Author Archives: weeklysift

Doug Muder is a former mathematician who now writes about politics and religion. He is a frequent contributor to UU World.


The best distillation of the Trump Doctrine I heard, though, came from a senior White House official with direct access to the president and his thinking.  … “The Trump Doctrine is ‘We’re America, Bitch.’ That’s the Trump Doctrine.”

— Jeffrey Goldberg, The Atlantic

“Fuck you, bitch, make me a sandwich” is the unofficial motto that rides sidecar to “Make America Great Again.”

– Amanda Marcotte, Troll Nation

This week’s featured posts are “The corporate tax cut will never trickle down.” and “Is Trumpism a new religion?

This week everybody was talking about separating immigrant families

Any discussion of this issue has to fight through the Trump administration’s disinformation campaign, which simultaneously brags about what it’s doing, denies that it’s doing it, justifies it by quoting the Bible, and blames Democrats for it.

Vox and The New York Times do a good job summarizing what’s going on.

Between October 1, 2017 and May 31, 2018, at least 2,700 children have been split from their parents. 1,995 of them were separated over the last six weeks of that window — April 18 to May 31 — indicating that at present, an average of 45 children are being taken from their parents each day.

The facts are just complex enough to allow Trump’s fans to fool themselves about the level of villainy being perpetrated.

  • When people are caught crossing the border without authorization, they have the right to claim that they are seeking asylum to avoid persecution in their home country. If they do, they can’t just be sent back without a hearing.
  • The courts that hear these cases are overwhelmed, so it takes months for an asylum case to be heard.
  • If border-crossers are not charged with a crime, they are held in immigration detention, where families are kept together. If they are charged with a crime, parents go to jail and the government takes custody of their children.
  • Court rulings limit how long people can be detained without a hearing, so many asylum-seekers have been released until their hearings, sometimes with an ankle bracelet. Not all show up for their hearings, and become undocumented immigrants.
  • Previous administrations did not charge asylum-seekers with a crime (unless some other crime was involved, like smuggling). They also typically held families (even those not claiming asylum) in immigration detention rather than send parents to jail, precisely to avoid the situation we’re seeing now.
  • The Trump administration has instituted a policy of pursuing criminal charges against anyone who crosses the border without going through an official entry point. The crime (improper entry) is a misdemeanor with a maximum jail time of six months for a first offense. NYT: “Unlike Mr. Obama’s administration, Mr. Trump’s is treating all people who have crossed the border without authorization as subject to criminal prosecution, even if they tell the officer apprehending them that they are seeking asylum based on fear of returning to their home country, and whether or not they have their children in tow.”
  • The government already had responsibility for children who show up at the border unaccompanied. (A wave of such children created an issue during the Obama administration.) The new children are entering a system already over-burdened. The Washington Post reports: “As of Thursday, 11,432 migrant children are in the custody of the Department of Health and Human Services, up from 9,000 at the beginning of May.”

Numerous reports are coming out about the facilities where the children are being held. It’s pretty horrifying, but I can’t blame HHS too much for that: If somebody dropped a couple thousand extra children on me, I’d have trouble arranging for their care too. The blame should rest higher up the chain.

Like many Trump administration policies — particularly those involving presidential advisor Stephen Miller, who has no qualifications for government office beyond his white supremacist views (“America was, until this past generation, a white country, designed for ourselves and our posterity. It is our creation, it is our inheritance, and it belongs to us.”) and would not have been hired by any previous administration — the family separation policy was poorly planned. There appears to be no system for reuniting the families, either in this country (after asylum is granted) or in their country of origin (after deportation). In many cases, the parent is deported while the child remains in government custody.

Trump has said pretty clearly what the breaking-up-families policy is about: It’s hostage-taking. He claims to hate the policy. But Democrats hate it more, because they have more empathy. So they should give in to his demands. It’s basically the same argument he’s made about DACA: He doesn’t want to deport the Dreamers, but he will if Democrats won’t pay his price.

You have to wonder how far he can push this kind of thuggery before even his supporters recognize what he’s doing. Suppose he starts taking immigrants out and having them shot until he gets his wall. It won’t be his fault, it will be the Democrats’ fault, because they won’t give him what he wants.

and about North Korea

Here’s how the Trump/Kim summit shakes out: Kim agreed to somewhat less than North Korea has agreed to in past documents. In exchange he got a huge propaganda victory: His flag was displayed as an equal of the American flag, and the President of the United States stood next to him and flattered him. Kim also got the very real concession of Trump canceling our military exercises with the South Koreans.

Imagine being a dissatisfied North Korean and hearing Trump say this:

His country does love him. His people, you see the fervor. They have a great fervor. … I think that he really wants to do a great job for North Korea. … And, he wants to do the right thing.

And human rights? It’s all relative.

“He’s a tough guy, it’s a tough country,” he told Fox News host Bret Baier Wednesday. Trump went on to praise Kim for taking over the country at such a young age calling him a “very smart guy” and a “great negotiator.” “I think we understand each other,” Trump added.

When Baier pressed Trump, protesting that Kim has done many “bad things,” the President was unmoved. “So have a lot of other people,” he said, before moving on to praise himself for his performance at the United States-North Korea summit this week.

In fact, Trump envies Kim:

He speaks and his people sit up at attention. I want my people to do the same.

In this hyper-partisan era, I find it useful to run a what-if-the-parties-were-reversed thought experiment: What if the exact same things were happening, but all the Republicans were Democrats and vice versa? Sometimes the experiment makes no sense, because you can’t really imagine the opposite party playing its role: I can’t picture President Hillary Clinton defending the Charlottesville Nazis, for example.

But the North Korea negotiation is a good place to run that experiment: What if President Hillary Clinton met Kim Jong Un without preconditions, signed a vacuous joint statement, flattered him effusively, gave a concession by cancelling military exercises with South Korea, and then came home claiming “There is no longer a Nuclear Threat from North Korea.“?

I think I’d be saying about what I’m saying now: Talking is better than not talking, so I’d give Clinton credit for that. But I’d be skeptical that anything real had been accomplished, and disturbed that the President of the United States had given Kim the propaganda victory of appearing together as a equal and being praised. The one-sided concession would bother me, and the no-longer-a-threat claim would seem unfounded. I think I’d be more inclined to imagine that something was going on behind the scenes, because I would trust Clinton’s intelligence and experience more than I trust Trump. But I’d still find the whole event worrisome and disturbing.

For Democrats in Congress, I think the difference would be between speaking up and keeping silent. But those who commented would say something close to what they’re saying now.

Republican statements, however, would bear no resemblance to what they’re saying now. They’d be talking about treason.

and voter suppression

I only skimmed the Supreme Court decision on Ohio’s method for purging its voter-registration rolls. But that was enough to convince me that I would have a hard time figuring out which side of the 5-4 decision was legally right. States are allowed to purge their voter rolls under the National Voter Registration Act, but the NVRA also restricts how they can do it.

Here’s what Ohio did: If someone didn’t vote for two years, the state sent them a mailing to find out if they’d moved. If the pre-addressed postage-paid response card didn’t come back, and if the person didn’t vote for another four years, they’d be removed from the rolls.

The NVRA says voters can’t be removed from the rolls just for failing to vote. Writing for the conservative majority, Justice Alito says the non-voting together with the card is a sufficient justification. Writing for the four liberal justices, Justice Breyer says it isn’t.

In general, I trust Breyer more than Alito. (Alito’s Hobby Lobby decision was horrible and seemed disingenuous at every turn.) And I know what I wish the law said. But without a lot more study, I can’t tell you how this should have come out.

Given that the Court has decided, I hope Ohio fixes this by referendum. Undoubtedly, lots of names are on the voter-registration rolls that shouldn’t be, but every study shows that this leads to very few illegal votes. (I’m planning to move this summer; I’ll bet my names stays on the rolls for years. But that doesn’t mean I plan to come back here and vote.) On the other hand, voter-registration purges invariably result in thousands of legal voters being turned away.

Even if the process Ohio used does satisfy the NVRA, it makes a lot less sense now than it did when the NVRA was passed. All of us get far more junk mail than legitimate mail, and we invariably throw out some mail we ought to open. It’s predictable that lots of legitimate voters won’t return the card.

and the Trump Foundation

It’s weird that the Clinton Foundation got so much critical attention during the campaign, when the Trump Foundation was clearly the sleazier enterprise.

Thursday, the New York Attorney General’s office filed a lawsuit against the Trump family and the Trump Foundation (which is incorporated in New York). According to the NYT, the suit “seeks to dissolve the foundation and bar President Trump and three of his children from serving on nonprofit organizations”, or at least “nonprofits based in New York or that operate in New York for one year, which would have the effect of barring them from a wide range of groups based in other states.”

The lawsuit claims that the Foundation has no employees and its board has not met since 1999. (New York state law requires at least annual meetings.) President Trump alone decides all grants and signs all checks. The Foundation’s accounts are managed by the same office that oversees all the other Trump Organization entities.

The sole criteria that the accounting staff used to determine whether to issue a check from the Foundation, rather than another entity in the Trump Organization or Mr. Trump personally, was the tax-exempt status of the intended recipient; no one made any inquiry into the purpose of the payment.

On several occasions listed in the lawsuit, the Foundation made payments that were clearly Trump’s personal responsibility. For example, in 2007 when his Mar-a-Lago club had a legal dispute with the Town of Palm Beach about the height and location of its flagpoles, the negotiated settlement included Trump contributing $100,000 to the Fisher House Foundation, a charity that benefits veterans. But Trump did not make this payment; the Foundation did. The lawsuit includes a photocopy of Trump’s handwritten note to the accounting staff: “DJT Foundation $100,000 to Fisher House (settlement of flag issue in Palm Beach)”. Trump reimbursed the Foundation in 2017, after he knew the issue was under investigation.

A longer-term and more complex abuse happened during the presidential campaign. Trump boycotted an Iowa debate (because Megyn Kelly would be a moderator) and held a parallel event to raise money for veterans’ charities. The money raised was channeled through the Trump Foundation, but the Trump campaign was in charge from beginning to end: It “planned, organized, financed, and directed” the event; the campaign slogan “Make America Great Again” was displayed on the podium; the charities receiving the money were chosen by the campaign and were often located in states that had upcoming primaries; much of the money raised was distributed during campaign events (with Trump presenting a giant check).

Mr. Trump’s wrongful use of the Foundation to benefit his Campaign was willful and knowing. Mr. Trump was aware of the prohibition on political activities and the requirement of restrictions on related-party transactions. Among other things, he repeatedly signed, under penalties of perjury, IRS Forms 990 in which he attested that the Foundation did not engage in transactions with interested parties, and that the Foundation did not carry out political activity. Mr. Trump also signed, again under penalty of perjury, the Foundation’s Certificate of Incorporation, in which he certified that the Foundation would not use its assets for the benefit of its directors or officers, and that it would not intervene in “any political campaign on behalf of any candidate.”

