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What you need to know about tonight’s Trump and Biden town halls

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Voters cast their ballots during early voting on October 14 in Nashville, Tennessee.
Voters cast their ballots during early voting on October 14 in Nashville, Tennessee. Brett Carlsen/Getty Images

With 19 days until Election Day, more than 17 million ballots have already been cast in 44 states and the District of Columbia, according to survey of voting data from CNN, Edison Research and Catalist.  

Almost 10 million of those votes come from the 16 states that CNN rates the most competitive in the presidential election.  

Today is the first day of early voting in the critical state of North Carolina, but mail-in ballots started going out more than a month ago. 

Here’s a look at who’s voted so far in the Tar Heel State, according to voting information provided by Catalist, a company that provides data, analytics and other services to Democrats, academics and nonprofit issue-advocacy organizations and is giving new insights into who is voting before November.

Democrats currently hold a wide advantage over Republicans in ballots returned, despite making up nearly 36% of registered voters compared to Republicans’ 30%. Half of North Carolina’s ballots so far have come from Democrats, and only 18% have come from Republicans.  

This also marks a sharp difference compared to this point in 2016, when Republicans held a five-point lead over Democrats in their share of pre-election ballots cast.  

This data does not predict the outcome of any race, as polling around the country shows Democrats prefer to vote early or by mail, and Republicans prefer to vote in-person on Election Day. 

Early voters line up to cast their ballots at the South Regional Library polling location on October 15 in Durham, North Carolina.
Early voters line up to cast their ballots at the South Regional Library polling location on October 15 in Durham, North Carolina. Gerry Broome/AP

What we know: North Carolina’s voters so far are a more diverse group than they were at this point four years ago.  

White voters make up over three-quarters of those who have already voted, and Black voters make up about 17%. Hispanic and Asian voters comprise about 2% of early voters, respectively. Compared to 2016, White voters currently make up a smaller share of those who have voted so far, while Black voters make up a larger share. 

The breakdown by age is also different this cycle compared to four years ago. The oldest voters make up a smaller share of the early voting electorate, and the youngest voters make up a larger share. 

At this point in 2016, voters 65 or older made up 60% of those who had cast votes; now they make up only 49%. Meanwhile, voters 18-21 made up about a tenth of a percent of those who had already cast ballots in 2016, but now they make up about 3%. Voters 30-39, 40-49 and 50-64 also make up larger shares of the electorate so far, while the share of votes from those 22-29 has dropped slightly from four years ago. 

One piece of the early voting breakdown in North Carolina that hasn’t changed much from 2016? Gender.  

Women make up about 56% of those who have already cast ballots. At this time four years ago, that number was 57%. 

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9 ways to reform the Supreme Court besides court-packing

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Republicans are poised to gain a 6-3 majority on the Supreme Court, something that will enable any five of the Republican-appointed justices to strike down policies supported by Democrats.

If Democrats take back the White House and Congress, however, they have several potent tools that they can use to defend against a 6-3 Court. The most potent is court-packing: add enough seats to the Supreme Court to overwhelm the Court’s current majority, and then fill those seats with judges who support voting rights and are not inclined to strike down progressive legislation.

Although the Constitution provides that there must be a Supreme Court, it does not say how many justices shall serve on that Court. Over the course of American history, the Court has had as few as five seats and as many as 10. President Franklin Roosevelt proposed increasing the number of seats to 15 back in 1937 — although that proposal proved unpopular, and it died in Congress in no small part because the Supreme Court backed away from several previous decisions that undermined the New Deal.

Even if Democrats crush the 2020 election, however, it’s far from clear that they will have the votes to pack the Court. Though Democratic presidential nominee Joe Biden hasn’t ruled out adding seats to the Court, he’s said that he’s “not a fan of court-packing.” And packing the Court brings considerable risks — the biggest is that Republicans could retaliate by adding even more justices if they regain control of the elected branches.

If Democrats refuse to pack the Court, they still have other, less potent options. They run the gamut, from rebalancing the Court with Republicans, Democrats, and moderates to passing legislation to override Court decisions to the more drastic step of states simply refusing to obey certain rulings.

Many of the ideas laid out below are radical. So it’s worth taking stock of why such radical ideas need to be considered at all. Simply put, the American system of government is not producing democratic results. And it’s likely to get much worse if the Supreme Court has a 6-3 Republican majority.

