The problem is Congress

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On the roster: The problem is Congress - I’ll Tell You What: Warm up by the partisan fire - Q Poll: Biden maintains steady lead nationally - Poll shows Arizona revival for Trump, Florida tight - Had to be Dale, not Chip

The Roosevelt cousins stand among the most imperious of all American presidents, ever disdainful of the leash placed on them by the Constitution.

So it is no surprise that they held our judiciary – the most republican of our branches – in low esteem. Both were populists who despised the fogeyism of judges who would not bend to the will of popular sentiment or take a permissive view of what “emergency” might allow the Constitution to be shelved.

Teddy Roosevelt, besotted with populism and full of rage at his successor and the courts for rejecting his vision of a larger, more powerful federal government, campaigned in 1912 for a system in which judicial rulings could be overturned by plebiscite. Imagine that. After hearings and appeals, a Supreme Court ruling would be put to the voters the next year.

Franklin Roosevelt kept the family tradition alive, and then some. F.D.R. had managed in his first term to get a lot of leeway from the courts on emergency measures instituted to deal with the Great Depression. But when it came to his desires to create permanent changes to the role of government, the courts said no. After he won re-election in 1936, Roosevelt sought his revenge.

Claiming that the justices of the Supreme Court were too old to handle the very busy modern caseload – the court rejected 87 percent of cases, after all – he wanted to give them a hand, 12 hands to be specific. Roosevelt sought the power to appoint an additional justice, up to a total of six more, for each sitting member over age 70 years and six months.

It was a scandal. After four years of conservatives warning that Roosevelt was a despot, he came charging into his second term demanding to pack the court with his picks. But it wasn’t the small, noisy conservative minority that sank FDR’s power play. It was moderate Democrats in Congress who kept the leash in play.

Roosevelt’s vice president, former House Speaker John Nance Garner of Texas, had been instrumental in winning passage of key New Deal provisions. Working with his acolyte and successor in the House, Sam Rayburn, and using his post as president of the Senate to lobby the upper chamber, Garner was a key to FDR’s success.

As Roosevelt’s ambitions grew and grew, Garner became uneasy – but it was the court packing that tore it. Garner, who jealously guarded the power of Congress, knew what he saw coming: A president with a puppet court to affirm his actions steamrolling the legislative branch for years to come. With the help of Judiciary Committee Chairman Henry Ashurst of Arizona, Garner and the institutionalists, bottled up the bill – much to the frustration of Roosevelt and his Senate enforcer, Majority Leader Joe T. Robinson of Arkansas.

It was the end of the partnership between Garner – who would later describe the vice presidency as not being worth a “bucket of warm spit” – and Roosevelt. By 1940 when Roosevelt was poised to throw over George Washington’s two-term standard, Garner was jockeying to block him at the Democratic convention and Roosevelt had replaced him with a true radical on executive power, Henry Wallace.

Roosevelt did end up getting to “pack” the court in his own way. By flouting the Washington standard and running four times, Roosevelt got to entirely remake the Supreme Court, making nine appointments. But thanks to Garner and the defenders of Congress, some leash was left to try to constrain the executive branch.

It is telling then for us to hear new talk of court packing coming from members of Congress, even if it is from the Roosevelts’ progressive populist heirs like Rep. Alexandria Ocasio-Cortez of New York and Sen. Ed Markey of Massachusetts.

America is cursed with a Congress – particularly in the Senate – that cannot find a way to set the bar so low for itself that it can succeed.

Congress has been devolving its own power for decades, outsourcing its constitutional duties to the executive and judicial branches. While they let agency bureaucrats and unelected judges legislate, lawmakers busy themselves with raising money and generating clicky soundbites in the hopes of attaining the nirvana of permanent incumbency.

What could be a greater admission of failure on the part of Congress than to try to turn the Supreme Court into some kind of super legislature, the composition and size of which is the most significant matter considered by the people’s representatives?

Lawmakers of the first Roosevelt cousin’s time changed the way we elect Senators, arguing that having state legislatures choose members of the upper chamber was undemocratic and invited corruption. What we have a century later is progressives saying the Senate itself should play the same role for its new superior body, the Super Duper Supreme Court.

The buck got passed.