The New York attorney general’s office has made referrals to the IRS and the Federal Election Commission, which could take further action. Another NYT article quoted Jenny Johnson Ware, a criminal tax attorney in Chicago: “People have gone to prison for stuff like this, and if I were representing someone with facts like this, assuming the facts described in this petition are true, I would be very worried about an indictment.”

and the inspector general’s report on the FBI

I didn’t even skim the Justice Department’s 500-page report on the FBI’s Clinton email investigation. Here are Vox’ four takeaways:

  • The investigative decisions in the Clinton email case seemed to be made on the merits.

  • Some FBI officials expressed anti-Trump opinions in private messages.

  • The IG wonders whether Strzok may have pursued the Trump-Russia probe more vigorously than new Clinton emails found on Anthony Weiner’s laptop due to political bias. (But in the end that worked to Trump’s advantage. Since the Weiner emails were all duplicates, the sooner the public knew that the better for Clinton.)

  • The IG sharply criticizes Comey for deviating from policy and procedure in his statements about the Clinton case.

The idea that this report somehow de-legitimizes the Mueller investigation seems to be more Trumpian bullshit.

and you also might be interested in …

The $81 billion merger between ATT and Time Warner was completed shortly after a federal court rejected the Justice Department’s attempt to block it on Tuesday.

As best I can tell, this is one of those bad-guys-against-worse-guys stories, so it’s hard to know how to feel about it. In general, I dislike media mergers, because the media is concentrated enough already. But the Justice Department’s effort to block the merger appears to be Trump’s attempt to punish CNN, which is part of Time Warner. (The government was fine with Sinclair Broadcasting buying Tribune Media — requiring only that Sinclair not wind up owning two TV stations in the same city — because Sinclair slants even more towards Trump than Fox News does.)

So if the Justice Department had been trying to block the merger as part of some larger effort to step up antitrust enforcement, I’d be with them. But the message seems to be “You can get bigger, but only if we like your news coverage.” That strikes me as seriously dangerous to American democracy, so I’m glad they didn’t get away with it.

Some very bogus arguments have been made claiming that the Mueller investigation is unconstitutional. Here, they’re taken apart by George Conway — Kellyanne’s husband.

and let’s close with something funny

It’s been a while since I’ve linked to Bad Lip Reading. Here’s their NBA clip.


Is Trumpism becoming a new religion?

His followers are certainly religious, but they’re not Christians any more.

When Jeff Sessions quoted Romans 13 (“Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God.) to justify the villainous policy of taking immigrant children away from their border-crossing parents, he touched off a flurry of Bible-quoting in the media. Not only did Christian writers dispute his interpretation of Romans 13, which, after all, has been used to justify everything from slavery to the Nazi death camps, but they also unleashed a flurry of verses defending the rights of immigrants, such as Matthew 25:41-45, in which Jesus envisions Judgment Day proceeding like this:

Then he will say to those on his left, “Depart from me, you who are cursed, into the eternal fire prepared for the devil and his angels. For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.”

They also will answer, “Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?”

He will reply, “Truly I tell you, whatever you did not do for one of the least of these, you did not do for me.”

Or Leviticus 19:33-34, in the middle of the Laws of Moses.

When a stranger sojourns with you in your land, you shall not do him wrong. You shall treat the stranger who sojourns with you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt

But if those writers were expecting Sessions to slap his forehead and say “Oh, right, I get it now!”, they were disappointed. The policy continues, and Sessions still supports it.

That’s how it’s been since Trump descended the escalator to announce his candidacy in 2015. Trump has stood pretty much in direct opposition to the message of Jesus. Jesus advised his followers to “turn the other cheek” when attacked; but Trump always “fights back” — even against gold-star parents or military widows or men about to die. Jesus spoke out for “the least of these”; but Trump likes “winners” and despises “losers”. Jesus said that marriage was for life; but Trump is currently married to his third wife, and he has cheated on all of them. Jesus emphasized love and compassion, but Trump has so little compassion that needed to take notes (written by somebody else) into a meeting with shooting survivors so that he could remember to ask them about their experiences and to tell them he had heard them.

For laughs, take the Trump or Jesus quiz and see if you can identify which leader said which quote. (It’s pretty easy.)

It’s hard to find any line of the Sermon on the Mount that Trump would support: He’s not just anti-immigrant, but also anti-health-care, pro-weapon, anti-feeding-the-hungry, and just generally against the poor and the meek wherever they show their miserable faces. He’s a compulsive liar who brags that he can grab women “by the pussy” and get away with it.

And he got 81% of the votes of white evangelicals.

The evangelicals who didn’t back Trump are starting to feel like they don’t belong; some are dropping the evangelical label altogether. The largest Protestant denomination, the Southern Baptists, may become a battleground. It’s newly-elected president wants the denomination to become less political:

We believe that Jesus is the lord of the whole earth. He is the king of kings and he is the lord of lords. We believe that he, not any version of Caesar, is the Messiah. He is the Christ, the son of the living God, that salvation is found in him, not in the Republican platform or the Democratic platform, and that salvation did not come riding in on the wings of Air Force One. It came cradled in a manger.

And yet, the same convention that elected him featured a speech by Vice President Mike Pence, which climaxed with Trump’s campaign slogan:

I know that with your support and prayers, with the strong support of leaders at every level of government, with President Donald Trump in the White House, and with God’s help, we will make America safe again. We will make America prosperous again. And to borrow a phrase — (laughter) — we will make America great again.

When the Trump evangelicals explain the issues that cause them to support him, they bring up topics that don’t appear in the gospels at all: abortion and homosexuality. (With the new immigration policy, they can’t claim “family values” any more.) On immigration, white evangelicals side with Trump against Jesus: 68% deny that America has a responsibility to take in refugees.

Whatever this is, it isn’t Christianity.

More and more, metaphors of religion are used to describe Trumpism. Bob Corker called it “cult-like“. Dana Milbank wrote: “This isn’t religion. It’s perversion. It is not the creed of a democratic government or political party but of an authoritarian cult.” Cal Thomas asks who evangelicals follow: Trump or Jesus? Elizabeth Bruening says that Sessions and Press Secretary Sarah Sanders are “inventing a faith” in which order is the highest good.

But what if it’s not just a metaphor? What if what we’re seeing is an actual schism in American Christianity? On one side will be a genuinely Christian Christianity, one that takes the words of Jesus seriously. On the other side will be a Trumpist religion that is nativist and supports all the traditional supremacies: white, male, heterosexual, and born to wealth. One side will concern itself with the poor and victims of injustice. The other will preach a prosperity gospel in which God wants you to be rich and has his own reasons to leave the poor in the gutter. One side will promote humility, the other will glorify men of large egos, who never apologize or admit their mistakes.

Something bigger than politics is going on here. It goes way beyond cutting or raising taxes or wanting a bigger or smaller military. A large segment of American Christianity has been drifting away from Jesus for many years. Now they have found their voice and their leader.

The corporate tax cut will never trickle down

The immediate benefits of the corporate tax cut have gone to stockholders and executives rather than workers. The long-term benefits will too.

Dropping the corporate tax rate from 35% to 21% was the centerpiece of the tax reform package Republicans passed (with no Democratic votes) and Trump signed late last year. They sold that cut with the argument that lower corporate taxes would stimulate investment: Rather than build that new factory in Indonesia or Vietnam, a corporation might site it in Iowa instead, creating new jobs and raising wages. So while it might look like the benefits would go entirely to wealthy shareholders, in the long run that money would flow to American workers. American households, Trump economic advisors claimed, would see their incomes go up by $4000 a year over the next 3-5 years.

For a few weeks, it looked like the trickle-down was happening: A number of companies responded to the tax cut by giving their workers a one-time $1000 bonus — small potatoes compared to what the companies themselves were set to rake in, but not bad if it represented a down payment on future wage increases.

But how long would it take those increases to show up? Well, not immediately, in spite of the well-publicized bonuses. And not in one quarter. CBS reported in April that the corporate windfall (financed by increasing the federal budget deficit) was mostly going into stock manipulations.

In the first quarter, corporate America committed $305 billion to cash takeovers and stock buybacks, more than double the $131 billion in pre-tax wage growth for both new and existing workers subject to income tax withholding, TrimTabs calculates.

Worse, the Bureau of Labor Statistics is reporting bad news for “production and nonsupervisory employees”.

From May 2017 to May 2018, real average hourly earnings decreased 0.1 percent

The Washington Post elaborates, saying that this category “accounts for about four-fifths of the privately employed workers in America”. It also provides this graph.

How long? But it terms of the tax cut, it’s still early days. Of course the process of building new factories and hiring new workers would take longer than just a few months. So when should we expect the corporate tax cut to trickle down? Two years? Five years? Ten?

What about never?In his Friday column, Paul Krugman explains why the tax-motivated new factories and jobs and higher wages aren’t coming, not immediately and probably not ever. He labels his argument as “wonkish”, meaning that ordinary people who aren’t economists may find it hard to follow. So let me interpret a little.

The vision of low corporate taxes creating new jobs with higher wages comes from the Industrial Era, the age of coal-powered textile mills and Henry Ford’s assembly lines. Business investment in those days was mostly big, heavy equipment that cost a lot of money and was meant to last for decades or even longer. (I live in an apartment in a converted textile mill. The mill was built in the 1820s.) Businesses were national (or more likely, local) in those days, so a company located in Akron or Dearborn paid taxes in Akron or Dearborn.

That’s not what the economy looks like any more.

Tax havens. The biggest corporations are multi-national, and they book their profits in whatever countries their accountants choose. One trick is to transfer a company’s intellectual property to a foreign subsidiary, and then pay massive royalties and licensing fees to that subsidiary.

The rights to Nike’s Swoosh trademark, Uber’s taxi-hailing app, Allergan’s Botox patents and Facebook’s social media technology have all resided in shell companies that listed as their headquarters Appleby offices in Bermuda and Grand Cayman, the records show.

When pieces of your product — an iPhone, say — are made all over the world, who’s to say what country the profit is made in? Your accountants say. And they all say the same things: You made your profits in a tax haven.

Indeed, a tiny handful of jurisdictions — mostly Bermuda, Ireland, Luxembourg and the Netherlands — now account for 63 percent of all profits that American multinational companies claim to earn overseas, according to an analysis by Gabriel Zucman, an assistant professor of economics at the University of California, Berkeley.

Think about it: When was the last time you bought something marked “Made in Luxembourg”? Multinationals don’t build factories and employ workers in low-tax countries, they just route their profits there.

Krugman looks at the profit-to-wage ratio of foreign firms and local firms in a variety of countries.

If places like Puerto Rico and Ireland were just massively more productive than the US or Germany — producing enormous profits with relatively low labor costs — that would apply to their local firms too. But it doesn’t. For local firms, the ratio of profits to wages stays pretty constant across the board. It’s only foreign firms that have managed to unlock the Irish productivity miracle — not with actual production that employs workers, but via accounting tricks that claim profits produced by workers in other countries.

In short, multinational corporations have benefited enormously from Ireland’s generous tax laws. Irish workers, not so much. And with time, the corporations get better and better at gaming the tax system.

