GOP CONGRESS DISCOVERS IT’S THE LEGISLATIVE BRANCH!: The WSJ has a hilarious and/or depressing piece, “McConnell, Ryan Use Balance-of-Powers Argument to Reassure Voters.”

When asked about Mr. Trump, his effect on the party, or his prospects this November, each responds by talking about the importance of the legislative branch. Congress, they say, will assert itself again after eight years of an administration they see as having severely skewed the balance of powers.

Implied in their message is the assumption that they will be able to protect the prerogatives of the institution because they’ll still be running it. And that’s part of their underlying point: Keep us in charge, and we’ll keep the president—whoever it is—in check.

Mr. McConnell invoked the balance-of-powers argument when asked in a CBS interview Sunday about divisions within the party and Republican voters who might be part of a “never Trump” movement.

“What protects us in this country against big mistakes being made is the structure, the Constitution, the institutions,” he said. “No matter how unusual a personality may be who gets elected to office, there are constraints in this country. You don’t get to do anything you want to.” . . .

So let me get this straight: Now the GOP Congress is ready to assert its constitutional prerogatives, prophylactically flexing its muscles in anticipation of a Trump Administration? I’m in full support of Congress protecting its sole constitutional power to legislate, and using all available tools to do so against an overreaching President.

I don’t know whether to laugh or cry at this latest “assurance” from GOP congressional leaders of their ability/willingness to check a runaway potential future President, whether Trump or Clinton (the latter of which I think is a far more realistic threat). Their track record for the past seven years says otherwise. Res ipsa loquitur.

YES. THIS. EXACTLY:  Victor Davis Hanson makes cogent observations on the “high IQs” of the establishment political class:

Turn on an evening cable show and ask which interviewer is married to which anchor on another channel, or which of the pundits are former politicos, or how many in the White House worked for Big News or are married or related to someone who does. How many pundits were advisers to political candidates or related to someone who was? How does Ben Rhodes do an interview on CBS News or George Stephanopoulos interview Hillary Clinton or a writer expound on the primaries when he is also an adviser to a particular campaign? The problem is not just that all this is incestuous or unethical, but that it blinds a tiny elite to what millions of quite different Americans value and experience.

Charles Murray recently wrote in anger, addressing those who would vote for Trump because “Hillary is even worse”: “I know that I am unlikely to persuade any of my fellow Establishmentarians to change their minds. But I cannot end without urging you to resist that sin to which people with high IQs (which most of you have) are unusually prone: Using your intellectual powers to convince yourself of something despite the evidence plainly before you. Just watch and listen to the man. Don’t concoct elaborate rationalizations. Just watch and listen.” . . .

Murray has a point that Trump’s crudity and buffoonery should be taken seriously, but when he says establishmentarians have “high IQs,” what exactly does he mean? Did a high IQ prevent an infatuated David Brooks (whom he quotes approvingly) from fathoming presidential success as if he were a sartorial seancer, from the crease of Senator Obama pants leg? What was the IQ of the presidential historian who declared Obama the smartest man ever to be elevated to the White House? . . . Or perhaps the conservative wit who once wrote that Obama has a “first-class temperament and a first-class intellect,” and that he is the rare politician who “writes his own books,” which were “first rate”?

Establishmentarian high IQs? The point is not to castigate past poor judgment, but to offer New Testament reminders about hubris and the casting of first stones — and why hoi polloi are skeptical of their supposed intellectual betters.

So how did a blond comb-over real-estate dealer destroy an impressive and decent Republican field and find himself near dead even with Hillary Clinton — to the complete astonishment, and later fury, of the Washington establishment? Simply because lots of people have become exhausted by political and media elites who have thought very highly of themselves — but on what grounds it has become increasingly impossible to figure out.

Indeed. If I hear one more of my conservative/libertarian “high IQ” colleagues (many of them long-time friends) denigrate Trump as stupid, racist, sexist or (I kid you not)  not “really” successful–I may puke.

One certainly may oppose Trump’s policies on a principled basis.  But to hear the right-of-center intelligentsia (who may be well-educated and perhaps even have high IQs, but are not necessarily intelligent) denigrate the presumptive GOP nominee–selected by We the People–using the same leftist tactics used to denigrate George W. Bush and many other conservative standard-bearers, is nauseating.

These “high IQ” members of the GOP intelligentsia simply cannot hide their disdain for ordinary Americans’ selection of a GOP nominee, yet they simultaneously claim that the GOP represents ordinary Americans’ values. The GOP intelligentsia is behaving like a delusional narcissist, reveling in its (false) superiority over the little people.

YES, TRUMP CAN WIN: So argues Sean Trende at RCP:

Throughout this primary season, I’ve had an ongoing fight with a co-worker about whether Donald Trump could win the general election.  I was pretty firmly in the “if the economy collapses, maybe, but he is much more likely to drag the entire Republican field down with him” camp.

To resolve this, my co-worker invited me to set up some benchmarks: what we would have to see in order to believe that Trump really could win the election – not just that he had some sort of outside shot in a perfect storm, but that he had a legitimate, realistic chance of winning.

To cover my bases, I tried to set benchmarks that I thought would be really difficult for Trump to meet: He would have to pull within five points of Hillary Clinton in the RCP Average within a month of wrapping up the GOP race (this was back when he was down by 10), and then he would have to prove that he could lead her in a polling average (rather than in the occasional outlying poll) by the end of the Republican convention.

So, here we are. Last week, Trump was up by 0.2 percent in the RCP Average, meeting both of my goalposts two months ahead of schedule.  I still believe that he is the underdog, but I have to concede that he can win. I would put his chances more around 30 percent today.  If at some point he establishes a durable lead (he returned to trailing Clinton Friday morning), or if he can push his average up into the high forties, I will revise things accordingly.

Why might this continue?  Here are a five reasons . . . .

Read the whole thing.

RELATED: National Poll shows Trump nearly even with Clinton, 47 to 45 percent among registered voters.