Somebody has to do the hard work of legislating and sorting out the problems that ensnarl the federal government to its current point of incapacity. We will be very sorry if Congress fails to retake its constitutional role as the first branch in the false hope that someone else will pick up the slack.

All the anguish we hear today about the presidency and the Supreme Court across the partisan gamut lands squarely at the feet of a Congress that outsources its work – a Congress that John Nance Garner wouldn’t even recognize.

“The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common.” – Alexander Hamilton, discussing common defense, Federalist No. 25

Smithsonian: “With its abundance of museums, art galleries and street art, New York City has long been a mecca for world-class art. However, many of the city’s most impressive pieces of artwork are hidden in plain sight, and you just have to know where to look (or listen) to find them. In her new book Art Hiding in New York, writer and art curator Lori Zimmer leads readers on a journey through Manhattan highlighting some of the island’s art gems tucked away in office building lobbies, downtown lofts and churches—all of them accessible (and free!) to the public. About 10 years ago, Zimmer began documenting all of the artwork she’d happen upon while navigating her way through the city’s bustling streets. ‘I was fired from a job at an art gallery and traumatized; I didn’t know what else to do with my time, so I started walking every street in Manhattan and began noticing the city’s abundance of art,’ Zimmer says.”

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Trump: 43.4 percent             
Biden: 50.8 percent             
Size of lead: Biden by 7.4 points             
Change from one week ago: Biden 0.2 points, Trump ↓ 0.2 points             
[Average includes: Quinnipiac University: Trump 42% - Biden 52%; NBC News/WSJ: Trump 43% - Biden 51%; NPR/PBS News/Marist: Trump 43% - Biden 52%; AP/NORC: Trump 40% - Biden 44%; Fox News: Trump 46% - Biden 51%; Kaiser Family Foundation: Trump 43% - Biden 48%.

(270 electoral votes needed to win)
Toss-up: (109 electoral votes): Wisconsin (10), Ohio (18), Florida (29), Arizona (11), Pennsylvania (20), North Carolina (15), Iowa (6)
Lean R/Likely R: (180 electoral votes)
Lean D/Likely D: (249 electoral votes)
[Full rankings here.]

Average approval: 44.2 percent  
Average disapproval: 53.2 percent  
Net Score: -9 points  
Change from one week ago: ↑ 1 point  
 [Average includes: Quinnipiac University: 43% approve - 53% disapprove; NBC/WSJ: 45% approve - 53% disapprove; NPR/PBS News/Marist: 43% approve - 53% disapprove; Gallup: 42% approve - 56% disapprove; Fox News: 48% approve - 51% disapprove.]        

We’ve brought “From the Bleachers” to video on demand thanks to Fox Nation. Each Wednesday and Friday, Producer Brianna McClelland will put Politics Editor Chris Stirewalt to the test with your questions on everything about politics, government and American history – plus whatever else is on your mind. Sign up for the Fox Nation streaming service here and send your best questions to HALFTIMEREPORT@FOXNEWS.COM.

This week, Dana Perino and Chris Stirewalt discuss how the passing of Supreme Court Justice Ruth Bader Ginsburg will impact the 2020 elections in both presidential and down ballot races. They also answer mailbag questions and talk about which counties are most in play, the early voting numbers in VA, and more. Plus, Chris hopes to crush vote tally trivia. LISTEN AND SUBSCRIBE HERE

Quinnipiac University: “In the race for the White House, former Vice President Joe Biden leads President Donald Trump 52 - 42 percent among likely voters in a Quinnipiac University national poll released today. Those numbers are unchanged from a September 2nd national poll when Biden led Trump 52 - 42 percent. … Democrats back Biden 96 - 2 percent, independents back him 49 - 41 percent, and Republicans back Trump 91 - 7 percent. Ninety-four percent of likely voters who selected a candidate for president say their minds are made up, while 5 percent say they might change their minds. … Likely voters were asked who would do a better job handling five issues: On handling the economy, Trump 49 percent, Biden 48 percent; On handling the military, Biden 49 percent, Trump 46 percent; On keeping you and your family safe, Biden 51 percent, Trump 44 percent; On handling the response to the coronavirus, Biden 55 percent, Trump 39 percent; On handling racial inequality, Biden 56 percent, Trump 36 percent.”