So lower US corporate taxes may induce corporations to book more of their profits here, for what that’s worth. But that’s an accounting gimmick, not an actual change in economic activity.

But even with that illusion making the effect look bigger than it is, won’t lower taxes still motivate investment and create jobs? Why doesn’t that work? This is where Krugman gets wonkish.

What investment means now. In the Industrial Era, nothing was more solid than a factory. Henry Ford started building his massive River Rouge complex in Dearborn during World War I, and it’s still there. Once it made Model T’s; now it makes F-150 trucks. The US Steel complex in Gary is even older, going back to 1908. Firestone in Akron, Caterpillar in Peoria — the big Industrial Era companies were virtually synonymous with the towns where their factories were.

In the Industrial Era, corporate investment was long-haul investment. You bought land and erected massive buildings to house huge machines. You dug canals and built railroad spurs that came right up to the beginnings and ends of your production lines. The industrialists who made those investments were looking half a century into the future, or even longer.

But most corporate investment these days is far more ephemeral. Take Google, the second-most valuable company in the world. What does it make exactly? Where is its River Rouge or Gary Works? If it wants to create a new product, it may have to hire some extra designers and programmers. But what does it invest in? An office, some computers. The office could be rented, the computers will be obsolete in a few years. Ditto for Facebook. Amazon also needs some warehouses, and maybe some robots to move boxes around. In a few years the warehouses could be somewhere else and the robots will be replaced by better robots. It’s all short-term stuff.

Whenever a company makes an investment, it’s weighing its expected profits against two things: the cost of capital (for example, the interest rate it has to pay on the money it borrows) and the depreciation rate (how fast the investment becomes obsolete). In the Industrial Era, when a factory complex or a railroad might be around for half a century, depreciation was low. So the cost of capital really mattered. If interest rates dropped from 6% to 4%, all your calculations changed. Investments you’d been putting off suddenly made sense again.

But when the equipment you’re buying is going to be scrap in 3-5 years, the cost of capital doesn’t matter nearly so much. Cutting interest rates still motivates people to buy houses, because those are long-term investments. But it doesn’t motivate business investment much any more. Krugman looks at the huge interest rate spike of 1979-1982, when the Fed pushed rates up over 20%. Housing investment crashed. Business investment not so much.

If that was divergence was happening already in the early 80s, it’s even moreso now.

What’s that have to do with tax rates? Now comes the wonky part:

What does this have to do with taxes? One way to think about corporate taxes in a global economy is that they raise the effective cost of capital. Suppose global investors demand an after-tax rate of return r*. Then the pre-tax rate of return they’ll demand in your country – your cost of capital — is r*/(1-t), where t is the marginal tax rate on profits. So cutting the corporate tax rate reduces the effective cost of capital, which should encourage more investment.

Let’s work an example of that. Suppose global investors are looking for a 5% return on their investment after taxes. (That’s Krugman’s r*.) If the corporate tax rate is 35%, they’ll need to make a pre-tax return of 7.7%. (That’s 5%/(1 – .35).) So for every $1,000 you invest, you make $77, you pay 35% of your profit in taxes ($27), and you wind up with $50, or a 5% profit.

Now cut the tax rate to 21%. Now you only need to make 6.3% before taxes to wind up with 5% after taxes. For every $1,000 invested, you make $63, pay 21% in taxes ($13) and wind up with $50.

So in this example, the tax cut effectively reduces the cost of capital from 7.7% to 6.3%.

That would have been a big deal to Henry Ford or Andrew Carnegie. Jeff Bezos or Mark Zuckerberg prefer the lower rate, of course, but it doesn’t drive their decisions in the same way.

Hence Krugman’s conclusion: It’s not that cutting corporate taxes will have no effect on jobs or wages, but it’s going to work out to a huge loss of goverment revenue in exchange for a small number of jobs.

But the vision of a global market in which real capital moves a lot in response to tax rates is all wrong; most of what we see in response to tax rate differences is profit-shifting, not real investment. And there is no reason to believe that the kind of tax cut America just enacted will achieve much besides starving the government of revenue.

The end result. Krugman’s argument needs one more step, because he leaves one question unanswered: Why should you care if the government collects less tax revenue? OK, maybe the lost revenue flows mainly to rich shareholders and billionaire CEOs and only a few jobs are created. Maybe the overall effect on wages doesn’t amount to much. But if it’s something, isn’t that good? The taxman may bag a little less — or even a lot less — but why should American workers cry about that?

Over the last few decades, conservatives have done a good job of convincing many Americans that taxes just go down a rat hole and aren’t connected to the valued services government provides. (In states like Kansas and Louisiana, though, people are starting to see the relationship.) And for the moment, Republicans have stopped worrying about the budget deficits that they were so focused on during the Obama administration. Less revenue means bigger deficits, but, again, why should you care?

Because deficit phobia will be back someday. We are already looking at trillion-dollar deficits beginning in 2020, and that’s under the assumption that we aren’t in recession by then. (This economic cycle is already getting a little old; that’s why unemployment numbers are so low.) In any serious recession — and one always comes eventually — the deficit will top $2 trillion, which is much higher than the record Bush/Obama deficit of FY 2009.

There is only one pile of money big enough cover a shortfall like that: entitlements like Social Security and Medicare. (We could zero out the defense budget and still have a deficit.) When Republicans remember that they care about deficits, that’s where they’re going to look.

So American workers who cheer for the corporate tax cut are like Esau being grateful to Jacob for his porridge: In the long run, the tax cut they let the rich monopolize will cost them their birthright of Social Security and Medicare.

The Monday Morning Teaser

This week the separating-families-at-the-border issue blew up, with even Republicans trying to distance themselves from it. Hostage-taking has been part of the Republican toolbox at least since the debt-ceiling crisis of 2011, but it has never been done this nakedly before. Trump is terrorizing young children, and promises to keep doing it until his demands are met. He wants a wall, changes in immigration laws, and safe passage to a country of his choice. (OK, I made that last one up.)

More significant reports were issued this week than I was able to read. There was the NY attorney general’s lawsuit against the Trump Foundation, the Supreme Court’s OK of Ohio’s voter suppression plan, and the Justice Department Inspector General’s report on how the FBI handled the Clinton email investigation. I’ll have to rely on other people’s opinions on most of that.

Oh, and North Korea. Remember North Korea? That’s so last week, but people have been making up their minds about the outcome of the Trump/Kim summit. My opinion is that we’ll be lucky if it turns out to have been just a big photo op. A far worse outcome is that Trump makes a bad deal and then can’t admit it, so to protect his own ego he winds up covering for Kim’s misbehavior (in much the same way that he has been covering for Putin).

What I like to do with the Sift is mention and link to the important stories of the week, but also take a step back and look at the bigger picture. This week’s big-picture view de-wonkifies a Paul Krugman column that explains something important: There’s a reason why the big corporate tax cut passed in December is never going to trickle down to workers, and it has to do with the difference between an information economy and an industrial economy. We all sort of know that things are different now, but still a lot of our economic intuitions come from the age of Henry Ford and J. P. Morgan. That article “The corporate tax cut will never trickle down” should be out before 9 EDT.

Another long-view question I want to raise is whether Trumpism is turning into a religion. As the majority of evangelicals continue to support him (in defiance of just about everything Jesus ever said) and the anti-Trump minority begins to peel off, more and more people are starting to use religion as a metaphor for Trumpism. But what if it isn’t a metaphor? What if Trumpism is really, literally becoming a new American religion? I still haven’t decided whether that’s its own article or just a paragraph or two in the weekly summary.

There’s still a lot to do on the summary, so I’ll be lucky to get it out by noon.

Dividends on Putin’s Investment

For anyone who asks why Putin helped Trump get elected, take a look at this G-7 Summit.

Ben Rhodes

This week’s featured posts are “Who won the Masterpiece Cakeshop case?” and “Thoughts on Depression Sparked by Anthony Bourdain’s Suicide“. This morning, bad news broke on a voting rights case. I’ll have to cover that next week.

This week everybody was talking about summit meetings

For the G-7 meeting in Quebec, Trump arrived late and left early, skipping sessions on trivialities like climate change. After leaving, he tweeted a denunciation of the host, Canadian Prime Minister Justin Trudeau, and instructed the remaining US representatives not to sign the meeting-concluding joint communique that he had previously agreed to. (That is so Trump: For all his apparent bluster, he can’t handle face-to-face confrontation. He’ll leave and then tweet something nasty from the road.)

Trump described the US as “the piggy bank that everybody’s robbing”, and threatened to cut off trade with the other G-7 countries entirely:

It’s going to stop. Or we’ll stop trading with them. And that’s a very profitable answer, if we have to do it.

There is so much wrong with this. First, remember who we’re talking about here. These are our most trusted allies: Canada, Britain, Germany, France, Italy and Japan. If we want to solve any of our real trade problems (like getting China to respect our intellectual property), we’ll need them on our side.

And second, Trump continues to display a child’s understanding of international trade: If the US has a trade deficit with a country, he imagines that cutting off trade with them results in a “profit”, as if everything stays the same except that we now have back all the money we would have spent in the other country.

As economists will happily explain to you, this is pre-Adam-Smith economics, a long-debunked theory known as mercantilism. A more likely outcome than “profit” is that the world economy (and ours) simply shrink. Matt Ygelsias explains, using the example of oil:

According to [the theory espoused by Trump’s economic advisors], if the United States made it illegal to import oil, thus wiping $180 billion off the trade deficit, our GDP would rise by $180 billion. With labor constituting 44 percent of GDP, that would mean about $80 billion worth of higher wages for American workers. So why doesn’t Congress take this simple, easy step to boost growth and create jobs?

Well, because it’s ridiculous.

What would actually happen is that gasoline would become much more expensive, consumers would need to cut back spending on non-gasoline items, businesses would face a higher cost structure, and the overall economy would slow down with inflation-adjusted incomes falling.

Third, Trump has no power to cut off trade with other countries, and Congress isn’t going to give it to him. Foreign leaders know that he’s just blustering. To re-purpose a John Kelly insult: Empty barrels make the most noise.

John McCain tried to mitigate the damage:

To our allies: bipartisan majorities of Americans remain pro-free trade, pro-globalization & supportive of alliances based on 70 years of shared values. Americans stand with you, even if our president doesn’t.

And Paul Krugman said what we’re all thinking:

He didn’t put America first; Russia first would be a better description. And he didn’t demand drastic policy changes from our allies; he demanded that they stop doing bad things they aren’t doing. This wasn’t a tough stance on behalf of American interests, it was a declaration of ignorance and policy insanity.

… Was there any strategy behind Trump’s behavior? Well, it was pretty much exactly what he would have done if he really is Putin’s puppet: yelling at friendly nations about sins they aren’t committing won’t bring back American jobs, but it’s exactly what someone who does want to break up the Western alliance would like to see.