WHEN MALE IS FEMALE, BLACK IS WHITE, AND OLD IS YOUNG: Peder Zane explores the meaning of the Obama Administration’s absurd interpretation of Title IX of the Civil Rights Act of 1964’s prohibition of discrimination “on the basis of sex”:

A dispute about bathroom rights turned into a Pandora’s box of philosophical riddles about the nature of identity and the meaning of truth on May 13 when the Departments of Justice and Education issued a letter prohibiting “discrimination based on a student’s gender identity.”

The letter defines gender identity as “an individual’s internal sense of gender.” It also states “there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.” . . .

Sex is a biological fact. Almost everyone is born with distinct physical markers that define us as male or female.

Gender is a social construct that refers to the fluid range of expected behaviors taught to boys and girls. . . .

Though the administration might have the best of intentions, its fusion of sex and gender raises complex questions. Race, for example, is even more of a social construct than gender. Men and women will always be biologically distinct, but race is almost entirely an invention. It wasn’t too long ago that Italians, Jews and Aryans were considered separate races. . . .

Similarly, if one’s sex is a choice, why not one’s age? As 60 becomes the new 40, we increasingly see age as an attitude rather than a number. If I believe I am 65, what basis do you have for disagreeing with me? . . .It might sound absurd, but, given that logic, why can’t a white person claim the benefits of affirmative action or a middle-aged man demand Medicare and Social Security?

Exactly. If I feel like a 25 year-old black male today, who has a moral or legal basis to challenge this self identity? And if they dare to do so, they are “discriminating” against me based upon my age, race and gender.

Orwell would be so proud of today’s totalitarian progressives: “War is peace. Freedom is slavery. Ignorance is strength.”

As a legal matter, however, interpreting a 1964 law that bans discrimination “on the basis of sex” as banning discrimination “on the basis of sexual identity” is patently absurd. The 11 brave States that have filed a lawsuit challenging the Obama Administration’s newfound construction of the 1964 Civil Rights Act will ultimately prevail, as congressional intent drives statutory construction.

UPDATE (FROM GLENN): A reader sends this takeoff on the #ManEnough4Hillary campaign.

ENFORCING LEGAL LIMITS ON GITMO TRANSFERS: My Daily Caller oped discusses the forthcoming transfers of one-third of the remaining 80 Gitmo detainees, and how Congress might enforce the 2016 National Defense Authorization Act’s limits on such transfers.

WELL NOW, ISN’T THAT SPECIAL?: Federal judge slams DOJ lawyers for lying to the court on immigration deportations.

The constitutional challenge to President Obama’s executive action on immigration keeps getting more remarkable. A federal judge has now exposed how the Justice Department systematically deceived lower courts about the Administration’s conduct, and he has imposed unprecedented legal measures to attempt to sterilize this ethics rot.

On Thursday District Judge Andrew Hanen of Texas found that Obama Administration lawyers committed misconduct that he called “intentional, serious and material.”  In 2015 he issued an injunction—now in front of the Supreme Court—blocking Mr. Obama’s 2014 order that rewrote immigration law to award legal status and federal and state benefits to nearly five million aliens.

When 26 states sued to block the order in December 2014, Justice repeatedly assured Judge Hanen that the Department of Homeland Security would not start processing applications until February 2015 at the earliest. Two weeks after the injunction came down, in March, Justice was forced to admit that DHS had already granted or renewed more than 100,000 permits.

Justice has also conceded in legal filings that all its lawyers knew all along that the DHS program was underway, despite what they said in briefs and hearings. One DOJ lawyer told Judge Hanen that “I really would not expect anything between now and the date of the hearing.” As the judge notes, “How the government can categorize the granting of over 100,000 applications as not being ‘anything’ is beyond comprehension.”

Justice’s only explanation is that its lawyers either “lost focus on the fact” or “the fact receded in memory or awareness”—the fact here being realities that the DOJ was required to disclose to the court. The states weren’t able to make certain arguments or seek certain legal remedies because the program supposedly hadn’t been implemented, leaving them in a weaker legal position.

More to the point, an attorney’s first and most basic judicial obligation is to tell the truth. Judge Hanen concludes that the misrepresentations “were made in bad faith” and “it is hard to imagine a more serious, more calculated plan of unethical conduct.” Many a lawyer has been disbarred for less.

As a result, Judge Hanen ordered that any Washington-based Justice lawyer who “appears or seeks to appear” in any state or federal court in the 26 states must first attend a remedial ethics seminar on “candor to the court.” He also ordered Attorney General Loretta Lynch to prepare a “comprehensive plan” to prevent such falsification. Such extraordinary judicial oversight is usually reserved for companies with a pattern of corruption or racially biased police departments. Justice is sure to appeal, and whether Judge Hanen has the jurisdiction to impose his plan is uncharted legal territory.

I’ve written about the DOJ’s astoundingly unethical behavior in the immigration case before here, here, and here, as well as other cases such as the litigation involving IRS targeting of conservative groups.

Liars gonna lie, I guess.  Usually, the threat of losing one’s law license is enough to prevent such blatant lies to the court. For some reason, the Obama Administration’s Department of Justice seems unable/unwilling to tell the truth. They must think they’re  “special.”

HOUSE WINS ITS HISTORIC OBAMACARE LAWSUIT: A federal district judge in D.C., Rosemary Collyer, today ruled in favor of the U.S. House of Representatives in its historic lawsuit against the Obama Administration. Judge Collyer granted the House summary judgment on its claim that the Obama Administration had violated separation of powers by spending money–without any congressional appropriation to do so–on the Affordable Care Act’s so-called “cost sharing subsidies” (subsidies that essentially help low-income individuals pay for out-of-pocket costs such as deductibles and copays).

Judge Collyer back in December had ruled that the House of Representatives had standing to bring its separation of powers claim– which was itself an historic decision. Some of you may recall that my colleague David Rivkin and I have long argued—contrary to many naysayers–that the House would have standing to sue the Administration, and that it would ultimately win its constitutional claim on the merits.

Now that the House has won its constitutional claim on the merits at the trial level, the Obama Administration will appeal to the D.C. Circuit Court of Appeals, which has been packed in recent years with Obama appointees. Depending on how the D.C. Circuit rules, the case may be headed for the Supreme Court.