WaPo: “President Trump and former vice president Joe Biden are locked in close races in Florida and Arizona, according to a pair of Washington Post-ABC News polls in two Sun Belt battlegrounds the president won in 2016 that are crucial to his hopes for reelection in November. In Florida, likely voters split 51 percent for Trump to 47 percent for Biden, while registered voters split 47 percent for Trump to 48 percent for Biden. In Arizona, Trump’s margin is even smaller at 49 percent to Biden’s 48 percent among likely voters. Among Arizona’s registered voters, Trump is at 47 percent and Biden at 49 percent. All these differences are within the polls’ margins of sampling error. The findings in the two surveys are better for the president than other polls conducted in the two states recently by other organizations. The Post’s average of polls this month shows Biden with a two-point advantage in Florida and a six-point margin in Arizona.”

Widow of Arizona icon McCain backs Biden - NYT: “Cindy McCain, the widow of Senator John McCain of Arizona, formally endorsed Joseph R. Biden Jr. for president on Tuesday, praising the ‘character and integrity’ of her late husband’s longtime friend and colleague while voicing her unease with President Trump. Ms. McCain, who spoke in a video at the Democratic convention last month, said in a telephone interview that she had been uncertain about how public a role she would play in this year’s campaign. But after reading reports this month that described Mr. Trump denigrating members of the military, she said, she became ‘more and more frustrated’ with the president. ‘The most important thing that moved me a great deal was talking about troops’ being ‘losers,’’ Ms. McCain said, referring to an article in The Atlantic.”

Trump lavishes Cuban-Americans with praise, policy shifts - Bloomberg: “Donald Trump made an appeal to Cuban-Americans on Wednesday as polls showed him in a dead heat with Joe Biden in Florida, a crucial state for the president’s hopes for re-election. Trump spoke at the White House Wednesday morning ‘in honor of Bay of Pigs Veterans,’ referring to the failed U.S.-backed attempt nearly 60 years ago to oust the government of Fidel Castro. The president announced fresh sanctions targeting alcohol and tobacco from Cuba as well as hotels controlled by the Cuban government or its officials. The event came as Trump and Biden remain neck-and-neck in Florida. An ABC News-Washington Post poll released Wednesday showed Trump leading 51%-47% among likely voters, but Biden leading 48%-47% among registered voters.”

Monmouth University: “Donald Trump and Joe Biden remain locked in a tight race for Georgia’s electoral votes according to the Monmouth University Poll.  The overall stability masks shifting gains and losses among a key demographic group. … Among all registered voters in Georgia, Trump is supported by 47% and Biden is supported by 46%. … There have been some demographic shifts in support even though the top-line numbers remain basically unchanged. Biden maintains his advantage in 14 swing counties where the vote margins were closest in the 2016 presidential election. He leads Trump among registered voters in these counties by 54% to 34%, similar to his 58% to 38% lead in July. Both candidates are also holding steady in their base areas: Trump in the counties he won handily four years ago (71% to 25% now versus 68% to 25% in July) and Biden in counties that went solidly for Hillary Clinton in 2016 (70% to 24% now versus 71% to 22% in July).”

Fox News: “The brutal Supreme Court nomination battle, the worst pandemic to strike the globe in a century, a national economy flattened by the coronavirus, and the protests and violence that have flared in cities across the nation this summer will be some of the major topics Democratic presidential nominee Joe Biden and President Trump will debate next week as they face off for the first time in the 2020 general election. The nonpartisan Commission on Presidential Debates on Tuesday announced the issues that the moderator of the first debate – ‘Fox News Sunday’ anchor Chris Wallace – has selected as topics for the showdown. Wallace also included the Biden and Trump records and the integrity of the election – another crucial issue considering the president for months has railed against expanded voting by mail amid the pandemic, repeatedly charging that it would lead to a ‘rigged election.’ The nonpartisan commission … cautioned that the topics listed are ‘subject to possible changes because of news developments.’”

Team Trump worries trap set for Biden will catch Trump instead - Politico: “Donald Trump will face Joe Biden within days for the first of three presidential debates, and some of the president’s supporters are already bracing for a humiliating loss. White House allies, Republican donors and some of Trump’s closest advisers worry that a recent, frenzied push by his top lieutenants to portray Biden as a seasoned debater — with the goal of raising expectations for the Democratic presidential nominee — is too late and too disingenuous to have an impact when the two meet on the debate stage next Tuesday. They worry Trump has set a trap for himself by incessantly attacking Biden’s age and mental acumen. It’s a tactic the president has maintained even as his campaign publicly insists the former vice president is fully capable of a satisfactory performance.”