BTW: Trump’s proposal to let Putin back into the G-7 isn’t just servile, it makes no sense (as Krugman points out): The G-7 is an economic forum of democratic countries. Russia is an autocracy and its economy is tiny; it never belonged in this group. If the G-7 wants to expand, Brazil and India are much better candidates. And if nobody cares about democracy any more, China should be there.

In a different column, Krugman points out something important: The more Trump insults other democratic countries and acts like he has the whip hand over them, the less those countries’ leaders can offer him.

Real countries have real politics; they have pride; and their electorates really, really don’t like Trump. This means that even if their leaders might want to make concessions, their voters probably won’t allow it.

You can see this most clearly in Mexico: Trump is poison in Mexico. Any leader who refused to stand up to him would be committing political suicide.

Trump’s tough talk, then, is purely for the consumption of his base. If he were really trying to negotiate something that would help American workers, he’d “speak softly and carry a big stick” when he dealt with other democratic leaders.

Trump is also spreading joy and happiness in Germany, where his new ambassador has said that he wants to “empower other conservatives throughout Europe”. Diplomats typically do not visibly interfere in the politics of their host countries. The ambassador doubled down in the face of criticism: “I stand by my comments that we are experiencing an awakening from the silent majority – those who reject the elites & their bubble. Led by Trump.” In Germany, the “elites” include Angela Merkel and her government.

Trump is on to Singapore, where he is scheduled to meet with North Korean Supreme Leader Kim Jong Un tomorrow morning.

and immigrant children

Since May 7, the Trump administration has been routinely separating children from their parents when they arrive at our southern border. Vox has a good article describing what’s new about this and what isn’t. The big thing that’s new is that we’re not even trying to claim that we’re doing this for the children’s own good. The policy is purely punitive; it’s meant to discourage people from coming to America without a visa.

It’s worth pointing out that people who come here seeking asylum are not breaking the law if they present themselves at an official border crossing. Trump has characterized our asylum laws, which require some kind of due process for asylum seekers, as a “loophole”.

To me, it’s the government that seems to be taking advantage of loopholes.

and about cake

I cover the legal side of the Supreme Court’s Masterpiece Cakeshop decision in a featured post.

I wanted that article to have a tone that is opinionated, but not abrasive. But here I want to get more argumentative: I think the media as a whole, and liberals in particular, have been way too soft on special-rights-seeking people who claim to be motivated by Christianity. We’ve been way too willing to grant their claims that their actions have something to do with Jesus, and are motivated by sincere religious faith rather than simple bigotry.

I want to assert a few things:

  • Wedding cakes do not have, and have never had, religious significance in the Christian tradition. For the wedding at Cana, Jesus did not turn water into cake. Or into flowers or photographs or catering. It is ridiculous to treat cakes for same-sex wedding receptions as if they were communion wafers for a Satanic black mass. (Gorsuch really does invoke a comparison to “sacramental bread”.)
  • From the beginning of the Republic, civil marriage has been a separate institution from religious marriage. If your Christian religion says that people the state regards as married are not married in the eyes of God, you have the freedom to believe and proclaim that view. But you don’t get to decide whether or not they’re married in the eyes of the state, because that has nothing to do with Christianity or any other religion. And if a couple wants to hold a party to celebrate becoming married in the eyes of the state, that also has nothing to do with Christianity or any other religion.
  • In the Bible, marriage is not “between one man and one woman”. Often it’s between one man and several women. Example: Jacob and Leah and Rachel and their two handmaidens. If you don’t support that kind of marriage today, then you don’t believe in “Biblical” marriage. You also don’t believe that an unchanging institution of marriage was established by God once and forever. (Justice Kennedy quotes the baker: “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.” The baker should tell that to whoever wrote Genesis.)
  • Most of the self-described Christians who refuse to serve same-sex couples are not acting out of sincere religious conviction; they’re acting out of spite. Their side lost the same-sex marriage debate, they’re pissed about it, and they want to take it out on somebody. There is nothing Christ-like about this set of motives. The New Testament does not record any examples of Jesus being a sore loser.

and healthcare

If you’re an insurance company that doesn’t want to cover people with pre-existing conditions, the Trump administration has your back.

Led by Texas, twenty Republican-dominated states are participating in a lawsuit asserting that the individual mandate portion of the Affordable Care Act (i.e., ObamaCare) will become unconstitutional in 2019, when the tax penalty that enforces it goes away. (That was part of last year’s big tax cut bill.) That may sound harmless — who cares if the courts eliminate something that was unpopular to begin with and isn’t going to be enforced any more anyway? — but there’s a kicker: The suit claims that the whole ACA is inseparable from the individual mandate, so it all has to be struck down, including the popular parts like the guarantee of insurance to people with pre-existing conditions.

In other words: If you’re a cancer survivor (like my wife), or have something else in your medical history that makes you a bad risk, you may not be able to get health insurance at all, and if you do it will be exorbitantly expensive.

This suit has been considered a long shot, but its shot got a little less long Thursday when the Justice Department announced that it won’t defend the case in court. (Typically, the Justice Department defends the constitutionality of laws when they are challenged. But on rare occasions, an administration decides that a law is indefensible. That’s what’s happening here and what happened when the Obama Justice Department refused to defend the Defense of Marriage Act.) Democratic-controlled states like California are expected to step into the breech and lead the defense.

The brief filed by the Justice Department doesn’t agree with Texas that the whole ACA is unconstitutional, but it does agree that two other parts of the ACA are inseparable from the individual mandate and so have to be struck down: guaranteed issue (insurance companies that offer coverage in an area have to offer it to everybody) and community rating (which says that all individuals of the same age in the same community have to be offered the same rate). Those are exactly the parts that protect people with pre-existing conditions.

It’s worth pointing out the reason we’re in this situation: Back in 2012, the Supreme Court decided 5-4 that Congress did not have the power under the Commerce Clause of the Constitution to require individuals to buy health insurance. This would have sunk the ACA then and there, but Justice Roberts reinterpreted the individual mandate as a tax. That allowed him to flip and vote for the constitutionality of the ACA, which survived 5-4.

But here’s the interesting part: The idea that an individual mandate exceeded the range of the Commerce Clause was invented from whole cloth to create a pretext for striking down the ACA. Until it became part of the ACA, the mandate — which was originally the brainchild of the conservative Heritage Foundation in the 1990s — had never been considered constitutionally questionable.

So one conservative long-shot legal argument leads to another, and the upshot is that millions of Americans may lose their health insurance.

and leaks

The LA Times reports:

The former security director for the Senate Intelligence Committee was arrested Thursday on charges of lying to federal investigators probing a leak of information involving a former campaign aide to President Trump.

In the course of the investigation, the government seized several years worth of emails belonging to the staffer’s girlfriend, who is a New York Times reporter. The case is making journalists nervous about how far the government is now willing to go to track down leaks.

and the NFL

Last Monday, the Super Bowl champion Philadelphia Eagles were disinvited from the White House visit scheduled for the next day, because not enough of them were going to show up to suit Trump. Instead he held a patriotic rally that seems to have been attended mainly by White House staffers and interns. During the ceremony, Trump appeared not to know the words to “God Bless America”.

Trump has decided that portraying black football players as unpatriotic is a winning issue for him, so he’s going to keep doing it. This has got to be a disappointment to the NFL owners, who changed their policy specifically to try to mollify the President. Under the new rules, players can stay in the locker room during the national anthem if they want, but if they come onto the field they have to stand at attention. Kneeling — no matter how silently and respectfully it is done — will result in a fine for the team, which may decide to pass that fine on to the player.

But Trump is not having that. “No escaping to locker rooms” he tweeted. Previously he had said:

You have to stand proudly for the national anthem. Or you shouldn’t be playing, you shouldn’t be there. Maybe you shouldn’t be in the country.

and you also might be interested in …

Anybody who decided that it didn’t matter whether Trump or Clinton won the presidency should take a look at the EPA. The headlines are all about Scott Pruitt’s flagrant corruption, but the real damage is deeper. Thursday, the NYT described a change in how the EPA will evaluate possibly toxic or carcinogenic chemicals:

the E.P.A. has in most cases decided to exclude from its calculations any potential exposure caused by the substances’ presence in the air, the ground or water, according to more than 1,500 pages of documents released last week by the agency.

Instead, the agency will focus on possible harm caused by direct contact with a chemical in the workplace or elsewhere. The approach means that the improper disposal of chemicals — leading to the contamination of drinking water, for instance — will often not be a factor in deciding whether to restrict or ban them.

The big winner here is the chemical industry. The big losers are anybody who breathes air or drinks water and was hoping not to get cancer.

Here’s an unforgettable exchange from Wednesday’s Anderson Cooper 360:

Former Fox News military analyst Lt. Colonel Ralph Peters (retired): As a former military officer of the United States, I took an oath to support and defend the Constitution of the United States. And I saw, in my view, Fox — particularly their prime time hosts — attacking our constitutional order, the rule of law, the Justice Department, the FBI, Robert Mueller, and (oh, by the way) the intelligence agencies. And they’re doing it for ratings and profit, and they’re doing it knowingly — in my view, doing a grave, grave disservice to our country.

Anderson Cooper: Do you think, some of the hosts in prime time, do they believe the stuff they’re saying about the Deep State, what they’re saying about the Department of Justice, about the FBI?

Lt. Colonel Peters: I suspect Sean Hannity really believes it. The others are smarter. They know what they’re doing.

When somebody from the White House says some awful thing, it’s hard to know whether to take the bait. If we ignore it, we normalize it. (“Oh yeah, public officials say shit like that. It’s no big deal.”) If we pay attention, we’ve let ourselves be distracted from the ongoing destruction of the environment, the decay of the rule of law, the plight of the Puerto Ricans, the alienation of America’s allies, the mistreatment of families who come here looking for asylum under our laws, the opening of a misguided trade war, and lots of other more immediately consequential stuff.

But OK, Rudy Giuliani, I’m taking the bait this time.

In Israel, Giuliani went on to criticize Daniels’ credibility and allegation she had an affair with Trump because she is a porn star. “Look at his three wives. Beautiful women. Classy women. Women of great substance. Stormy Daniels?” Giuliani said while shaking his head. “I’m sorry I don’t respect a porn star the way I respect a career woman or a woman of substance or a woman who has great respect for herself as a woman and as a person and isn’t going to sell her body for sexual exploitation.” …

On Thursday, Giuliani was asked to explain his comments. “So the point I made about her industry is, it’s an industry in which you sell looks at your body for money. That’s demeaning to women, the way I was brought up and the way I always believed the feminist movement has,” Giuliani said.

During the campaign, I objected to Trump critics trying to make an issue of Melania’s nude photos, because they’re irrelevant to how America is governed and “because I believe all of us have the right to display or not display our bodies as we see fit”. But if the president’s lawyer is going to claim there’s some difference-of-kind between Melania and Stormy Daniels because Daniels sells looks at her body for money, I have to call him on it. (And point out that Trump himself has appeared in three porn films, though he was clothed at the time.)