Republicans owe their majority on the Supreme Court to our failing democracy. In 2012, President Obama won reelection by a comfortable margin. However, his fellow Democrats lost control of the Senate in the 2014 midterms, a testament to Senate malapportionment. Republicans in the Senate that blocked Obama Supreme Court nominee Merrick Garland’s confirmation in 2016 represented about 20 million fewer people than their Democratic counterparts.

Since then, Donald Trump lost the popular vote in 2016 and Republicans have hung on to the Senate. The first Supreme Court justice in American history to be nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country is Trump’s first appointee, Neil Gorsuch. The second is Trump’s second appointee, Brett Kavanaugh. And the third is likely to be Trump nominee Amy Coney Barrett.

The conservative Supreme Court majority is likely to further entrench Republican rule. The Court weakened much of the Voting Rights Act, the principal law forbidding racist voter suppression, in Shelby County v. Holder (2013) and in Abbott v. Perez (2018). This term, it plans to hear a new voting rights case that could potentially render the Voting Rights Act little more than an empty husk.

And the anti-democratic threat goes beyond voting decisions. The Court is the one unelected branch of government, but it has the power to decide who receives potentially lifesaving health care and who is denied such care. It can veto our efforts to protect the environment, give its blessing to discrimination, and even decide who we are allowed to marry.

Many of the following proposals seek to weaken the Supreme Court — and that might be the most important pro-democracy reform that America could enact. A party that wins a presidential race should get to govern for four years, not for 40. But, in our current system, a president who is lucky enough to fill enough Supreme Court seats can continue to shape our nation’s policy long after they are gone.

Ways to change the makeup of the Supreme Court without giving a clear advantage to one party

Assuming that the next Congress does not have the votes to simply add new seats to the Supreme Court and let a Democratic president fill them, Congress still has several options that could change the makeup of the Court in ways that are less overtly partisan.

1) A “balanced” court

One of the leading alternatives to simply adding and filling new seats on the Court with Democratic judges is still a form of court-packing. But the aim is to create a politically balanced Court where neither party dominates.

In a 2019 paper, law professors Dan Epps and Ganesh Sitaraman proposed a 15-justice Court made up of five Democrats, five Republicans, and five justices chosen by the other 10. The idea behind this proposal, which Pete Buttigieg featured during his bid for the Democratic presidential nomination, is that the balance of power on the Supreme Court would be held by moderate judges acceptable to both political parties.

There are a number of concerns about this proposal. One is that it is likely to be declared unconstitutional. The Constitution gives the president the power to appoint new justices; it does not give that power to a panel of 10 other justices.

A more fundamental problem is that any attempt at court-packing, even an attempt that installs a centrist Supreme Court, is likely to enrage Republicans and invite retaliation if Republicans regain control of the government. And there’s no guarantee that a centrist Court will overrule the Roberts Court’s previous decisions undercutting voting rights. Democrats could wind up triggering all the downsides of packing the Court, without gaining the benefits of a more democratic system.

That said, if the alternative to a balanced court controlled by moderates is a 15-justice Court with a Democratic supermajority, perhaps Republicans will be willing to negotiate a compromise. And a balanced Court proposal similar to the one offered by Epps and Sitaraman could potentially be that compromise.

2) The “Supreme Court lottery”

A separate proposal from Epps and Sitaraman would transform the Supreme Court from a permanent panel of nine justices to an ever-changing panel of judges. These judges would briefly rotate onto the Supreme Court before returning to their regular job on a federal appeals court.

The basic idea is that each of the approximately 180 active federal appeals court judges would be appointed as associate justices of the Supreme Court. Then, every two weeks, nine of these judges would be randomly selected to serve on the nation’s highest Court. After two more weeks, a different panel of nine would be selected. (In this system, the current justices could also be eligible to rotate onto a temporary panel of nine, but they would no longer sit permanently on that panel.)

It may seem random, but this is more or less how federal appeals courts already operate. Most appeals court cases are heard by randomly selected panels of three judges, although a larger panel consisting of all the active judges on the court will occasionally hear exceptional cases.