Team Biden expects Trump to ‘lie through his teeth’ at debate - Fox News: “Team Biden said it expects President Trump to ‘lie through his teeth’ at the first presidential debate between the two nominees -- while downplaying the significance it could have on the race as Trump and Democratic nominee Joe Biden face off for the first time next week. … A source familiar with the former vice president’s campaign told Fox News that they expect Trump will be ‘extremely practiced’ and ‘prepared’ to debate Biden. But the source that ‘there is no debate performance that can fundamentally shift the race because of what people are living through,’ referring to the coronavirus pandemic.”

Harris downplays debate skills in practices - Bloomberg: “Kamala Harris’s team is working to manage public expectations that her upcoming debate with Vice President Mike Pence will present her with an easy opponent, despite her withering attacks on Democratic rivals in earlier presidential primary debates. As the Democratic vice-presidential nominee readies for the face-off on Oct. 7 in Salt Lake City, her team has cast former presidential candidate Pete Buttigieg to play Pence in mock debates, according to two people familiar with the preparations. The debate would mark the highest profile moment for Harris and Pence of the final campaign stretch before the Nov. 3 election. While Harris has participated in multiple debates during the Democratic primary, neither she nor her Republican rival has taken part in a one-on-one debate in years.”

NBC News: “Four years ago, President Donald Trump lost the popular vote by 2.9 million votes and still won the White House thanks to a near-perfect geographic vote distribution that allowed him to capture big Electoral College prizes by razor-thin margins. The key? Trump's unprecedented 37-point margin among white voters without four-year college degrees, who are especially influential in the upper Midwest. But as the U.S. becomes more diverse and college-educated, Trump's core demographic is steadily declining. In 2020, noncollege whites are on track to make up about 43 percent of the nation's adult citizens, down from 46 percent in 2016. Meanwhile, whites with four-year degrees, who are trending blue and increasingly behave like a different ethnic group from noncollege whites, will make up 25 percent of adult citizens, up from 24 percent in 2016. And Black Americans, Latinos, Asians and other nonwhites, historically Democrats' most reliable supporters, will make up 32 percent, up from 30 percent four years ago.”

RNC is sending extra cash to Texas - Politico: “The Republican National Committee cut million-dollar checks to six state parties in August as it prepared for the fall campaign. But one payment stands out amid a torrent of money flowing to traditional battleground states: $1.3 million to once-brick red Texas. On one level, it’s an astonishing development. But for those paying close attention this year, it’s hardly surprising at all. Texas is more competitive this year than it’s been in a generation. And even though Democrats have been talking about this coming for, oh, perhaps 20 years, Texas has flown far under the radar in 2020 as states more essential to the battleground map (like Wisconsin) or more gettable for Joe Biden (like Arizona) suck up all the attention. But eyes would have popped if you traveled back to 2008 and told Texans, when Barack Obama lost the state by 12 points while winning nationally by 7 points, that the 2020 presidential contest in the state would be polling inside the margin of error.”

Ohio Lt. Gov. Jon Husted heckled during Trump rally - “Supporters of President Donald Trump expressed their displeasure with statewide mask mandates on Monday by loudly booing Lt. Gov. Jon Husted while he served as a warm-up speaker. Standing on stage at the Dayton International Airport, Husted attempted to model a ‘Trump 2020’ face mask while telling a joke. He struggled to arrive at the punch line, as he was repeatedly interrupted by boos. One audience member yelled for Husted, a former Republican Ohio House speaker who represented the Dayton area in the state legislature during the 2000s, to ‘get off the stage.’ … Husted told the crowd he and Gov. Mike DeWine are co-chairs of the Trump campaign in Ohio, drawing more boos.”