And as for who is credible, based on their previous actions, let me point out a few things Stormy Daniels hasn’t done:

  1. created a fake university that defrauded its students;
  2. molested more than a dozen women;
  3. laundered money for Russian oligarchs;
  4. lied to the American people several times each day.

So if it comes down Trump’s word against a porn star’s, I’ll believe the porn star.

and let’s close with something fun

“Happy as a dog in a ball crawl” needs to become a standard English phrase.

Thoughts on Depression Sparked by Anthony Bourdain’s Suicide

I imagine a lot of people have fantasized about being Anthony Bourdain, the star of CNN’s Peabody-winning “Parts Unknown” series, in which he traveled the world eating exotic food and meeting the people who made it. That was probably the most enviable job on television.

Friday, CNN announced that he had committed suicide. He was 61, my age. So I’m having a Richard Cory moment.

Bourdain’s suicide, coming so soon after that of fashion designer Kate Spade, has sparked a lot of discussion about depression. (I’m not sure we really know that either was depressed at the time, but it’s a plausible assumption.) Here’s my contribution to that conversation.

No one close to me has committed suicide, but I have watched both parents and at least one close friend deal with depression. I’ve also skirted the borderlands of depression myself on occasion. In my view, the most insidious thing about it is that it first attacks the faculties that you will need to fight it off. (That’s why all the “snap out of it” advice never works. The command center that could have received and acted on that message has already fallen.) You may not even notice what’s happening until the depression has you encircled.

That’s why I think everyone needs to set alarms at the border, so that you notice the slide while you still have the resources to turn things around. In my case, I’ve flagged two thought patterns. Whenever either of them shows up, I’m in danger and need to implement high standards of mental hygiene:

  • I can’t lean on my friends because they aren’t really my friends. Secretly, it would give them satisfaction to know that I’m doing badly.
  • I can still imagine things that would make me happy, but feel like they’re not worth the bother. Whether or not I enjoy my life is really not that important.

Those are mine; you may have other typical borderland thoughts. Try to identify them and notice when they start showing up.

So what are “high standards of mental hygiene”? Obvious stuff, mostly: Eat right, sleep well, get exercise, drop unrewarding responsibilities that cause unnecessary stress, indulge any creativity or playfulness you happen to notice in yourself (even if it seems silly), spend time with people who love you (and trust that they really do), expose yourself to whatever kind of beauty moves you. If you know any children who aren’t your responsibility, they tend to make good companions: They are naturally playful, and it’s hard to believe that they are devious enough to fake caring about you.

None of that cures a depression after you’re in it. But if you’re not quite there yet, maybe you don’t have to go.

Who won the Masterpiece Cakeshop case?

Technically, the Supreme Court ruled in favor of the baker. But it didn’t endorse any of the larger points he raised. What, if anything, does this mean for future cases?

The Masterpiece Cakeshop case is the legal equivalent of the movie Solo: Touted as a blockbuster in the series of landmark cases that includes Obergfell and Hobby Lobby, it turned out to be a dud.

You’ve probably already heard the basics of the case: In 2012, before same-sex marriage was legal in their state, Charlie Craig and David Mullins were planning to get married in Massachusetts, and then have a wedding reception back home in Colorado. They went to Masterpiece Cakeshop to order a custom-designed wedding cake, but the owner, Jack Phillips, refused to discuss it with them. Attributing his position to his Christian faith, he said he couldn’t be involved in celebrating a same-sex marriage. Craig and Mullins sued under Colorado’s anti-discrimination law, and they won at every level. So Phillips appealed to the Supreme Court.

What everybody expected. The case was supposed to be a 5-4 decision, as all nearly all the same-sex marriage decisions have been. Four conservatives (Thomas, Alito, Roberts, and Gorsuch) would line up with Phillips and four liberals (Ginsberg, Sotomayor, Breyer, and Kagan) with Craig and Mullins, with Justice Kennedy casting the deciding vote, as he usually does.

Nobody was too sure what he would do. He has authored (badly, in my opinion) most of the landmark gay-rights decisions of recent years, but (as part of the 5-4 majority in Hobby Lobby) he also was also known to be sympathetic to the kinds of religious-liberty arguments Phillips was making.

However this case came out, though, we were all sure it would have sweeping consequences: Either the Court would affirm that gays and lesbians have to be treated like everyone else, or it would establish “sincere religious belief” as a permanent loophole in our discrimination laws. [1]That’s not what happened.

Instead, the Court decided 7-2 that the Colorado Civil Rights Commission hadn’t handled this particular case with proper respect for Phillips’ religious views, and so the Court threw out the decision against him. Essentially, we’re back to Square One: It’s as if Craig and Mullins had never filed their complaint.

Here’s how limited the decision is: If tomorrow another same-sex couple goes to Masterpiece Cakeshop asking for a wedding cake and Phillips turns them down, nobody knows what will happen next.

This is how that 7-2 breaks down:

Thomas. Justice Thomas went whole-heartedly for the baker’s argument: Phillips is an artist, and the government cannot command him to create a message he finds abhorrent. Quoting previous free-speech cases, he says:

Forcing Phillips to make custom wedding cakes for same-sex marriages re­quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],” or to “affir[m] . . . a belief with which [he] disagrees.”

Gorsuch and Alito. Justices Gorsuch and Alito (with Gorsuch writing for both of them) believe that the Colorado Civil Rights Commission has itself discriminated against Phillips because of its hostility to his religious views. They see Phillips’ case as being equivalent to that of William Jack, who intentionally tried to create such a comparison.

[Jack] approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds. All three bakers refused Mr. Jack’s request, stating that they found his request offensive to their secular convictions. But the Division declined to find a violation, reasoning that the bakers didn’t deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions.

… The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).

… Only one way forward now remains. Having failed to afford Mr. Phillips’s religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack’s case.

So that’s three votes for the baker’s case on the merits. Two more votes and Phillips would get the kind of result he (and the Alliance for Defending Freedom, the Christian-religious-liberty organization arguing his case) had been hoping for: At least in Colorado, bakeries (and presumably florists and caterers and all kinds of other businesses) would be free to deny their services to same-sex couples.

Kagan and Breyer. But you may have noticed a problem in the Gorsuch-Alito reasoning. How could they say Phillips “would not sell the requested cakes to anyone”, when he happily makes wedding cakes for opposite-sex couples? That’s because in their reasoning, a gay wedding cake is a thing. Phillips also wouldn’t sell a “cake celebrating same-sex marriage” to Craig’s mother, who is straight, so he’s not just refusing to sell to gays.

Justices Kagan and Breyer (Kagan writing) found this ridiculous. There is no such thing as a gay wedding cake. The product is just a wedding cake, and the fact that the cake will find its way to either a same-sex or opposite-sex wedding reception does not make it a different product.

And that’s the difference between the Phillips case and the Jack case: The anti-gay message in the Jack case was on the cake. (One cake would have said “God hates sin. Psalm 45:7” on one side and “Homosexuality is a detestable sin. Leviticus 18:2” on the other. Another Jack cake would have put a red X over an image of two groomsmen holding hands.) In the Phillips case the only problem was in the use of the cake and who was using it. Phillips might legally have refused to put overt pro-gay symbols or messages on the cake (say, a rainbow flag). But refusing to make any wedding cake, even one identical to one he would make for an opposite-sex couple, was discrimination.

However, Kagan and Breyer found that the Civil Rights Commission didn’t make that argument properly, and instead some of the commissioners made statements hostile to Phillips religion. This created the impression that the commissioners were responding to their personal beliefs rather than legal principles: They found Jack’s message offensive, but not the Craig-Mullin wedding cake. In short: The CRC could have justified the findings it made, but it didn’t, so its decision in this particular case should be thrown out.

Ginsberg and Sotomayor. Justices Ginsberg and Sotomayor (Ginsberg writing) spelled out in more detail the difference between the Jack and Phillips cases:

Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display.

Ginsberg and Sotomayor scoff at Gorsuch’s notion that the product was a “cake celebrating same-sex marriage”.

When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied.

The merits of the case matter more than any procedural errors the Commission may have made.

I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.

The Colorado Court of Appeals, Ginsberg notes, “considered the case de novo“. (In other words: It started over, and considered the case on its merits rather than on the basis of what the Commission had done.)

What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say.

In a footnote, Ginsberg-Sotomayor also tear up Thomas’ free-speech argument: A message may be in Phillips’ mind, but it isn’t in the cake unless other people can see it there.

The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s.

It comes down to Kennedy and Roberts. So three justices agree with the baker on the merits and four don’t. But two of the four also find procedural problems in the rulings against the baker. So it’s already clear that the baker will win the case: The judgment against him will be thrown out. The question for the remaining two justices — Kennedy and Roberts — to decide is whether the Court will create a precedent that similar cases can appeal to.

Roberts’ thinking is usually subtle and often hidden. He will, at times, rule in a way that technically upholds a precedent, while re-interpreting it in a way that will ultimately undo it in subsequent cases. (In a current case that I’ll discuss in the weekly summary, his decision upholding the constitutionality of the Affordable Care Act in 2012 is now the basis for a new case claiming it is unconstitutional. He does that kind of thing.)

Roberts is happiest when he is changing society in a conservative, pro-wealth, or pro-business direction, but doing it behind the scenes. He doesn’t want the Court to make the kind of waves that could result in a major political backlash. (So, for example, he will write a decision that celebrates the principles behind the Voting Rights Act, while gutting the provisions that enforce it.)

This case is not Roberts’ style. He doesn’t want to author a sweeping takedown of anti-discrimination laws, and Kennedy isn’t going to go for that anyway. Also, he knows that the wind is blowing against him here. More and more, society accepts gay rights. The kind of sweeping decision Thomas, Gorsuch, and Alito want won’t look good in five or ten years.

So on this case he will keep his powder dry, uphold his (mostly false) image as a moderate, and go with what Kennedy wants.

Kennedy wants this case to go away. The decisions leading up to the full legalization of same-sex marriage (in Obergfell) are his legacy. When he eventually dies, that’s what his obituary will be about. He doesn’t want that record tarnished, least of all by his own decision.

But Kennedy is an empathy-based judge rather than a principles-based judge. [2] In this case, he seems to empathize with both sides: Craig and Mullin just wanted to have the same kind of wedding reception anybody else might have. Phillips didn’t want to be forced to act against what he saw as his religious convictions.

So the deciding Kennedy-Roberts opinion lets the baker off the hook on the narrowest possible grounds, without giving future courts anything to work with in similar cases.

When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

So the baker wins. But Kennedy leaves the larger issues open.

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. [3]

I find myself sharing the concern Sarah Posner expressed in The Nation: “how assiduously Justice Kennedy labored to find government ‘hostility’ to Phillips’s religion”. If a judge searches the record hard enough, with hyper-sensitivity to a hostility that he has pre-decided must be there, won’t he always be able to find some evidence of anti-religious bias somewhere?