This is for the Obama Administration, which seems to think it’s above the Constitution:

TRUMP’S GENDER “PROBLEM”: The repeated talking point that Donald Trump has a “problem” with female voters turns out to be driven largely by party affiliation and race rather than gender itself.  The New York Slimes Times has a piece today titled “The Women Who Like Donald Trump,” as though it such women are a rare breed worthy of examination. Salon has an even more ridiculous piece, “Trump’s Misogynist Campaign.”

But exit polling from the Republican primaries in West Virginia and Nebraska indicate that Republican women supported Trump at essentially the same rate as women’s participation in the primary. The same absence of a “gender gap” existed prior to Cruz and Kasich suspending their campaigns, as is evidenced by exit polls in Republican primaries such as New York, Wisconsin, and Indiana.

Even the Quinnipiac poll released yesterday that focuses on the swing states of Florida, Ohio and Pennsylvania show that while Clinton outpaces Trump among all women voters (not merely Republicans), her gender advantage appears to be race-specific, with Clinton holding a commanding lead with non-white women, but Trump actually beating Clinton among white women. In Florida, Clinton has a 13 point advantage among women (48-35) but Trump actually leads Clinton by 3 points among white women (43-40).  In Ohio, Clinton enjoys a 7 point lead among female voters over Trump (43-36), but once again, Trump has a 7 point advantage over Clinton among white women (42-35).  In Pennsylvania, Clinton enjoys her largest gender advantage, beating Trump by 19 points among women (51-32)– a gap that narrows to 6 points among white women (45-39).

Clinton’s gender advantage is weaker than Obama’s 12 point advantage over Romney with female voters in 2012.  And the gender difference in presidential elections almost always favors the Democrats’ candidate, suggesting that Hillary’s gender advantage may be due more to the fact that she is a Democrat than any particular gender “problem” specific to Trump.  Other recent Republican candidates had similar gender gaps without facing incessant accusations of misogyny. John McCain, for example, had a 14 percent deficit versus Obama among female voters in 2008.  George W. Bush had an 8 percent female deficit versus Gore in 2000. Indeed, the last Republican presidential candidate to win among female voters was George H.W. Bush in 1988, who beat Dukakis among women 52-48.

There is little doubt that Trump has high “unfavorable” ratings with women, but this doesn’t appear to be translating into voting against him, at least among Republican women and white women. This should not be particularly surprising, as Hillary Clinton’s “unfavorable” ratings among women are also quite high–with 52 percent of women characterizing Clinton as “unfavorable” in a recent PPP poll–and of course even higher among men (59 percent), yet it doesn’t appear to stop Democrats of either gender from pulling the lever for her.

Don’t get me wrong: Donald Trump is more popular among men than women, and Hillary Clinton is more popular among women than men. But the gender gap between the two candidates is not as large as has been reported by the media, and appears to be driven mostly by party affiliation and race than gender itself. I would be very interested to see any data that focuses specifically on the Trump-Clinton gender preference among independent voters, which may be a more accurate indicator.

AMERICANS ARE SICK OF IDEOLOGY: Peggy Noonan explains why the Trump train is gaining speed, “Simple Patriotism Trumps Ideology.”

In my continuing quest to define aspects of Mr. Trump’s rise, to my own satisfaction, I offer what was said this week in a talk with a small group of political activists, all of whom back him. One was about to begin approaching various powerful and influential Republicans who did not support him, and make the case. I told her I’d been thinking that maybe Mr. Trump’s appeal is simple: What Trump supporters believe, what they perceive as they watch him, is that he is on America’s side.

And that comes as a great relief to them, because they believe that for 16 years Presidents Bush and Obama were largely about ideologies. They seemed not so much on America’s side as on the side of abstract notions about justice and the needs of the world. Mr. Obama’s ideological notions are leftist, and indeed he is a hero of the international left. He is about international climate-change agreements, and leftist views of gender, race and income equality. Mr. Bush’s White House was driven by a different ideology—neoconservatism, democratizing, nation building, defeating evil in the world, privatizing Social Security.

But it was all ideology.

Then Mr. Trump comes and in his statements radiate the idea that he’s not at all interested in ideology, only in making America great again—through border security and tough trade policy, etc. He’s saying he’s on America’s side, period.

Exactly. The average American doesn’t give a damn about either political party. They vote for one party over another simply because one party comes closer to reflecting their views than another, or because one candidate seems more genuine, or less corrupt, than another.  They don’t place either political party above their own self-interest, or the nation’s interest.  The GOP (as well as the Democrats) has driven most of these independent-minded Americans away by elevating party and politics above country.

Trump’s appeal is grounded in an absence of a rigidly defined, party-centric ideology, and his elevation of country over party. In other words, Trump–the quintessential political outsider–is an average Joe (albeit a very wealthy one).

ME GUSTA TRUMP: PORTRAIT OF A HISPANIC TRUMP VOTER: The New Yorker’s piece is dripping with incredulousness, reading like a portrait of a rarely seen (and dangerous) species:

John Castillo grew up in Lincoln Heights, the heart of Hispanic Los Angeles, in a tight-knit Mexican-American family. His father’s name was Juan, but his mother decided to name their son John. . . .

After the Marines, Castillo moved back to California and went to work for U.P.S. He’s now an inspector for an aerospace company. He was once a Democrat but is now a conservative and a Republican. The transition happened in the Marines. “The way they scream at you, it hardens you,” he says. “It makes you understand the importance of respecting the law.” He also thinks travel helped him get rid of a “naïve” point of view that he associates with liberal politics. He believes in the importance of the Second Amendment. . . .

His Twitter bio reads “devout Catholic” and “lifelong pro wrestling fan.” He’s also a fan of Spanish-language radio, and he retweets Pope Francis and the W.W.E. with equal enthusiasm. And he is also a passionate supporter of Donald Trump.