Fox News: “The Senate Homeland Security and Finance Committees on Wednesday released an interim report on their monthslong joint investigation into Hunter Biden’s role on the board of Ukrainian natural gas firm Burisma Holdings and his alleged ‘extensive and complex financial transactions.’ Homeland Security Committee Chairman Ron Johnson, R-Wis., and Finance Committee Chairman Chuck Grassley, R-Iowa, said their investigation has ‘faced many obstacles’ from Democrats on their committees and that executive agencies ‘failed to comply with document requests.’ … The 87-page report stated that Obama administration officials ‘knew’ that Hunter Biden’s position on the board of Burisma was ‘problematic’ and that it interfered ‘in the efficient execution of policy with respect to Ukraine.’ … Hunter Biden joined Burisma in April 2014 and, at the time, reportedly connected the firm with consulting form Blue Star Strategies to help the natural gas company fight corruption charges in Ukraine. During the time Biden was on the board the company’s board, then-Vice President Joe Biden was running U.S.-Ukraine relations and policy for the Obama administration.”

Freshness questioned - Politico: “But an interim report … is largely a compilation of previously public information — some of it rehashed anew by witnesses who already testified during the House’s impeachment inquiry last year — as well as news articles and strongly worded insinuations with little evidence to back them up. The report, titled ‘Hunter Biden, Burisma and Corruption,’ reprises these year-old claims and adds little new to a discussion first raised by President Donald Trump’s defense team in his impeachment trial before the Senate earlier this year, when the president was acquitted by GOP senators on charges of abusing his power by seeking to pressure Ukraine to investigate the Bidens. The report does little to substantiate allegations against the Democratic presidential nominee, which have been fueled in part by foreign actors linked to the Kremlin whom U.S. officials have said are attempting to interfere in the 2020 election.”

Roll Call: “The House swiftly passed a stopgap funding measure needed to avert a partial government shutdown in eight days after top congressional leaders reached a deal resolving a fight over farm payments. On a lopsided vote of 359-57, the House sent to the Senate a revised continuing resolution that would extend current funding for all federal agencies through Dec. 11. The bipartisan pact would restore money for farm payments sought by lawmakers from both parties that House leaders had rejected in an earlier stopgap measure introduced Monday. It also would restore new money for a pandemic-related program funding subsidized meals to children who would normally receive them when schools are open, among other nutrition assistance, Democrats said. … The measure includes new provisions that would extend pandemic-related flexibilities in the food stamp program for another year and expand the school meals program to those attending child care centers that were closed because of the pandemic, among other things.”

FDA expected to announce stricter vaccine standards - WaPo: “The Food and Drug Administration is expected to spell out a tough new standard for an emergency authorization of a coronavirus vaccine as soon as this week that will make it exceedingly difficult for any vaccine to be cleared before Election Day. The agency is issuing the guidance to boost transparency and public trust as it approaches the momentous decision of whether a prospective vaccine is safe and effective. Public health experts are increasingly worried that President Trump’s repeated predictions of a coronavirus vaccine by Nov. 3, coupled with the administration’s interference in federal science agencies, may prompt Americans to reject any vaccine as rushed and potentially tainted. The stakes are high: polls show the relentless politicization of the race to develop a vaccine is taking its toll.”

Cook Political Report: “With a Supreme Court nominee now all but certain to be confirmed by the GOP-controlled Senate this year (either before or after the election), it looks like there will only be two defections from Republican ranks — Maine Sen. Susan Collins, one of the most endangered incumbents up this fall, and Alaska Sen. Lisa Murkowski. Collins is one of two Republicans up this cycle representing states that President Trump lost. The other senator, Cory Gardner in Colorado, announced Monday he will back moving forward with a nominee — a change in the view he held in 2016, saying that the ‘next election is too soon.’ … He represents the state that Trump lost by the biggest margin (five-points) of any Republican up in 2020, and that gap is expected to widen in November. … Gardner's vote, though, may well seal his fate, even if it was probably heading toward a loss anyway. … Colorado Senate now moves from Toss Up to Lean Democrat.”

Team Biden spreads out to help boost competitive Senate races - Axios: “Joe Biden's campaign is storming states with competitive Senate races this week to help boost Democratic candidates in the run-up to the election. Supreme Court Justice Ruth Bader Ginsburg's death is galvanizing Democrats to fight harder for control of the Senate with less than two months before Election Day. Winning that chamber is the only hope Democrats have of responding to Republicans' plan to vote on President Trump's Supreme Court nominee before the election. Biden's campaign is also engaged in joint fundraising efforts with the Democratic Senatorial Campaign Committee (DSCC) to help candidates across the U.S. Biden will be in North Carolina on Wednesday, while his wife, Jill Biden, and Doug Emhoff, Sen. Kamala Harris's husband, take on Maine and Iowa.”