One problem with this proposed lottery system from a Democratic (and democratic) perspective is that the rotating Supreme Court panel would, at least in the short term, more often than not be controlled by Republicans who may share the current Court’s hostility toward voting rights. There are currently 179 active appeals court judges in the United States, and 99 of them were appointed by a Republican president.

And there’s no guarantee that a panel of anti-democratic radicals won’t be randomly chosen to hear a crucial voting rights case — or that such a panel won’t sit during a disputed election.

In the long term, however, a rotating Supreme Court could, in Epps and Sitaraman’s words, “depoliticize the appointments process by making confirmations more numerous and less consequential.” And it would mean that individual justices “would no longer have the ability to shape constitutional law for a generation by strategically timing their retirement” so that their seat is filled by a president of their same party.

3) Term limits

Another way to prevent justices from “strategically timing their retirement” is term limits.

The leading term limits proposal, which has at times enjoyed support from prominent Democrats and Republicans, would require each justice to step down after 18 years. Reps. Ro Khanna (D-CA), Don Beyer (D-VA), and Joe Kennedy III (D-MA) recently introduced legislation that would implement 18-year term limits. Terms would be staggered so that a justice steps down every two years, meaning that two justices would be replaced during each presidential term — although whoever is president when this proposal is implemented might get to replace more justices depending on how Congress decided to manage the transition to the new system.

If such a proposal were implemented on the first day of a Biden presidency, Biden might immediately get to replace Justices Clarence Thomas and Stephen Breyer, both of whom have served more than 18 years. The next justice in line to leave the Court would be Chief Justice John Roberts.

It is far from clear, however, that term limits may be imposed on a sitting justice. The Constitution provides that federal judges “shall hold their offices during good behaviour,” and the particular “office” held by each of the current justices is a seat on the Supreme Court for life. (Future justices could probably be term-limited, on the theory that they are being confirmed to a different “office” that only allows them to sit on the nation’s highest Court for 18 years before they are rotated onto a lower court.)

Moreover, even if there is a constitutional way to impose term limits on sitting justices — Yale Law School’s Jack Balkin has a clever proposal to achieve this goal — the question of whether sitting members of the Supreme Court can be subjected to term limits would be decided by, well, the Supreme Court. And it’s unlikely that a majority of sitting justices would willingly agree to term limits.

Ways to weaken the Supreme Court

As an alternative to changing the personnel on the Supreme Court — or, perhaps, in addition to changing the personnel of the Court — Congress might also enact several reforms that seek to diminish the Supreme Court’s nearly unchecked power to hand down binding interpretations of the Constitution.

The president may also be able to diminish the Court’s authority by refusing to enforce particularly egregious Supreme Court decisions.

4) Jurisdiction stripping

The Constitution gives the Supreme Court power to hear most federal cases on appeal from a lower court, but it may only assert jurisdiction over cases “with such exceptions, and under such regulations as the Congress shall make.” Accordingly, Congress has at least some power to tell the Supreme Court that it is not allowed to hear certain cases.

But it’s not entirely clear how much power Congress has to limit the Court’s power to hear particular cases. Congress has unlimited power to restrict the jurisdiction of lower federal courts — a power that a Democratic Congress could use to prevent Trump-appointed trial judges from blocking new progressive laws as soon as those laws are enacted. But the Supreme Court’s decisions concerning Congress’s power to limit the high Court’s jurisdiction are not a model of clarity.

In Ex parte McCardle (1868), the Supreme Court held that it did not have jurisdiction over a case, brought by a newspaper publisher who claimed that he was wrongly jailed for publishing attacks on Reconstruction, because Congress enacted a law stripping the Court of jurisdiction to hear this case.

McCardle, however, is an old case. And the opinion in that case does not explain the Court’s reasoning in much detail. In the many years since McCardle, many scholars and at least some justices have argued that Congress’s power to limit the Court’s jurisdiction is not unlimited. Concurring in Felker v. Turpin (1996), for example, Justice David Souter suggested that Congress may only be able to prevent the Court from hearing a particular case if there is some other way that the issue presented by that case could reach the justices.

In any event, there are two closely related problems with this tactic — known as “jurisdiction stripping” — as a solution to a partisan Supreme Court. The first is that the question of whether Congress has the power to enact a particular jurisdiction-stripping law will be decided by the Court itself — so the justices may simply strike down an act of Congress that seeks to limit the Court’s jurisdiction.