Fourteen per cent of Hispanic voters say they will “definitely support” the Republican candidate in November, and Castillo, who describes himself as an “American of Mexican descent, in that order,” is not an anomaly in his support for Trump. Although eighty per cent of Latino voters held an unfavorable opinion of Trump in a recent Washington Post/Univision poll, a fifth of Hispanic Republicans said they planned to vote for Trump during the Party’s primaries. That level of support has remained constant in states with a discernible Hispanic presence. According to entrance and exit polls, Trump got just under half of the admittedly few Hispanic Republican votes in Nevada and a quarter of them in Texas, surpassing Marco Rubio in both instances. Rubio won Florida’s Latino vote (seventeen per cent of all Republican voters) by a wide margin, but Trump’s backing among Hispanics remained at twenty-six per cent. .  . .

Over several recent conversations, Castillo explained his support for Trump in meticulous detail. At times, he sounded like the many white voters who have been inspired by the candidate.  . . .

When I responded that plenty of those whom he wants to protect could potentially be deported en masse by President Trump (there are a million undocumented immigrants living in Los Angeles County, more than in any other county in the United States), Castillo rejected the idea that his views were contradictory. I’d much rather live surrounded by my own people than any other,” he says, “but illegal is illegal.” And yet, there is a possibility that gives him pause: What if Trump keeps his word and rounds up Castillo’s friends and neighbors? “If he were to try that there would be riots and uprisings,” he says, blinking rapidly. “If he did that I would fight back.”

The New Yorker writer, Leon Krauze, is a Mexican journalist and Univision news anchor out of Los Angeles. He is clearly baffled that any Hispanic would ever even consider voting for Trump because of Trump’s pledge to crack down on illegal immigration. He clearly assumes that illegal immigration–and illegal immigration alone–is the only issue of concern to Hispanic-American voters, in much the same way that liberal/progressives often assume that abortion is the only issue of concern to women, or affirmative action or police brutality are the only issues of concern to blacks.

The notion that an Hispanic, black, female, Asian, LGBTQ, or any other American could put “American” before these identity politics-driven categories is baffling to progressives. Yet Trump won the support of almost 3 in 10 Hispanic voters in the Florida Republican primary, almost half of Hispanic voters in the Nevada Republican primary, and 26 percent of Hispanic voters in the Texas Republican primary (the latter two States’ Hispanic population being heavily comprised of individuals of Mexican heritage). These are remarkable numbers, considering that the other two closest GOP competitors–Rubio and Cruz–are Hispanic-Americans and native sons in Florida and Texas, respectively.

Of course no one really wants to point out this inconvenient truth: Americans are Americans, and they don’t always march to the progressive, politically correct tune.

CAITLYN’S COURAGE: “Backlash over Caitlyn Jenner’s Cruz Support Proves Leftists are the Real Bigots.”

GOPe IS DEMEANING ITS OWN BASE AND FIGHTING ITS EXPANSION: Investors Business Daily has an editorial, “Dazed and Confused: The Republican Establishment Has Had It Coming.”

Donald Trump’s string of victories on Super Tuesday has left the Republican establishment dazed and confused. The GOP’s political brain trust (and we use that term ironically) seems to be asking: Where did all these angry voters come from?

The revolt of the working class is dismissed as a movement of political philistines. The left calls them rednecks; the right calls them “low-information voters.” But that speaks volumes about the incompetence of pollsters, pols and campaign pros in both parties — the parties that profess to stand for and behind these voters — and how oblivious they are to what’s really desired.

Rank-and-file Republicans have been shouting at the political class for years, but no one’s paid attention. Party professionals are so disconnected that they’re seriously thinking of rolling out Mitt Romney as a last-minute alternative to Trump. How delusional can you get?

Trumpism rises above party identification and all the micro-compartmentalizing of voters that the political class has spent tens of millions of dollars supposedly perfecting. But if they’re so smart, why didn’t they see this voter hurricane coming?

Even more delusional are the elitist liberal Democrats who are celebrating because “Trump can’t win.” Right. That’s what the Republican brain trust said six months ago about The Donald’s chances. They could be wrong again. Trumpism may steamroll right over the Clintons; Hillary is the epitome of everything voters have come to detest about Washington.

Amen. What is the GOP establishment smoking? They’re behaving like they’re zoned out on crack–hypersensitive, overheated, paranoid, and filled with anxiety. Why do they not gracefully accept the decision of their own voters?

The rise of Donald Trump is a direct result of the GOP’s failure to listen to, or even care about, the issues of concern to ordinary (i.e., beyond the Beltway) voters. They want a leader who ardently defends U.S. sovereignty, security, and economic interests, and who overtly snubs stifling political correctness. They don’t want a patrician like Mitt Romney, whose speech today smacks of a controlling, wealthy father chastising his upstart children for their foolish attempts at independence.

We don’t need lectures. We need leadership. And more importantly, we need someone who can energize enough voters to defeat Hillary Clinton.

GO ON AND BURY IT ALREADY: Laura Ingraham on “The Suicide of the GOP Establishment.”

Here is something to think about as we approach Super Tuesday.

If Marco Rubio becomes president, we can expect:

1.) That he will work with Democrats and the GOP leadership in Congress to pass something that looks like the Gang of Eight amnesty bill.

2.) That he will urge Congress to pass any trade agreements that Obama has signed.

3.) That he will send significant numbers of U.S. troops to the Middle East.

4.) That his foreign policy will be developed by many of the same people who advised George W. Bush.

5.) That his economic policy will reflect the views of those who were in power when the United States was hit by the economic crisis of 2008.

Now, I don’t think any of these points are truly controversial. Somewhere, there may be naïve people who actually believe that Rubio will put border enforcement first. But all sophisticated analysts of politics — including the folks at National Review — certainly expect that a President Rubio will support the same type of amnesty that was supported by Sen. Rubio. And on the other issues, Rubio has not even pretended that he will break with the Obama/Bush trade policy, the Bush foreign policy, or the Bush economic policy.

For almost eight years, it has been increasingly clear that many, many Republicans — probably a majority of the party — do not agree with any of the five principles outlined above. . . .

These voters have tried, through every means available, to make their opposition felt. They are the reason that Eric Cantor is no longer in the House. They are the reason that the Gang of Eight bill didn’t pass. They are the reason that John Boehner is no longer speaker. And they are the reason that Donald Trump and Ted Cruz have dominated the polls for months. . . .