What will be the evidence of such supposed animus in the next case? A question from a judge at oral arguments? Deposition questions by government attorneys? That is the crucial open question from Masterpiece—not whether the next case will be more winnable for a gay couple without Masterpiece’s specific facts, but how hard opponents of LGBTQ rights will work to convince the courts that similar specific facts exist in that case, too.

What next? Neither side can take comfort in the numbers. Seven justices looks like a solid majority for the conservative side, but four of the seven are only citing procedural reasons for objecting to the Commission’s ruling, and not saying they should have ruled in the baker’s favor.

Similarly, six justices reaffirm that anti-discrimination laws can apply to gay couples, whose “dignity and worth” is not inferior to opposite-sex couples. But Roberts cannot be trusted. If he could have formed a conservative majority on the other side, he quite likely would have.

So here’s where I think we are: Roberts is stalling, with the hope of getting another conservative appointment out of Trump before the Court has to make a definitive ruling. If he gets that extra conservative justice, then the Court will rule decisively to gut anti-discrimination protections for gays and lesbians, using “sincere religious belief” as the loophole.

In the meantime, look for a series of cases like this one, decided on the narrowest possible terms, and usually in favor of the conservative side.

[1] Phillips’ defenders argue that discrimination against gays is special in some way, but it’s hard to see how. When inter-racial marriage was controversial, the arguments against it were also framed in religious terms. Slavery, segregation, discrimination against women — pretty much every kind of bigotry roots itself in religion when other supports start to fail. If “sincere religious belief” allows discrimination against Craig and Mullins, it’s hard to see how any discrimination law stands up.

BTW: Notice what I didn’t say there. I didn’t say that Christianity or any other religion is inherently bigoted. I’m saying that bigots will cloak themselves in religion, and will cherry-pick sacred texts to justify their bigotry. If courts let them get away with this dodge, anti-discrimination laws will be toothless.

[2] That is what has driven me nuts in his previous rulings. He consistently fails to enunciate principles that lower-court judges can apply, instead making what are essentially political arguments that one side or the other deserves to prevail. That is why same-sex marriage cases kept going to the Supreme Court. Kennedy’s opinions were murky, and lower-court judges disagreed about what they meant. Eventually each new case had to come back to Kennedy so that he could interpret himself.

[3] This kind of writing also drives social conservatives nuts. “Our society has come to the recognition …” What kind of legal principle is that?

Kennedy consistently acts the part of the stereotypic liberal-activist-judge who projects his own moral convictions onto the law. Ginsberg is much more liberal than Kennedy, but you’ll never find that kind of mushiness in her opinions. She defines terms, cites precedents, and enunciates principles that lower-court judges can apply with confidence.

The Monday Morning Teaser

Another week, another month’s worth of news.

Trump is in Singapore, awaiting his meeting with Kim Jong Un. He just left the G-7 summit in Quebec with all our allies mad at us and a trade war brewing, so mission accomplished there. (It takes real talent to piss off the Canadians; most politicians couldn’t manage it.) The main debate about his G-7 performance is whether he’s destroying the alliance of western democracies intentionally or through incompetence. Presumably, this week he will find the company of an absolute dictator more congenial.

But domestic news doesn’t slow down just because the President is making foreign mischief. The Justice Department has just signed onto a case that would declare the pre-existing-condition parts of ObamaCare unconstitutional. We’re running out of space to store all the immigrant children we’re taking away from their parents. A leak case against a Senate committee staffer is invading the workspace of a NYT reporter in new ways, setting up some First Amendment issues. The Supreme Court issued a murky ruling on the case of the anti-gay baker. The EPA gave a major win to the makers of toxic chemicals.

Plus, there’s stuff that stirs up public debate and discussion, even if it doesn’t have major policy consequences. Trump insulted and lied about the Super Bowl champion Philadelphia Eagles. Anthony Bourdain, the guy who arguably had the best job on TV, committed suicide. Rudy Giuliani slut-shamed Stormy Daniels.

So here’s how I’m going to handle this week: The featured post will take apart the Supreme Court’s Masterpiece Cakeshop decision, and what the divergent opinions mean for future cases. That should be out by 10 EDT.

The rest of it I’ll discuss in the weekly summary. I’ll try to get that out by noon.

We Have to Believe

I want to be very clear about one thing: Americans remain our partners, friends, and allies. This is not about the American people. We have to believe that at some point their common sense will prevail. But we see no sign of that in this action today by the U.S. administration.

Canadian Prime Minister Justin Trudeau

This week’s featured post is “What is impeachment for?

This week brought back everything that last week seemed to stop

A week ago, the North Korea summit was off and the trade war was “on hold”. Now they’re both back.

The summit is scheduled for a week from tomorrow in Singapore. Until Trump and Kim actually appear, though, who can say whether it will really happen? Originally, Trump implied that the meeting would signal North Korea’s complete denuclearization, for which he should win a Nobel Peace Prize. Now it’s just supposed to “start a process“.

Back in March, Trump announced tariffs on imported steel and aluminum. Then he appeared to back down, temporarily exempting Canada, Mexico, and the European Union. The time limit on that exemption ran out Thursday without Trump getting the concessions he wanted, so the tariffs are back on.

The affected countries are retaliating. Canada seems particularly offended by the pretext for the tariffs: Trump is exercising powers the president has under a national security provision. Essentially he is saying that Canada can’t be trusted to continue selling us metals we need for our defense industries.

Tariffs on Chinese goods were announced Tuesday, to take effect “shortly after” the complete list of goods affected is released on June 15. China also plans to retaliate.

For a guy whose book is called The Art of the Deal, Trump’s negotiating style seems particularly artless: He makes threats and demands concessions. If other countries don’t yield to his demands, he seems to have no Plan B.

and everyone was talking about jobs

The economy added 223K jobs in May. That number was fairly typical of job growth over the last five years, but the accumulation of good job creation over a long period has pushed the unemployment rate down to 3.8%, a number not seen since the end of the Clinton administration, and only briefly then.

and new claims of presidential power

A letter that Trump’s lawyers wrote to Bob Mueller in January got leaked this week. The point of the letter is to argue against Mueller’s need to interview Trump, and along the way it makes an amazing claim: Obstruction of justice laws simply don’t apply to the president, because since he is the highest law-enforcement official “that would amount to obstructing himself”. The President has complete authority to terminate investigations as he sees fit, and to pardon anybody he wants for any reason. The letter recognizes no exception for a president with corrupt intent.

Matt Yglesias draws an obvious conclusion:

Consider that if the memo is correct, there would be nothing wrong with Trump setting up a booth somewhere in Washington, DC, where wealthy individuals could hand checks to him, and in exchange, he would make whatever federal legal trouble they are in go away. You could call it “The Trump Hotel” and maybe bundle a room to stay in along with the legal impunity.

Trump (and his lawyer Rudy Guiliani) is also claiming that he could pardon himself. Strange that Nixon never thought of that.

and Roseanne

Roseanne Barr managed to get her hit sitcom revival Roseanne cancelled by ABC by tweeting a racist insult at former Obama advisor Valerie Jarrett.

Barr’s defenders are using one of the standard conservative tactics: stripping away the context of the insult, making a simplistic comparison to things liberals have said, and then claiming a double standard. (How is claiming Jarrett is the child of apes different from, say, Bill Mahr suggesting Donald Trump was fathered by an orangutan?) As always, they are the victims.

Let me go back to the analysis I wrote in 2015: “Slurs, Who Can Say Them, When, and Why“. (This isn’t the Sift’s most-viewed post because it never had a viral moment, but it is the most consistently popular. After three years, it still reliably gets a few hundred hits every week.) Then I was talking about words like nigger and honky, but the same ideas apply to images and metaphors, like comparing people to apes.

If you just look them up in a dictionary you might think they are equivalent: honky is a racial slur directed at whites, nigger at blacks. What’s the difference?


Nigger has centuries of usage behind it, and the connotation of that usage is that blacks are a subhuman race. Nigger evokes a detailed stereotype — lazy, stupid, violent, lustful, dangerous — while honky just says you’re a white guy I don’t like. For centuries, niggers weren’t really people. There’s no equivalent word for whites, because whites have always been seen as people.

Whenever you use a word or an image or a metaphor, you’re not just applying a dictionary meaning. You’re invoking the whole history of the usage. For centuries, whites have compared blacks to apes — sometimes literally claiming they are not a fully human species — in order to portray them as a race of unintelligent subhumans. Barr’s tweet evokes this history.

There is no comparable usage-history dehumanizing Trump’s ancestors (Germans) by comparing them to orangutans, and Maher was not plugging into anything of that sort. Instead, he’s applying a more general and much less toxic physical-resemblance-to-animals usage-history, such as when Mitch McConnell is compared to a turtle.

Given the history of black dehumanization, comparing blacks to animals is always tricky, but it can be done. For example, this cartoon of Obama dressed as a Russian bear does not strike me as racist, because bears are not typical dehumanizing symbols. But this photo-shopped image of Barack and Michelle as apes clearly is.

Trump couldn’t leave this controversy alone, but he also couldn’t condemn Barr’s racism, since she and her racism are typical of an important segment of his base. So he portrayed himself and his daughter as the real victims.

About the Samantha Bee/Ivanka Trump thing: A key point in my “Slurs” analysis is that slurs-that-can-be-turned-around-on-the-slurrer are a completely different category than slurs-that-only-go-one-way.

The various disadvantaged communities are all debating whether or not it’s ever OK to use the slurs themselves. Some argue that when black rappers use nigger, they jam the stereotype rather than perpetuate it. Some women believe that saying bitch is liberating, because it shows the word doesn’t scare them. Others disagree, believing that any use of a slur promotes its stereotypes.

I think this: Those issues are for those communities to figure out. In the unlikely event that they ask my advice, I might give it. But until then, my opinion as a white guy doesn’t and shouldn’t matter.

Samanthan Bee calling Ivanka Trump a “feckless cunt” falls into this same category. Overwhelmingly, women who have commented on Bee’s use of cunt have condemned it, which is their right. But men like me and Donald Trump should stay out of that discussion. The propriety of a woman saying cunt is not for us to decide.

but now we have a clearer notion of what Hurricane Maria did to Puerto Rico

According to a study in the current New England Journal of Medicine, Hurricane Maria resulted in about 4600 “excess deaths” in Puerto Rico between landfall (September 20) and December 31. That number includes not just people killed immediately in the storm, but also deaths due to “delays or interruptions in health care” caused by the storm and its subsequent island-wide power failure. It’s also a statistical estimate, not a list of specific deaths. The official death toll is 64, a number which has been criticized by many sources.

Puerto Rican writer and podcast-host Julio Ricardo Varela wasn’t surprised.

We knew. … When funeral directors started telling people that they were burying way more bodies than usual, or when our family members told us about their neighbors dying in still-darkened rooms, or being buried outside their homes, we knew that the official death toll was much higher than the 64 people the government had eventually admitted to. When we heard the stories of people having no refrigeration for their insulin, that dialysis machines weren’t operational or that hospitals were still in the dark but had people on life support, we knew that it wasn’t some small counting error.