The other problem is that most federal statutes do not enforce themselves — they need to be applied to individual parties through court orders. Congress might be able to prevent the Supreme Court from striking down the Voting Rights Act, for example, by stripping the Court of jurisdiction to hear voting rights cases. But if voting rights plaintiffs cannot obtain a court order enforcing the Voting Rights Act, then that law ceases to function.

5) Supermajority voting requirements

In a forthcoming law review article, law professors Ryan Doerfler and Samuel Moyn propose that Congress could require a supermajority of justices to vote to strike down federal laws. This proposal could potentially be implemented in two different ways: Congress could either impose a universal rule requiring a 7-2 majority on the Supreme Court to strike down a federal law, or identify particular laws, such as the Affordable Care Act, which can only be struck down by a supermajority.

Such a law would need to be coupled with provisions stripping the lower courts of the power to strike down such laws, or else judges on the lower courts could potentially block laws that the Supreme Court would be unable to strike down with a bare majority vote.

A supermajority requirement, Doerfler and Moyn argue, “would functionally reallocate decision-making authority to the democratically legitimate branches of government in cases in which a countermajoritarian faction on the Court enjoys only a simple majority.” In effect, the Court’s conservatives would have to convince at least one Democratic appointee to strike down a federal law if Congress imposed a 7-2 supermajority requirement.

This proposal, however, is vulnerable to one of the same problems facing jurisdiction stripping. What happens if a 5-4 Supreme Court strikes down the law imposing a 7-2 supermajority requirement? The result could be a constitutional crisis, as Congress and the Supreme Court would be fundamentally at odds regarding whether particular laws are constitutional, and there would be no clear way to resolve this dispute under the Constitution.

Another problem is that the Supreme Court does not need to declare a federal law unconstitutional in order to sabotage it. If Congress requires a supermajority to strike down the Voting Rights Act, for example, the Court could still interpret the individual provisions of this law so narrowly that they would do very little to protect voting rights.

6) Presidential (or congressional) resistance to the Supreme Court

Abraham Lincoln began his presidency with a broadside against the Supreme Court. Reacting to the Supreme Court’s pro-slavery decision in Dred Scott v. Sandford (1856), Lincoln attacked the very idea that the justices should have the final say on constitutional matters in his first inaugural address.

[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Though Lincoln conceded that Dred Scott was binding upon the particular parties to that litigation, he rejected the idea that the president or Congress is bound by the Court’s understanding of the Constitution. The Lincoln administration issued a passport to a Black man, defying Dred Scott’s holding that Black people cannot be citizens. And Lincoln signed legislation banning slavery in the territories, defying Dred Scott’s conclusion that slaves remained slaves even after entering a free territory.

A similar drama nearly played out in the Franklin Roosevelt administration. During Roosevelt’s first term, many contracts contained “gold clauses” requiring debtors to pay back creditors in gold dollars valued at the time when the contract was made. Because of rampant deflation due to the Great Depression, these contracts effectively increased the amount of debt owed under these contracts by as much as 69 percent.

Among other things, these gold clauses drove up the returns railroads owed on their bonds so high that they could have bankrupted most of the railroad industry, potentially shutting down much of the nation’s shipping in the process. And the clauses threatened to ruin homeowners who suddenly owed the equivalent of $1.69 for every dollar they borrowed to buy their house.

Congress declared these gold clauses null and void. But Roosevelt, fearing that the Supreme Court would reinstate the clauses, prepared a speech announcing that he would not obey such a decision. “To stand idly by and to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion,” Roosevelt would have said in a speech the Court never forced him to deliver, “would so imperil the economic and political security of this nation that the legislative and executive officers of the Government must look beyond the narrow letter of contractual obligations.”

The theory that each branch of government may decide on its own how to interpret the Constitution, even in defiance of the Supreme Court, is known as “departmentalism.” Under this theory, a president potentially has significant (although not entirely unlimited) power to undermine the judiciary’s determination that a particular law is unconstitutional.

Suppose, for example, that the Supreme Court strikes down the Affordable Care Act. A Democratic president could order the US Marshalls not to enforce this decision. They could order the Treasury to continue to provide subsidies to states and individuals entitled to receive them under Obamacare. And the president could routinely pardon executive branch officials who continue to make these payments, neutralizing a federal law that plausibly could subject these officials to prosecution in a future administration.