As a committed conservative for more than three decades, I am not happy about the potential break-up of the GOP. I have supported the Republican Party for almost 40 years, and I fully intended to support it for the rest of my life. I have great respect and admiration for many of the people in the Rubio camp, and I know we have won important victories together.

But I do not see how things can go on as they are now. I do not see how you can ask the working-class people of this country to support a collection of policies that have failed them over and over and over.

I couldn’t agree more. Rubio would be a far better President than Hillary Clinton (or Bernie Sanders), but he wouldn’t exactly shake up D.C. or the GOP establishment. I would certainly vote for him if he became the GOP’s nominee, much the same as I have for several prior GOP nominees–without enthusiasm. But I wouldn’t expect anything to really change.

It would be business as usual: The same, tired faces populating the cabinet and political appointments within the agencies. The same, tired policies. The same, tired political gridlock and finger-pointing, but no real changes to the lives of ordinary Americans. The GOP establishment in D.C. would be thrilled: They would have full employment, be appointed to high-ranking government positions, obtain lucrative consulting, lobbying and other government contracts, and generally have a sense of well-being because they are “back in power” (which is the most important thing to the D.C. elite). But for the rest of us, the oppressive sense of Republican stagnation (both intellectual and economic) would continue unabated.

IT’S JUST THE GOPe’S LATEST DELUSION: Sahil Kapur at Bloomberg examines “Four Problems With the ‘Winnowing’ Theory of Trump’s Downfall.”

Jeb Bush’s decision to drop out of the presidential race after a dismal fourth-place finish in South Carolina sped up a process that Republican elites have long been praying for: a winnowing of the field that could thwart the candidacy of Donald Trump.

The theory is that Trump, who notched his second consecutive primary victory on Saturday, is a factional candidate with a “hard ceiling” of support limited to the one-third of the party. . . .

Trump, however, bristled at that argument during his victory speech Saturday night.

 “A number of the pundits said, ‘Well, if a couple of the other candidates dropped out, if you add their scores together it’s going to equal Trump,'” he said in a mocking tone. “But these geniuses—they don’t understand that as people drop out I’m going to get a lot of those votes also. You don’t just add them together.”

Trump has a point, and a close examination of Republican voter data shows that the “winnowing” theory has four serious flaws.

1. It’s unclear Trump loses a three-person race

An Economist/YouGov national survey released last week tested the theory that Trump would suffer in a three-person race with his two chief rivals. It found Trump winning with 46 percent of the vote, ahead of Marco Rubio with 28 percent and Ted Cruz with 26 percent. . . .

2. Trump’s ‘hard ceiling’ is overrated

. . . . One way to test this, pollsters say, is to gauge what percentage of voters could see themselves supporting a candidate.

The January NBC/Wall Street Journal survey found that 65 percent of likely Republican voters could see themselves supporting Trump, a staggering jump from the 23 percent of voters who did last March, before he announced his presidential run. Cruz and Rubio fared modestly better, at 71 percent and 67 percent, respectively.

“The longer Donald Trump stays in the race, the more likely GOP voters are willing to vote for him,” Republican pollster Frank Luntz tweeted in response to that statistic.

By contrast, in January 2012, 59 percent of Republicans saw Romney, who went on to win the nomination, as “acceptable,” according to Gallup.

3. Trump’s support is broad-based in the party

While Rubio pitches himself as best-positioned to unite the party, Trump has a case of his own to make. Exit polls in the first three states show strong support for the New York billionaire across age groups, sexes, ideologies, income level, religious inclinations, issue preferences and candidate qualities.

Though he lost some subgroups in South Carolina—like well-educated voters, who Rubio won, and very conservative voters, who Cruz won—exit polls showed no glaring vulnerability that could undermine him. The only GOP faction that overwhelmingly views Trump as unacceptable is national party leaders and senior operatives, whose influence is diminished by the fact that they are loathed by the GOP base (a dynamic that helped give rise to Trump in the first place). . . .

4. ‘Second choice’ votes aren’t all anti-Trump

While a crowded field arguably helps Trump more than a small field, a NBC/SurveyMonkey poll released Thursday indicates that supporters of other candidates would not unify against Trump as others drop out.

The survey found that Bush backers are torn between Rubio (19 percent), John Kasich (16 percent), Cruz (12 percent) and Trump (11 percent). Kasich fans are torn between Rubio (24 percent), Trump (16 percent) and Cruz (10 percent). Ben Carson supporters split between Cruz (24 percent), Trump (22 percent) and Rubio (16 percent). . . .

Trump’s “unfavorable” ratings are not as high as many of the establishment pundits incessantly suggest. A February 10-15 Quinnipiac poll among registered voters (MOE +/- 2.7 percent) found that among Republicans and Republican-leaning Independents, Trump’s favorable rating was 62 percent, with unfavorables of 31 percent (the other 7 percent didn’t know one way or the other).

Cruz’s favorable/unfavorable rating, by contrast, was 62/23 (with 15 percent unable to say); Rubio’s favorable/unfavorable was 64/17 (with 19 percent unable to say).

One thing that is striking about the favorability numbers is that Trump’s fame translates into most Americans having an opinion of him, one way or the other (with only 7 percent not yet having formed an opinion). Cruz and Rubio, by contrast, have relatively large percentages of the public–more than two times as many–who have not yet formed an opinion about favorability (15 and 19 percent, respectively). This naturally makes the “unfavorable” ratings of Cruz and Rubio appear markedly smaller. The “favorability” ratings of all three candidates among Republicans, however, is remarkably similar, with 62 percent for Trump, 62 percent for Cruz, and 64 percent for Rubio–a virtual dead heat.

Trump’s favorability numbers among Republicans are very similar to Romney’s in February 2012 (65/28 among Republicans; not including Independents) and Trump’s favorability among Independents seems to be notably higher. Specifically, the Quinnipiac poll has Trump with a 62/29 favorability rating among Independents, whereas the February 2012 Gallup poll had Romney at 37/44 favorability among Independents. Romney’s low favorability ratings improved significantly after he became the presumptive nominee of the Republican party, a typical phenomenon that would presumably happen to Trump (or Cruz or Rubio) as well. Moreover, there is some evidence that Trump enjoys the support of around 20 percent of likely Democratic voters in a general election.