This estimate of Maria’s death toll on Puerto Rico is higher than the reported death tolls of 9/11 (2996) and Hurricane Katrina (1833), but it’s not clear to me this is an apples-to-apples comparison. Both of those numbers also might rise in an excess-deaths analysis.

But that’s quibbling: Thousands of American citizens died, many of them because of a slow and inadequate response. Aid was stuck at the port in San Juan, a Navy hospital ship was substantially underused, and about a third of the island’s residents still had no electric power four months after the storm.

And yet, this has not become a scandal or prompted a national soul-searching like Katrina and 9/11 did. There is no blue-ribbon panel preparing a what-went-wrong report. Heads have not rolled in the agencies that bungled the response.

Is there any doubt why this is? Puerto Ricans are Spanish-speaking brown people, not “real Americans” like the Texans affected by Hurricane Harvey and Floridians hit by Hurricane Irma.

There’s a lot of blame to spread around here, from Puerto Rico’s pre-hurricane infrastructure to the local Puerto Rican officials to the federal government. But a big piece of it has to come back to Trump’s inability to admit failure or fix mistakes. At a time when the full scope of the problem was starting to become clear, Trump could only congratulate himself on the low reported death numbers. When criticism began, he was the victim, not the lazy Puerto Ricans who “want everything done for them”.

The Mayor of San Juan, who was very complimentary only a few days ago, has now been told by the Democrats that you must be nasty to Trump. Such poor leadership ability by the Mayor of San Juan, and others in Puerto Rico, who are not able to get their workers to help. They want everything to be done for them when it should be a community effort. 10,000 Federal workers now on Island doing a fantastic job.

During the Obama administration, conservatives proclaimed a series of events to be “Obama’s Katrina“. Well, Trump has presided over a natural-disaster screw-up that is arguably worse than Katrina, and no one seems to care.

and you also might be interested in …

A very good Washington Post article about sexual abuse in evangelical churches centers on Rachael Denhollander, who was abused as a child in her church and then became one of the young gymnasts assaulted by Larry Nassar.

Today, Denhollander can see how her church, which has since shut down, failed to protect her. But as a child, all she knew from her parents was that her abuse had made their church mad and that she wasn’t able to play with some of her friends. She blamed herself — and resolved that, if anyone else ever abused her, she wouldn’t mention it.

And so when Larry Nassar used his prestige as a doctor for the USA Gymnastics program to sexually assault Denhollander, she held to her vow. She wouldn’t put her family through something like that again. Her church had made it clear: No one believes victims.

The Catholic Church’s sexual-abuse problems have gotten a lot of attention, but similar forces are at work in evangelical churches:

When congregants believe that their church is the greatest good, they lack the framework to accept that something as awful as sexual abuse could occur within its walls; it is, in the words of Diane Langberg, a psychologist with 35 years of experience working with clergy members and trauma survivors, a “disruption.” In moments of crisis, Christians are forced to reconcile a cognitive dissonance: How can the church — often called “the hope of the world” in evangelical circles — also be an incubator for such evil?

Some good news on prospects for the climate: NetPower is building a small (50 MW) plant in Texas to prove that its revolutionary technology works. The plant will run on natural gas, but emit no air pollution and no waste heat. Carbon capture isn’t an expensive separate unit bolted onto the end of the process; it’s a normal part of the combustion cycle. The plant has achieved first fire, and should be generating power later this year.

Vox’ environmental writer David Roberts is impressed.

So: more efficient power, with zero air pollution, virtually no water consumption, and pipeline-ready carbon dioxide capture built in … for cheaper than today’s best fossil fuel power plants. Quite a bold promise.

It works in an unusual way, which Roberts explains in more detail (and links to even more technical explanations): Natural gas is burned with pure oxygen, and the turbine is driven by supercritical carbon dioxide rather than steam. There’s a pipe and the end of the cycle producing excess CO2, which can be sold or sequestered.

Theoretically, the process also would work with coal.

Roberts points out that “Combustion is only one part of the damage done by fossil fuels.”

But it’s best not to be shortsighted here. Even under the most optimistic scenarios, there are going to be hundreds of fossil fuel power plants built across the world in coming years. This is especially true of natural gas plants, which play an important role in “firming” the fluctuations in variable renewable energy (and could potentially be run in the future on renewable biogas).

If we could start right now making all those new coal and natural gas plants air-pollution-free, it would be a public health win of historic proportions, to say nothing of the regulatory and civic battles that could be avoided.

And capturing all that carbon rather than throwing it into the atmosphere might be enough to give the fight against climate change some much-needed breathing room.

While we’re talking about fossil fuels … a longtime Republican talking point has been that the government shouldn’t be picking winners and losers, so it shouldn’t subsidize renewable fuels over fossil fuels. I have argued against this (because it makes sense for the government to use taxes and subsidies to balance hidden fossil-fuel costs that the market externalizes, like the cost of cleaning up after hurricanes), but at least it’s a coherent point of view.

But Friday Bloomberg broke the story that Trump is planning to pick winners and losers … and the winners are coal and nuclear.

The Trump administration has been preparing to invoke emergency powers granted under Cold War-era legislation to order regional grid operators to buy electricity from ailing coal and nuclear power plants.

Think about that: Trump insists on wrecking the environment by burning coal, even if the market is against it.

If he genuinely believed the free-market principles he has been promoting for his entire career, Paul Ryan would be moving to stop this. But I’m not holding my breath.

Every congressional district is different. Here’s how a Democrat tries to appeal to farmers as he runs against Iowa Republican Steve King, one of the most unabashed racists in Congress.

Elsewhere, the Southern Poverty Law Center says that eight explicitly white-supremacist and/or anti-Semitic candidates are running for office this year, including one (Arthur Jones) who has already gotten the Republican nomination for Congress in Illinois. (He’s running in a Democratic district that mainstream Republicans didn’t contest. The state GOP has denounced him.) MSNBC’s Morgan Radford (who is part black and part Jewish) went to Illinois to interview Jones and to California to interview Senate candidate Patrick Little, who is running against Diane Feinstein on the slogan “End Jewish Supremacy“. (His primary is tomorrow.)

Illinois voted to ratify the Equal Rights Amendment to the Constitution, which was approved by Congress in 1972. The deadline for ratification passed 36 years ago, but there’s some dispute about whether that matters. If it doesn’t, the ERA only needs to be ratified by one more state.

Congress and the Trump administration have been undoing the restrictions on financial companies that were put in place after the collapse of 2008. After the collapse, all the major banks were relying on federal dollars to stay solvent, so the government had enormous leverage, if it chose to use it. There were three basic theories of what to do:

  • The technocratic approach (favored by establishment Democrats and embodied in Dodd-Frank), in which the structure of the banking system remained fundamentally the same, but regulators got better information and more power to stop banks from doing foolish things.
  • The progressive approach, in which too-big-to-fail banks would get broken up into pieces too small to sink the system, and FDIC-insured banking would once again be walled off from riskier investment banking with a 21st-century Glass-Steagall Act.
  • The Republican approach, which would get federal institutions (like Fannie Mae) out of the mortgage business, and instill discipline in the market by making future bank bailouts almost impossible.

Now we’re seeing the weakness of the technocratic approach: The public doesn’t really understand the technical rules Dodd-Frank established, so undoing them doesn’t set off alarm bells with the electorate.

Trump campaigned on some progressive banking proposals like Glass-Steagall, but once in office he has given the big banks whatever they want.

He has, instead, simply appointed industry insider figures to all the key positions and has them steadily working to twist every dial available in a more industry-friendly direction.

And the nature of bank regulation is that even when it’s done really, really poorly, the odds are overwhelming that on any given day, nothing bad is going to happen. As long as the economy is growing and asset prices are generally rising, a poorly supervised banking sector is just as good as a well-supervised one.

But when the music stops, and it always does, a poorly supervised banking sector can turn into a huge disaster. It’s only a question of when.

Everybody knows that old people are conservative, but now there’s a new explanation why: Poor people tend to be liberal, and they die before they get old.

mortality among the poor increases during middle age — which is when citizens generally get more involved in politics. The premature disappearance of the poor, then, occurs precisely at the moment when they would be expected to reach their “participatory peak” in society. But they don’t live long enough to achieve that milestone.

and let’s close with something

A town in Norway celebrates summer solstice each year by making a huge bonfire. The one it built last year holds the record for being the tallest bonfire ever.

What is impeachment for?

During Obama’s presidency, Republican standards for impeachment were low and Democratic standards high. Now it’s the reverse. We need American standards that don’t change with the political winds.

Someday — maybe sooner, maybe later — Bob Mueller is going to issue his report on the Trump campaign’s relationship with Russia, whether Trump has been attempting to obstruct justice, and possibly other Trump-related scandals. When that happens, Congress and the American people will have to look at what has been found and decide what to do about it. Is it enough for an impeachment or not?

At that moment, partisans on both sides will adjust their standards to get the conclusion they want. Trumpists will put forward impossibly high standards for impeachment, and anti-Trumpists will drop their standards to match the facts available. Not admiring either of these approaches, I want to set out my general ideas about impeachment now, before we know what the evidence will say.

Previous impeachments. As background, let me start by confessing that I’m old enough to have watched two presidential impeachment processes: Nixon’s and Clinton’s. The two could not have been more different.

At the time of the Nixon impeachment hearings, the United States hadn’t impeached a president in a century. Leaders of both parties in Congress appreciated that they were wielding a fearful and awesome power. They felt the Eye of History watching them. So, while Democrats were in general the prosecutors and Republicans the defenders, both approached their roles with extreme scrupulousness. Both sides were determined to get to the truth of the matter rather than just to win.

The iconic question “What did the President know and when did he know it?” was asked by Republican Senator Howard Baker. The House Judiciary Committee’s decision to subpoena Nixon’s tapes of Oval Office conversations was overwhelmingly bipartisan (33-3). Of the five articles of impeachment considered by the committee, three were supported by some Republicans and three were opposed by some Democrats. In the end, Nixon resigned after a delegation of Republican leaders went to the White House to tell the President that they could no longer defend him.

By contrast, the Clinton impeachment was an entirely partisan exercise from beginning to end. Nixon’s special prosecutor (Leon Jaworski) had been a fellow Republican. But for Clinton, the first Republican special prosecutor hadn’t been rabid enough, so he was replaced with a more partisan one. The focus of the investigation kept shifting, eventually settling on Clinton’s sexual escapades. Even the obstruction of justice charge postulated a private conspiracy (inducing Monica Lewinsky to give false testimony in a civil lawsuit) rather than a misuse of presidential power. None of the 45 Democratic senators voted to convict on any charge.

During the Obama administration, Republicans would occasionally raise the idea of impeachment, but it was clear that their standards had declined even further since the Clinton era. Republican Congressman Kerry Bentivolio told a town hall meeting of impeachment-happy partisans that impeaching Obama would be “a dream come true”, but there was one tiny hurdle he didn’t know how to jump yet: “You’ve got to have evidence.”