Departmentalism would not allow the president to completely neutralize such a Court decision. Lower federal courts would remain bound by the Supreme Court’s decision, so the president would not be able to obtain a court order against states or private insurers who violate their obligations under Obamacare. But departmentalism would, at the very least, allow the president to mitigate the harm created by a decision that would otherwise strip health coverage from tens of millions of Americans.

7) State resistance to the Supreme Court

Just as the executive or legislative branch might resist a Supreme Court decision through departmentalism, states might invoke a theory known as “interposition” to defy a court order.

The history of interposition, which posits that a state may “interpose” its authority between the Supreme Court and its citizens, is not a happy one. In the wake of the Supreme Court’s desegregation decision in Brown v. Board of Education (1954) Southern segregationists relied on interposition to justify defying Brown. Martin Luther King Jr. called out segregationist Alabama Gov. George Wallace, in King’s “I Have a Dream” speech, for “having his lips dripping with the words of ‘interposition’ and ‘nullification.’”

Yet, there are constitutional systems where something similar to interposition exists without this same tainted history. Canada’s Charter of Rights and Freedoms, for example, contains a provision known as the “Notwithstanding Clause,” which allows either the national parliament or a provincial legislature to declare that at least some laws shall operate “notwithstanding” a court decision declaring that the law violates Canada’s Charter — although these overrides automatically expire after five years if they are not renewed.

In the US system, if a state defies a Supreme Court order, the executive branch may use force to enforce that order — think of President Dwight Eisenhower ordering the Army to enforce a desegregation order in Little Rock, Arkansas.

But, as Alexander Hamilton wrote in the Federalist Papers, the judiciary “has no influence over either the sword or the purse” and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” If the Supreme Court hands down a decision that a state government deems abhorrent, the Court cannot enforce that order if the president decides that it should not be enforced.

Ways to override Supreme Court decisions

As Congress has grown more and more dysfunctional, the Supreme Court has gained a nearly unchecked power to determine the meaning of federal laws. Though Congress lacks the power to overrule a Supreme Court decision interpreting the Constitution, Congress may amend a federal statute if it disagrees with the Court’s reading of that statute.

Yet Congress uses this power far less than it used to, according to a 2012 study by University of California Irvine law professor Rick Hasen. Hasen found that, between 1975 and 1990, Congress enacted “an average of twelve overrides of Supreme Court cases in each two-year Congressional term.” Between 2001 and 2012, by contrast, the number of overrides dwindled to a mere 2.8 per two-year term. (Hasen defines the term “override” to include acts of Congress that “overturned, reversed, or modified a Supreme Court statutory interpretation holding.”)

But there’s no reason why Congress — especially a filibuster-free Congress controlled by a single party — must continue to defer to the Supreme Court.

8) Omnibus legislation overruling past Supreme Court decisions

One model that Congress could follow is the Civil Rights Act of 1991, a bill signed by President George H.W. Bush back when it was still possible to achieve a bipartisan consensus against discrimination.

In its 1988 term, the Supreme Court handed down five decisions that, in the words of one scholar, “substantially eroded Title VII of the Civil Rights Act of 1964,” which prohibits many forms of employment discrimination. Congress enacted the 1991 civil rights bill to overrule, or, in some cases, modify those five decisions.

Similarly, Congress could enact a Civil Rights Act of 2021 that overrides several Supreme Court decisions at once.

This bill could include, for example, provisions tossing out the Supreme Court’s entire forced arbitration jurisprudence, which allows companies to force their workers and customers into a privatized justice system that favors corporate parties. It could overrule decisions weakening the Voting Rights Act. And it could also override less famous decisions such as Vance v. Ball State University (2013), which made it much harder for workers who are sexually harassed by their boss to sue their employer; or Gross v. FBL Financial Services (2009), which weakened protections against age discrimination.

Such an omnibus bill would serve two purposes. It would get rid of Court decisions that weakened laws intended to protect our democracy and halt practices such as discrimination, and it would send a clear message to the justices that there’s a new sheriff in town who is keeping a close eye on them.