I’m not sure how accurate any of these polls are, but if one is going to attempt to rely upon them to prognosticate, the story being told about Trump’s favorability ratings leading to “unelectability” seems both exaggerated and incomplete.

RELATED: Trump’s lead grows with Jeb out of the race.

EVEN A BROKEN CLOCK IS RIGHT TWICE A DAY: Charles Koch has an oped in the Washington Post, “This is the One Issue Where Bernie Sanders is Right.”

As he campaigns for the Democratic nomination for president, Vermont Sen. Bernie Sanders (I) often sounds like he’s running as much against me as he is the other candidates. I have never met the senator, but I know from listening to him that we disagree on plenty when it comes to public policy. . . .

Democrats and Republicans have too often favored policies and regulations that pick winners and losers. This helps perpetuate a cycle of control, dependency, cronyism and poverty in the United States. These are complicated issues, but it’s not enough to say that government alone is to blame. Large portions of the business community have actively pushed for these policies. . . . 

Whenever we allow government to pick winners and losers, we impede progress and move further away from a society of mutual benefit. This pits individuals and groups against each other and corrupts the business community, which inevitably becomes less focused on creating value for customers. That’s why Koch Industries opposes all forms of corporate welfare — even those that benefit us. (The government’s ethanol mandate is a good example. We oppose that mandate, even though we are the fifth-largest ethanol producer in the United States.)

It may surprise the senator to learn that our framework in deciding whether to support or oppose a policy is not determined by its effect on our bottom line (or by which party sponsors the legislation), but by whether it will make people’s lives better or worse. . . .

Our criminal justice system, which is in dire need of reform, is another issue where the senator shares some of my concerns. Families and entire communities are being ripped apart by laws that unjustly destroy the lives of low-level and nonviolent offenders.

Today, if you’re poor and get caught possessing and selling pot, you could end up in jail. Your conviction will hold you back from many opportunities in life. However, if you are well-connected and have ample financial resources, the rules change dramatically. Where is the justice in that? . . .

At this point you may be asking yourself, “Is Charles Koch feeling the Bern?”

Hardly.

I applaud the senator for giving a voice to many Americans struggling to get ahead in a system too often stacked in favor of the haves, but I disagree with his desire to expand the federal government’s control over people’s lives. This is what built so many barriers to opportunity in the first place. . . .

I don’t expect to agree with every position a candidate holds, but all Americans deserve a president who, on balance, can demonstrate a commitment to a set of ideas and values that will lead to peace, civility and well-being rather than conflict, contempt and division. When such a candidate emerges, he or she will have my enthusiastic support.

I’ve always thought it was strange for Democrats to spend so much energy demonizing the Kochs who are, after all, libertarians who agree with the left on many social issues. Most of their non-profit spending goes to educational efforts aimed at enhancing individual liberty (which explains why they are the functional equivalent of Lucifer to liberals/progressives/totalitarians).

I guess the left needs to have its base hate someone specific who is really rich–their anti-Soros, if you will. Most of the other mega-wealthy Americans either try to stay out of the political spotlight, or they become supplicants to the political left (e.g., Bill Gates or Warren Buffett) in their attempt to ward off its ire. Just ask Chick-Fil-A, Hobby Lobby, Cracker Barrel, Whole Foods, Exxon, and many other businesses that have been the subject of negative publicity and boycotts (largely unsuccessful) after they dared to defy the political left. 

SIX PROMINENT DEMOCRATS & 3 BLACK CIVIL RIGHTS ACTIVISTS: These are the high profile funerals Obama has attended since becoming President, according to the Washington Post.

Anyone see a pattern here? But hey, I’m sure Obama’s decision not to attend the funeral of one of the most prominent Supreme Court Justices of the twentieth and twenty-first centuries isn’t political or anything.

INDICATIONS OF SANITY?: USA Today national poll shows entire Republican field can beat both Hillary and Bernie.

Against Hillary:

Trump wins 45% to 43%.

Cruz wins 45-44

Rubio wins 46-42

Against Bernie: 

Trump wins 44% to 43%.

Cruz loses 42-44

Rubio wins 46-42

The ads touting a “vote for Trump/Cruz” is a vote for the Democrats are not only offensive to a large segment of GOP voters who support these candidates, but also not supported by current polling data. Apparently each of the top three GOP candidates are capable of beating either Clinton or Sanders. Of course, that’s not necessarily saying much, since Clinton and Sanders are arguably the worst two presidential candidates in recent history.

DEMOCRATS’ ESTABLISHMENT FIGHTING THE BERN: This piece by Jay Michaelson at The Daily Beast is entertaining, and telling: “Dear Bernie Voters: A Vote for Him is a Vote for Donald Trump”:

THE SENATE’S ROLE ISN’T “ADVICE AND RUBBER STAMP”: The Appointment Clause of Article I, section 2 of the Constitution makes it clear that while the President has the power to nominate Supreme Court Justices, no appointment can take place without the “Advice and Consent of the Senate.”

As Michael Barone explains, the Senate’s checking function–particularly in a presidential election year–should be (and historically has been) taken seriously:

Obama has made it clear, in his statement after the announcement of Justice Scalia’s death and through press spokesman Eric Schultz, that he will send a nominee’s name to the Senate and that he will not do so during the current 10-day President’s Day recess. But the Senate doesn’t have to act on the nomination at all. . . .

The Constitution clearly gives the president the duty of appointing a justice and it clearly gives the Senate the prerogative to confirm or deny confirmation to that nominee. . . .