Pennsylvania election officials sound alarm on ‘naked ballots’ - Politico: “‘Naked ballots’ are fast shaping up as 2020’s equivalent of hanging chads. After the state Supreme Court ruled Thursday that mail-in ballots sent without a proper envelope — known as naked ballots — cannot be counted, Pennsylvania election officials are sounding the alarm that upwards of 100,000 votes could be tossed out in November in this key battleground state. … The decision on naked ballots was immediately seen as a victory for Trump’s campaign and state Republicans: They’ve argued in a lawsuit against Pennsylvania that such votes should be tossed out. Democrats countered with their own suit in state court that made the case they should be tallied. Because Democrats are planning to vote by mail at much higher rates than Republicans this year, any rejection of ballots without the necessary envelopes is likely to harm Biden’s campaign more than Trump’s.”

USA Today: “One of the most looked-up-to people in Washington stood at just 5-foot-1. Justice Ruth Bader Ginsburg died Friday at age 87 after four bouts with pancreatic, lung and colon cancer. She is remembered for her withering dissents and unrivaled work ethic that made her a formidable force on the Supreme Court for nearly three decades. The diminutive justice, who barely cracked 100 pounds on the scale for most of her adult life, was a giant to liberals. And she became a pop culture icon. Ginsburg defied gender boundaries throughout her legal career, leading to her historic appointment to the nation's highest court. She vowed to never be diminished by odds. As her health worsened, Ginsburg showed little sign of slowing down, physically or mentally. Ginsburg's perseverance, fierce attitude and push to break barriers transformed her to legend status. You can see her face on aprons, T-shirts and memes with the words ‘I dissent.’”

One with her D.C. community - Washingtonian: “Though she was known around the world as a feminist icon, and more recently as the Notorious RBG, around Watergate South in DC’s Foggy Bottom, Justice Ruth Bader Ginsburg was simply a longtime neighbor—albeit a revered one. ‘We’ve lived here, my wife and I, for five years, and she always said ‘hi,’’ says Henry Sondheimer, president of the Watergate South board. ‘She talked to everybody at the mailbox, and with the staff.’ Justice Ginsburg and her late husband, Martin Ginsburg, moved to the famous Washington address 40 years ago. It was conveniently located next to the Kennedy Center, where Ginsburg was a fixture in the audience of the Washington National Opera. Though Martin, who died in 2010, was known around the building as the much more outgoing half of the couple, residents say Justice Ginsburg was always warm and friendly.”

Mark Leibovich: ‘When Joe Biden’s in town, but it’s hard to tell’ - NYT

Trump wants fast action from SupCo on census case - AP

“The idea being, ‘OK, you're gonna steal my yard signs? Steal this one. Good luck.’” – Marshall Stern, of Newaygo County, Michigan, who put up a Biden/Harris billboard that looks like a giant yard sign in response to his yard signs being stolen and damaged.

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KPLC: “Evangeline Parish authorities are on the hunt for a suspect they say dressed up in a chipmunk outfit to rob a pharmacy Saturday. The Medicine Chest Pharmacy in Ville Platte was robbed at gunpoint, just after noon on Saturday, Sept. 19, according to information from the Evangeline Parish Sheriff’s Office. Surveillance video showed an armed suspect in a Chipmunk outfit running from the store’s parking lot to the rear door of the store, forcing an employee inside. Once inside, the suspect escorted the employee through the store at gunpoint as she filled his bag with narcotics. The suspect then walked out the rear door, and ran westbound toward a nearby apartment complex.”

“Donald Trump’s character — volatile, impulsive, often self-destructive — had not changed since the campaign. But it seemed as if the guardrails of our democracy — Congress, the courts, the states, the media, the Cabinet — were keeping things within bounds.” – Charles Krauthammer (1950-2018) writing about President Trump’s first 100 days in the Washington Post on May 18, 2017.

Chris Stirewalt is the politics editor for Fox News. Brianna McClelland contributed to this report. Want FOX News Halftime Report in your inbox every day? Sign up here.