9) Expedite legislation seeking to overrule Supreme Court decisions

The Congressional Review Act (CRA) lays out an expedited process that Congress can use to swiftly overrule regulatory decisions by the executive branch. A bill overruling a federal regulation through the CRA still must pass both houses of Congress and be signed by the president, but the CRA’s streamlined process makes it relatively easy for lawmakers who oppose a particular regulation to override it quickly.

In an essay published in the Atlantic, Sitaraman suggests enacting similar legislation allowing Congress to swiftly overrule Supreme Court decisions:

If the Court issued a decision interpreting a statute or regulation, Congress would have 30 days to vote on whether to open a reconsideration process. If Congress voted yes, the speaker of the House, the Senate majority leader, and the minority leaders would appoint a special committee in each chamber (with proportional party membership) to design a legislative fix for the full body to vote on within the next 30 calendar days. The bill would then go to the other house, where it would be voted on within 10 days through a privileged, fast-track process, which would avoid common legislative snags like the filibuster and committee hearings. The president would then sign the law or veto it, as with any ordinary piece of legislation.

Such legislation could create a normalized process whereby Congress routinely reviews the Supreme Court’s decisions and corrects decisions that read federal laws in damaging or implausible ways. It would also act as a complement to an omnibus bill in the vein of the Civil Rights Act of 1991. The omnibus would take care of past decisions that misread federal law, while the review act would prevent new decisions from having much effect.

Democrats will not have much time to decide how to deal with the Supreme Court

Setting aside the more detailed proposals described above, it’s worth noting that Congress has a great deal of power to restrict a Supreme Court that seems determined to undermine democracy.

In its 2020 budget request, for example, the Supreme Court requested $106.8 million in funding from Congress. Congress could if it wanted drastically reduce these funds (with the proviso that the Constitution does not permit Congress to reduce a sitting justice’s salary and benefits).

Similarly, Congress could also impose onerous new duties on the justices. For most of the nation’s history until 1911, Supreme Court justices had to spend at least some of their time “riding circuit” — traveling to various parts of the country to hear ordinary federal cases. Congress could revive this practice. Or it could expand the Court’s (currently very limited) mandatory jurisdiction, forcing it to hear thousands of routine cases involving uncontroversial legal issues.

The point isn’t that Congress should strip the Court of its staff, order the justices to spend half their year flying around to random federal courthouses, or drown them in an ocean of routine appeals. Rather, Congress has tremendous power to fight back against an anti-democratic Supreme Court.

Realistically, however, if Congress wants to prevent the Supreme Court from entrenching its power to veto federal laws and manipulate voting rights, it’s likely to only have a short window in which to do so. Right now, polls show Democrats are favored to win the White House and both houses of Congress, but even if that prediction bears out, Democrats won’t control the elected branches forever.

The biggest risk from a 6-3 Republican Supreme Court is that the conservative justices will bide their time, maybe handing down a few decisions shifting the law marginally rightward, but avoiding anything like a new major attack on the Voting Rights Act until after Republicans gain control of at least one house of Congress.

And once Republicans control at least one veto point, they can halt any effort to rein in Supreme Court decisions that place a thumb on the scales of democracy.

If Democrats do regain control of Congress and the White House, in other words, they may need to make a difficult decision quickly. Even if they dominate the 2020 election, Democrats may have only a two-year window before Republicans regain the House or the Senate.

And once that happens, American democracy will be at the mercy of a 6-3 conservative Court.


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Analysis: In final debate, Trump seeks a drastic comeback

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In the three weeks since Donald Trump last met Joe Biden on the debate stage, another kind of debate has been swirling on the campaign trail: one over the conditions under which the two presidential candidates would convene for a rematch. Virtual format, or an old-fashioned in-person face to face? Open microphones for both debaters, or only for the one who is speaking? A moderator who tightly enforces the rules, or one who allows the candidates – one candidate in particular – to run wild?

It is something of a miracle that Thursday’s debate in Nashville, Tennessee, is happening at all – and Trump being Trump, there is always the chance of a last-minute cancellation at any point before the camera’s light blinks red. After his disastrous opener against Biden, followed days later by a hospital stay for COVID-19, Trump dropped out of the second scheduled debate, a town hall that was to have taken place in Miami. Trump’s reason: he did not approve of the remote format that was being proposed as a precautionary measure against his illness.