Newspapers like the Washington Post will be full of articles about the Obama nominee’s great skills and attractive background. For an example of what’s coming, consider this article on one possible nominee, who if confirmed and if he lives as long as Scalia would serve until 2052. The writer relishes the prospect of Republicans opposing an outwardly attractive Mexican-American nominee, though to me it brings back the spectacle of the Democrats in the first term blocking the appeals court nomination of Miguel Estrada for fear that he would become an attractive Supreme Court nominee. Estrada’s nomination was not reported to the floor when Democrats were in the majority and when Republicans gained the majority it was filibustered — the first filibuster of an appeals court nominee in history. So much for precedent. . . .

Republicans could argue, as their presidential candidates did in Saturday’s debate, that the president should not get to nominate a justice in his last year in office. That’s a principled stand, and one for which there is ample precedent. . . .

The last three times a justice was nominated and confirmed in a presidential year were in 1956, 1940 and 1932. In 1956 and 1932, Republican presidents named a Democratic nominee who served on their state’s highest courts: Dwight Eisenhower chose William Brennan (whose selection he later called one of his biggest mistakes) and Herbert Hoover chose Benjamin Cardozo. In 1940 a Democratic president named a Democratic nominee, Attorney General Frank Murphy, who was nominated on January 4 and confirmed by a Democratic-majority Senate 12 days later. If you want to take this as a precedent for consideration and confirmation of a nominee in an election year, note that it is 76 years old.

UPDATE: Adam J. White, on the basis of impressive historical research, makes the point in the Weekly Standard blog that the Senate has no constitutional duty to vote on Supreme Court appointments. In fact, the Senate has confirmed only 124 of 160 presidential Supreme Court nominations, and of the 36 unsuccessful nominees fully 25 received no up-or-down vote. The Senate would be well advised, in my view, to treat an Obama nominee the same way.

NO JOKE: TRUMP CAN WIN PLENTY OF LATINOS: So says the Daily Beast’s Ruben Navarrette:

COULD OBAMA MAKE A RECESS APPOINTMENT TO REPLACE SCALIA?: The answer appears to be “yes,” because (once again), the GOP-controlled Senate voluntarily has left itself vulnerable to the exercise of such presidential power. Article II, section 2 of the Constitution gives the President power to fill vacancies “during the recess of the Senate”:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

There’s a lot of misinformation out there. For example, a report by Fox News mistakenly focuses on the Adjournment Clause of Article I, section 5, which merely states that neither House of Congress may adjourn for more than three days without the consent of the other.  The Fox News reporter wrongly concludes:

[S]o long as both the House and Senate haven’t jointly agreed to “adjourn” for a stretch longer than three days, then there appears to be no way the president could make a recess appointment.

But the House and Senate are not operating under those circumstances right now. Both bodies of have adjourned until later this month for the President’s Day recess.

The Senate last met on Thursday. When doing so, it approved a “conditional adjournment resolution” for the Senate not to meet again until Monday, Feb. 22. The House met on Friday and at the close of business adopted the same adjournment resolution to get in sync with the Senate. The House is out until Tuesday, Feb. 23.

So, the House and Senate will not be meeting in the coming days. This is an adjournment and is not challengeable in court  the way the NLRB recess appointments were because both bodies have agreed with each other to adjourn.

Whether the House of Representatives is in adjournment is irrelevant to the Recess Appointments Clause power. The only salience of the Adjournment Clause is that, in NLRB v. Noel Canning (2014), the Supreme Court looked to the Adjournment Clause as relevant evidence in its quest to ascertain a minimum period of time for determining the meaning of a “Recess of the Senate” in the Recess Appointments Clause.  Specifically, the Court concluded:

The Adjournments Clause reflects the fact that a 3-day break is not a significant interruption of legislative business. As the Solicitor General says, it is constitutionally de minimis. A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess-appointment power. . . .

 If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. And a recess lasting less than 10 days is presumptively too short as well.

Thus, a Senate recess of fewer than 3 days is not enough to trigger the President’s recess appointment power; the Senate’s recess must be at least ten days in duration. 

So how long is the Senate’s present recess? It began on Friday, February 12, with the passage of S. Con. Res. 31 which states:

That when the Senate recesses or adjourns on any day from Thursday, February 11, 2016, through Saturday, February 20, 2016, on a motion offered pursuant to this concurrent resolution by its Majority Leader or his designee, it stand recessed or adjourned until 12:00 noon on Monday, February 22, 2016, or such other time on that day as may be specified by its Majority Leader or his designee in the motion to recess or adjourn, or until the time of any reassembly pursuant to section 2 of this concurrent resolution, whichever occurs first; . . .

Sec. 2. (A) The Majority Leader of the Senate or his designee, after concurrence with the Minority Leader of the Senate, shall notify the Members of the Senate to reassemble at such place and time as he may designate if, in his opinion, the public interest shall warrant it.

A Senate recess from February 12 (at noon) until February 22 (at noon) is a recess of exactly 10 days. Thus, under Noel Canning, the Senate is potentially in recess, and President Obama’s recess appointments power may be exercised.

Under S. Con. Res. 31, the only way to recall the Senate back into business before February 22 is with the “concurrence [of] the Minority Leader of the Senate,” Harry Reid (D-NV). Somehow I doubt Sen. Reid will grant such concurrence to reconvene, should President Obama decide to use this 10-day recess to make a recess appointment and replace Justice Scalia. But should President Obama try use this particular 10-day recess to replace Justice Scalia, the replacement would only be constitutionally permitted to serve until the end of the next session– i.e., until the end of the 1st session of the 115th Congress, which would be sometime in early January 2018. [H/T to Mike Rappaport and Casey M for noting this, as my original post referenced the end of the current session].

But there is another potential wrinkle. Specifically, the Congressional Record of February 12 shows that Senate declared that it would be in pro forma session (where a member of the Senate gavels in and gavels out every few days), declaring:

A unanimous-consent agreement was reached providing that when the Senate completes its business on Friday, February 12, 2016, it adjourn, to then convene for pro forma sessions only, with no business being conducted on the following dates and times, and that following each pro forma session, the Senate adjourn until the next pro forma session: Monday, February 15, 2016, at 11:00 a.m., and Thursday, February 18, 2016, at 9:00 a.m.; and that when the Senate adjourns on Thursday, February 18, 2016, it next convene at 3:00 p.m., on Monday, February 22, 2016, unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand adjourned until 3:00 p.m., on Monday, February 22, 2016.

