sparring among aides on cable television about his possible choice of Mitt Romney, an ultimate establishment figure, as secretary of state. His choice of Stephen Bannon for a top White House post stirred disbelief among critics worried about links to the white nationalist movement.
In a stunning move on Sunday, Trump's campaign manager, Kellyanne Conway, speaking on CNN's "State of the Union" slammed her boss's flirtation with Romney for the State Department as an insult to his political base.
Trump has seemingly changed policy on a dime, apparently rowing back from support for waterboarding and watering down his plan for a wall all the way across the Mexican border, leading to confusion as to exactly what he plans to do as President.

Jaw droppers

Trump's own carefully restricted media appearances have also contained jaw droppers.
For instance, he brazenly suggested that even though he is willing to set up a firewall between his vast business empire and his White House to ward off possible conflict of interest concerns, he may be under no obligation to do so.
"The law is totally on my side, meaning, the President can't have a conflict of interest," Trump told the Times, alarming critics who fear he has authoritarian tendencies and will breach ethical norms.
In another unprecedented move, Trump invited his daughter Ivanka â€" who he has tapped to run his businesses when President â€" into a meeting with Japanese Prime Minister Shinzo Abe.
The President-elect is also running his search for top talent like a reality show.
He relishes being the center of attention as he herds potential cabinet picks past a gallery of cameras at Trump Tower or his New Jersey golf resort. Some potential appointees, like Romney, former New York mayor Rudy Giuliani and others are left hanging in a media frenzy with no clear word on their fate.
Far from quieting the storm, Trump is whipping it up.
"Just met with General Petraeus -- was very impressed!" Trump tweeted on Monday, thickening the intrigue over the jockeying for position over the post of secretary of state and other cabinet positions.
Soon after he met Petraeus, Trump sources said that the President-elect would sit down with Romney for dinner on Tuesday night â€" stirring the pot of speculation a little more.
The period between now and the Christmas holiday will be crucial to Trump's hopes of quickly assembling a government ready to spring into action on day one of his presidency. With that in mind, there are some concerns that the drama and discord surrounding the transition might be undermining Trump's task in uniting nation after a campaign in which he tore at racial and societal divides.
"Transitions are important for a number of reasons," said Burke. "One of the reasons is to reintroduce the person not as a political candidate but as a president-elect â€" a recasting of how both the public and Congress perceive this president."
"And," Burke said, "I don't think we are seeing a lot of change."
"

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Donald Trump, Ohio State University, ‘Hamilton’: Your Tuesday Briefing

Photo
Police officers at the Ohio State University campus in Columbus on Monday. A student from Somalia was shot and killed after he drove his car onto a sidewalk and slashed passers-by with a butcher knife, injuring 11 people. Credit Andrew Spear for The New York Times

(Want to get this briefing by email? Here’s the sign-up.)

Good morning.

Here’s what you need to know:

• Trump’s transition itinerary.

President-elect Donald J. Trump is scheduled to meet today with Senator Bob Corker of Tennessee, a candidate for secretary of state. He also has dinner plans with Mitt Romney, whose candidacy for that post has divided Republicans because of his criticism of Mr. Trump during the campaign.

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President-elect Donald J. Trump met with David H. Petraeus, a retired general and former C.I.A. director, on Monday. Mr. Petraeus has emerged as a contender for secretary of state. Credit Sam Hodgson for The New York Times

The president-elect is expected to announce today his choice for secretary of health and human services: Representative Tom Price of Georgia, a vocal critic of the Affordable Care Act.

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