But with the incumbent president lagging in the polls, amid a surge in enthusiasm for Democratic candidates across the board, Trump finds himself in need of a follow-up debate. When the candidates meet again on Thursday, they will repeat the same format as in their first debate, with one notable difference: each candidate will be allotted two minutes at the beginning of every segment (there are six segments in total), during which the opposing candidate’s microphone will be silenced.

Will Trump’s interruptions be minimised with a new microphone rule put in place for the final debate? [File: Brian Snyder/Reuters]

The Commission on Presidential Debates, which has sponsored every general election presidential and vice presidential debate in the US since 1988, imposed this unusual change after acknowledging that the first Trump-Biden face-off deprived voters of “the opportunity to be informed of the candidates’ positions on the issues”. That is a nice way of saying that they hope for a more civilised round two, with the candidates engaging in a substantive dialogue rather than a shouting match.

This modest production tweak seems unlikely to produce a markedly different event. Since both microphones will remain open during the 13-minute “discussion periods” that round out each segment, a rerun of last month’s episode seems not only possible but inevitable.

Which brings us to the candidates, and the state of play as they head into their final showdown.

Donald Trump

In the opening encounter with Biden, Trump manifested all of his worst characteristics. He was rude, whiny, loud and unpleasant. And, according to post-debate polling, voters did not like it.

Two mistakes from that first debate stand out: the most cringeworthy was Trump’s personal attack on Hunter Biden, the son of Joe Biden, for being a recovering drug addict. Second, the president’s refusal to disavow white supremacists – in fact, to tell one such group to “stand down and stand by” – struck most observers as out of bounds.

Trump fared no better in a subsequent NBC News town hall that the network substituted for the cancelled second debate with Biden. Under sharp questioning from anchor Savannah Guthrie, Trump again bungled his responses, especially regarding his relationship to QAnon conspiracy theorists. Furthermore, he promoted false information about the efficacy of mask-wearing during the coronavirus pandemic.

As these examples show, Trump flounders when he is forced to operate outside the friendly confines of right-wing media. The final debate with Biden, in front of what could be the largest audience either candidate will ever face, stands as Trump’s last chance to counteract the barrage of bad news he has been suffering, and will probably continue to suffer until election day. History suggests the task will not be easy.

Joe Biden

Biden did not win the first match with Trump by being the world’s best debater. He did not need to be, not against a competitor whose obnoxiousness rendered Biden saintly by contrast. Nobody remembers much of what Biden said in that debate. All they remember is that he was not Trump, and that was enough.

Biden’s own network town hall, which aired on ABC at the same time Trump was appearing on NBC, handed the former vice president another victory in the battle of personalities. While Trump’s performance was roundly panned, Biden drew comparisons to Mister Rogers, the kindly, soothing children’s television host who over generations has become a national symbol of decency.

Biden’s talent for empathy served him well in the town hall, as he bonded personally with the socially distanced voters who posed questions from the gallery. Even after the programme ended, Biden remained on-site for another half-hour, chatting with people in the audience.

In view of Trump’s misbehaviour in the first debate, some observers have wondered whether Biden is needlessly subjecting himself to another round of mud-wrestling with an out-of-control opponent. Given Biden’s current standing in the polls, and with Trump’s COVID diagnosis as a pretext, he could probably have wriggled out of it.

On the other hand, Biden comes to this debate in a position of strength, having notched a solid record against Trump in recent TV encounters – the Democratic challenger even beat Trump in the ratings for their duelling town halls. It is Biden who has benefitted when voters judge the two candidates side-by-side like merchandise in a shop window.

Biden has every reason to play it safe in this last debate, to do nothing that will rock a boat that is about to reach the shore. Needless to say, any encounter with a loose cannon like Trump carries a high degree of risk.

But heading into the final debate of 2020, Biden is the candidate with the easier challenge, that of staying the course, while his opponent needs a U-turn.

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Lawyers can’t find the parents of 545 migrant children after separation by Trump

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Three years after the Trump administration started separating immigrant families arriving on the southern border, lawyers say they still haven’t been able to reach the parents of 545 affected children, according to court documents filed Tuesday night.

Some of the children involved may never see their parents again. Lawyers for the American Civil Liberties Union said that they still cannot find the parents of 283 children despite thorough on-the-ground searches, and don’t expect to be able to reach them by telephone, meaning that the families may never be reunited.