Notice, however, that the pro forma status of the Senate’s recess is made conditional: “unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand [sic] adjourned until 3:00 p.m., on Monday, February 22, 2016.”

This matters because if the Senate is in pro forma session, the Noel Canning majority agreed that such pro forma sessions will block the president’s recess appointment power:

We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.

Unfortunately for the GOP Senate, however, the GOP-controlled House agreed to S. Con. Res. 31 on February 12 without objection. This means that under the plain language of S. Con. Res 31, the Senate is “in recess”–and not in pro forma session.

If this is indeed the case, the Senate is presently in the midst of a 10-day recess (not a pro forma session), and under Noel Canning, President Obama possesses the power to make a recess appointment to the Supreme Court until noon on February 22, when the Senate comes back in session.

JUSTICE SCALIA HAS DIED: No indication yet as to the cause of death. He was 79 years old.

Will the Republicans in the Senate have the fortitude to resist the inevitable far-left Obama replacement nominee? The Constitution literally hangs in the balance.

SO TRUMP IS A WHITE OBAMA?: Reihan Salam has column in Slate (he is also an executive editor of National Review, btw), “I Can’t Hate Donald Trump: I Do Hate Republicans Who’ve Enabled His Remarkable Popularity.”  The thesis seems to be that Trump is essentially a “white Obama” whose campaign is a dog whistle for working class whites:

I can’t bring myself to hate Donald Trump. Part of this is a quirk of biography. Like a lot of native New Yorkers around my age, I find his outer-borough accent so comfortingly familiar that I can’t help but smile whenever I hear his voice, even when he’s saying something outrageously offensive. To a certain kind of smart, scrappy, lower-middle-class New York youth in the ’80s and ’90s, Trump was the living embodiment of gaudy success—a kind of mash-up of Santa Claus, Scrooge McDuck, and Vito Corleone. . . .

Trump is strongest not in the metropolitan corners of America, where he’s spent most of his life. Rather, his strongholds are the mostly overlooked sections of the South, Appalachia, and the rural and semi-rural North. . . .

Many have been struck by the overwhelming whiteness of Trump’s campaign, not least the small number of self-identified “white nationalists” who’ve rallied around his campaign. I would argue that the Trump coalition illustrates how whiteness as a category is so expansive as to be almost meaningless. The Scots-Irish or “American” whites who see Trump as their champion are profoundly different from the metropolitan whites who dominate the upper echelons of U.S. society—so much so that the convention of lumping them together as “white” detracts far more from our understanding of how they fit into our society than it adds to it. J.D. Vance, author of Hillbilly Elegy, a forthcoming book on the place of Appalachian whites in modern America, estimates that roughly one-quarter of whites belong to the Scots-Irish tribe that has embraced Trump. If we were to separate out these Americans as a race or ethnicity unto themselves, Vance writes, we would finds rates of poverty and substance abuse that would shock our national conscience. But we don’t generally collect detailed statistics on the Scots-Irish. . . .

When Barack Obama first emerged on the political scene, he excited voters who saw in him a reflection of their own experiences. His mixed ancestry, his upbringing as the son of an intellectually curious and at times very poor single mother, and his experience of upward mobility through higher education—all of these experiences resonated with Americans who’d had similar journeys, and who felt validated by Obama’s narrative.

Trump and Obama are almost as different as one American can be from another. Nevertheless, Trump has built a gut-level connection that is no less formidable, and with an entirely different set of Americans. . . .

MOST ASTUTE TAKEAWAY FROM DEM DEBATE: Black Lives Don’t Matter to Clinton and Sanders–Only Black Votes. The self-proclaimed “Conservative Black Chick,” Crystal Wright, has an oped in The Telegraph that documents the vomit-inducing racial pandering of Bernie Sanders and Hillary Clinton during last night’s Democrats’ debate:

Sanders’ solution to his black and brown problem is to break bread with Sharpton in Harlem. The good Reverend Al, who hasn’t given a sermon since I can recall, never met a racial riot or protest he didn’t want to incite.

How insulting to black people that Sanders thinks all he has to do is meet with a buffoon like Sharpton to secure the black vote. As I wrote in my new book Con Job, Democrats “don’t grant blacks permission to be free-thinking individuals”. We’re merely supposed to follow the orders of a profiteer like Sharpton.

Not that Sanders is any better than Clinton, who in 2008 spoke in a “black” accent at a campaign event at a black church in Charleston. Democrats in general take the black vote for granted and insult blacks as political dummies. . . .

The fact is Hillary will say and do anything to get elected and black votes matter to Hillary more than black lives ever will. It’s outrageous for any black American to vote for Hillary. They’d be voting for their demise. . . .

What’s so sad is the black vote can be won or bought so easily with these optical illusions from Democrats like Hillary and Bernice. No other race in America but blacks votes solidly for one party and allows themselves to be politically manipulated like stuff animals. . . .

THE GROWING STENCH OF CLINTON CORRUPTION: The Washington Post is reporting that the “Clinton Foundation Received Subpoena From State Department Investigators.”

Investigators with the State Department issued a subpoena to the Bill, Hillary and Chelsea Clinton Foundation last fall seeking documents about the charity’s projects that may have required approval from the federal government during Hillary Clinton’s term as secretary of state, according to people familiar with the subpoena and written correspondence about it.

The subpoena also asked for records related to Huma Abedin, a longtime Clinton aide who for six months in 2012 was employed simultaneously by the State Department, the foundation, Clinton’s personal office, and a private consulting firm with ties to the Clintons.

The full scope and status of the inquiry, conducted by the State Department’s inspector general, were not clear from the material correspondence reviewed by The Washington Post. . . .

The potential consequences of the IG investigation are unclear. Unlike federal prosecutors, inspectors general have the authority to subpoena documents without seeking approval from a grand jury or a judge.

But their power is limited. They are able to obtain documents, but they cannot compel testimony. At times, IG inquiries result in criminal charges, but sometimes they lead to administrative review, civil penalties or reports that have no legal consequences.