Now, of course, Republican standards for impeachment are high again and Democratic standards have lowered. But what we need are American standards that we’re willing to apply to presidents of either party.

The Constitution only helps us up to a point. It lays down the basic process, but (as it so often does) leaves the details to the interpretation of later generations. Perhaps that openness is why the document has lasted this long.

I first formulated my ideas about impeachment during the Clinton process, and I will attempt to apply those theories to Trump, even though Clinton is a Democrat and Trump a Republican.

The bad-president problem. The Founders believed that any legitimate sovereignty had to come from the People, but they understood that the People would make mistakes. It was inevitable that sooner or later the United States would elect a bad president — a demagogue who was unwise, uninformed, and temperamentally unfit for the job.

It’s clear what they saw as the primary remedy for a bad president: Wait for his term to end and elect somebody else. (In the meantime, the other branches of government should use their checks and balances to minimize the harm he could do.) We may not have the same appreciation for the elect-somebody-else solution as the Founders, but you have to bear in mind that they were comparing the presidency to the monarchy of England. Alexander Hamilton wrote in Federalist #69:

The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince.

If England had a bad king, the solution was either to revolt or wait for him to die. But in the US, you could circle a date an a calendar and plan for the bad president to be gone. The Founders saw that as a big improvement.

So what is impeachment for? Impeachment is in the Constitution for those rare cases where the country just can’t wait. You can see that reflected in the clause that establishes it.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

What makes treason and bribery so special that the Constitution names them? Each points to a problem more serious than mere incompetence or wrongheadedness or lax morals or bad temper. Both describe situations where the power of the presidency has been removed from the People and might possibly be used against them. A treasonous president is loyal to a foreign power; a bribed one is loyal to some private interest. The power of the presidency hasn’t just been used unwisely, it has been suborned or usurped. That’s a situation that can’t be allowed to continue.

Treason and bribery should be models for “other high Crimes and Misdemeanors”. That phrase, I think, is intentionally vague, to give Congress the leeway to do what it thinks it needs to do. But treason and bribery should set the bar: A legitimate impeachment case needs to argue that the Republic is in danger. There must be some reason why waiting for the next election either won’t work or isn’t good enough.

Reasons to impeach. If you buy that general framework, then legitimate reasons to impeach fall into four categories:

  1. The president is not loyal to the People of the United States. Basically, treason or bribery. A third offense, which in the Nixon impeachment was called “abuse of power”, is similar if a bit more vague: Loyalty to self has eclipsed loyalty to the country. The power of the presidency is being used not for the common good, but to enrich the president, to reward the president’s friends, or to punish his or her enemies.
  2. The president’s actions threaten the integrity of the election process. One reason we might not be able to wait for the next election is that the next election has been compromised. This was the heart of the Nixon impeachment: If a president can harass and spy on political rivals with impunity, then the whole election process becomes untrustworthy. You can imagine extreme cases where the president is winning elections by stuffing the ballot box, as happens in many pseudo-democratic countries.
  3. The president’s actions prevent investigations of (1) or (2). Obstruction of justice can be an impeachable offense, but it should only be used if the underlying charge has some can’t-wait significance. Nixon’s attempt to obstruct the investigation of the Watergate burglary had clear implications for the integrity of the election process. But whether or not Clinton obstructed Paula Jones’ civil lawsuit was an issue that could have waited.
  4. Congress has no other way to protect itself or the judiciary from presidential encroachment. This is not explicitly stated anywhere in the Constitution, but constitutional government doesn’t work otherwise. Congress necessarily relies on the executive branch to carry out the laws it passes. Presidents famously find loopholes that allow them to do things they want and avoid doing things they don’t want. But if a president ignores clear laws or disobeys direct court orders, Congress has to have some way to preserve the powers of the legislative and judicial branches of government. Waiting for the next election isn’t good enough, because (once the pattern is established) the next president might usurp power in the same way. Impeachment is the ultimate arrow in Congress’ quiver. If the Iran-Contra scandal had led to impeaching President Reagan, this would have been the justification.

A fifth condition is urgent in a similar way, but has its own constitutional process: A president who is insane or demented can be removed via the 25th Amendment, if the vice president and a majority of the cabinet believe he or she is unfit.

Reasons that aren’t good enough. Impeachment shouldn’t be seen as a do-over for the voters’ mistakes. No matter how many people change their minds, or how low the president’s popularity sinks, that by itself is not a reason to impeach.

Policy disagreements between the president and Congress aren’t impeachable, as long as the President is respecting Congress’ legitimate powers. Attempts to stretch presidential power into debatable areas — like Obama’s executive orders on immigration — are not impeachable if the president backs down when Congress passes new laws or the courts overturn the orders.

The president becoming an embarrassment to the country is not enough. This, I think, was the mistake at the heart of the Clinton impeachment: Many Americans were embarrassed to hear news reports about oral sex in the Oval Office. That might be a good reason to call for a president’s resignation, but not to impeach.

Loss of faith in the president’s judgment isn’t enough, unless it rises to 25th-amendment levels. If, say, a president were ready to start nuclear war for no reason, the vice president and the cabinet should step in. But if the president just demonstrates bad judgment within the ordinary human range, replacing him or her would be another form of election do-over.

Standards of proof. During the Clinton impeachment, my representative (Charlie Bass) was one of many Republicans who pledged that they would only vote for impeachment if the evidence were beyond reasonable doubt. (He lied, and voted to impeach anyway. It was certainly reasonable to believe that Clinton perjured himself or conspired in Lewinsky’s perjury. Depending on your opinion of Clinton’s character, that may even have been the more likely possibility. But by no stretch of the imagination was the case against Clinton proved beyond reasonable doubt.) I think they made that pledge because they knew that the charges against Clinton were legalistic rather than based on the kind of emergency concerns the Founders envisioned.

But is the criminal-trial standard — beyond reasonable doubt — really the appropriate one? What if members of Congress are only 90% convinced that the president is a traitor? Should they wait for the next election?

Clearly not.

Criminal conviction can take away the freedom we all value and view as our right. But political office, especially a high political office like the presidency, is an honor and a privilege rather than a right. Taking it away just reduces a president to the same level as the rest of us. So the standards of proof required shouldn’t be as high as in a criminal trial. (After a president is removed from office, a criminal indictment might follow. At that trial, the beyond-reasonable-doubt standard would apply. So it would not be unreasonable to remove a president from office via impeachment, and then fail to convict in the subsequent criminal trial. Both outcomes might be appropriate responses to the evidence.)

The House and Senate play different roles in an impeachment, and they should apply different standards. The House is like a grand jury; essentially, it is voting to indict. The Senate is the trial jury; it is deciding whether to convict. I think the House should turn the reasonable-doubt standard upside-down. Voting to impeach should mean two things:

  • The charges are serious enough that they can’t wait until the end of the president’s term, and Congress has no less drastic way to deal with them. If they are true, the president needs to be removed as soon as possible.
  • The evidence could lead reasonable people to believe that the charges are true.

The Senate is making the more serious decision. If the House impeaches, the trial in the Senate will be stressful for the country, but by itself the trial does no real harm. (The country survived the Clinton trial with little damage. The situation when Clinton’s term expired — peace, a budget surplus, low unemployment, low inflation — was arguably better than at any time since.) Improperly removing a duly elected president, though, would be a serious blow to our constitutional system.

The Senate has to weigh the risks on each side: Voting to acquit leaves a possibly dangerous president in office until the end of the term, and tells future presidents that Congress will tolerate the impeached behavior. Voting to convict might damage the presidency and devalue future elections. Which path into the future is better for the country and our system of government?

Application to Trump. It’s possible that Mueller might find the exact wrong-doing that the Constitution specifies: If Trump conspired with the Russian government to gain an advantage in the 2016 election, and if his subsequent favoritism to Russian interests stems from his political debt to Putin, that’s treason. If he has been making foreign-policy decisions based on foreign-government actions that benefit him financially (like the Chinese investment in the MNC Lido City project), that’s bribery. Those would be the slam-dunk cases.

Abuse of power accusations (like his alleged pressure on the postmaster general to raise rates on Amazon to strike back at Jeff Bezos for The Washington Post’s hostile coverage) haven’t gotten as much attention, but would also be serious if they could be proved — not just the fact of pressure, but also the intent. But I would want to see a pattern of such reprisals — like Nixon’s enemies list — rather than just one example.

The offense Mueller is most likely to find is obstruction of justice. The question I would have at that point is whether the obstruction succeeded. (Firing Comey, for example, may have been intended to derail the Russia investigation, but it obviously didn’t.) If Mueller’s conclusion is that Trump’s obstruction prevents us from knowing whether he was part of a treasonous conspiracy, then I would want to impeach him for that. But if Mueller did in fact get to the bottom of the Russia affair, then the impeachment decision should be based on the answer to that question.

One outcome, for example, could be that Trump played no part in the Russia conspiracy, but obstructed justice to cover up crimes committed by his sons or by son-in-law Jared Kushner. If that’s the case, I would indict those people immediately, and prosecute Trump for obstruction after his term ends. It’s a crime, but it’s over now, and waiting does not endanger the country.

I suspect there is considerable evidence that Trump is profiting off his presidency in ways that don’t quite rise to the level of bribery. For example, he could hardly be doing any more to promote Mar-a-Lago than he has been, including spending large quantities of public money there. (Trump’s trips to Mar-a-Lago have cost the taxpayers more than the entire Mueller investigation. “Probably several times over,” estimates the WaPo’s Philip Bump.) The Trump International Hotel in Washington profits extensively from foreigners attempting to curry the President’s favor. (The Trump Organization donated $151K in foreign-government profits to the Treasury, but has not explained how it came up with that number. I would be amazed if it were a fair accounting.) Michael Cohen has collected millions in what appear to be payments for access to the Trump administration, but we still don’t know if Trump conspired in that, or whether the payments bought any government favors.

However, Congress could crack down on Trump’s profiteering without resorting to impeachment. He (and future presidents) could be required to publish their tax returns. Congress could investigate the Trump Organization and do its own accounting of politically tainted profits, or insist that Trump divest (and let him decide whether he would rather resign). It could refuse to spend public funds on any businesses owned by the President. Conflict-of-interest rules that apply to every government official except the president could be extended.

Congress hasn’t done these things because Republicans don’t want to take any action against Trump. It’s crazy to imagine that impeachment is feasible as long as such common-sense moves haven’t been made. Impeachment is a break-glass-in-case-of-emergency last resort; if anything else could fix the problem, it should be tried first.

To be continued … Chances are, not all of the conclusions of the Mueller investigation will be clear-cut. There may be some evidence of collusion with Putin, but not definite proof. It may be impossible to establish whether Trump’s reluctance to sanction Russia was a quid-pro-quo or not. I’ve laid out my general principles on impeachment, but those kinds of judgment calls can’t be made without seeing the specific evidence.

When that evidence comes out, I can only hope that I and the Congress and Americans on both sides of the partisan divide will understand the gravity of the judgment to be made, and that we will all feel the Eye of History watching us.