Many of the families involved were separated in 2017, before the Trump administration began separating immigrant families routinely, hoping to deter immigrants from crossing the border without authorization.

The children have been released to sponsors, who are typically family members or friends, but also include foster families. Their parents, two-thirds of whom were deported before a federal judge ordered that they be identified and reunited with their children in 2018, either have not been located or have not been successfully contacted.

The group Justice in Motion is continuing to work to locate the parents in Mexico and Central America, though that has become more difficult amid the pandemic.

“While we have already located many deported parents, there are hundreds more who we are still trying to reach,” the group said in a statement. “It’s an arduous and time-consuming process on a good day.”

The news underscores the devastating long-term effects of the Trump administration’s policy. But even in cases in which lawyers expect to be able to find the parents eventually, families may never fully recover from the long-term psychological harm.

The US government had a policy of separating families — despite officials’ denials

Beginning in mid-2017, the federal government ran a pilot program in El Paso, Texas, under which it began filing criminal charges against anyone who crossed the border without authorization, including parents with minor children — even though many of them intended to seek asylum in the US, which is legal.

Parents were sent to immigration detention to await deportation proceedings. Their children, meanwhile, were sent to separate facilities operated by Department of Health and Human Services’ Office of Refugee Resettlement and, in some cases, released to other family members in the US or to foster homes. (Previous administrations, in most cases, would have simply released the families from detention.)

The Trump administration formalized the policy in May 2018, which it dubbed the “zero tolerance policy.” At least 5,000 families were separated before a California federal court ordered the federal government in June 2018 to reunify the families affected and end the policy.

The federal government, however, neglected to link the children to their parents in its databases, making the reunification process difficult, especially in the hundreds of cases of children who were under the age of 5, including one who was just 4 months old.

Unlike the Trump administration, the Obama administration did not have a policy of separating families, but it did try to detain families together on a wide scale and deport them as quickly as possible during the 2014 migrant crisis. Cecilia Muñoz, director of the Obama administration’s Domestic Policy Council, told the New York Times in 2018 that the administration had briefly considered pursuing family separations but quickly dropped the idea.

“We spent five minutes thinking it through and concluded that it was a bad idea,” she told the Times. “The morality of it was clear — that’s not who we are.”

Senior Trump administration officials, including former Homeland Security Secretary Kirstjen Nielsen, have repeatedly denied that they pursued a policy of family separation. Nielsen told Congress in December 2018 that the administration “never had a policy for family separation.” It was later revealed that she had, in fact, signed a memo greenlighting the practice, which clearly stated that DHS could “permissibly direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted.”

Amid the Covid-19 pandemic, the administration has tried to carry out what immigrant advocates call a new kind of family separation. It pressured parents already detained within the US to voluntarily separate from their children by presenting them with what the administration has called a “binary choice”: Either allow their children to be placed with relatives or a foster family in the US while the parents remain detained, or stay together as a family in indefinite detention and risk contracting the coronavirus.

Family separations carry a long-term cost

The US government has long known the psychological harms associated with separating family members. These harms would only add to the anxiety created by the pandemic as immigrants and their children fight for their release from detention.

Commander Jonathan White, who previously oversaw the government’s program providing care to unaccompanied immigrant children, told Congress that, beginning in February 2017, he had repeatedly warned the officials who concocted the policy that it would likely cause “significant potential for traumatic psychological injury to the child.”

A September 2019 government watchdog report confirmed those effects, finding that immigrant children who entered government custody in 2018 frequently experienced “intense trauma” and those who were “unexpectedly separated from a parent” even more so.

Each child reacts to family separation differently. But psychologists have observed three main kinds of effects: disruptions to their social attachments, increases in their emotional vulnerability, and, in some cases, post-traumatic stress disorder, Lauren Fasig Caldwell, director of the American Psychological Association’s children, youth, and families office, said.

Those symptoms could be short-term or they could persist; they could also not even manifest until a child enters their teen years or adulthood. Any of them could significantly hinder a child’s later success in academics and in the workplace.

Parents who were separated from their children have experienced their own trauma — which may manifest in symptoms similar to those that researchers observe in children — and may not have the mental and emotional capacity to be able to provide what their children need.


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