Category Archives: Articles

What’s Our Story?

How do we defend Western values if we no longer believe the story that used to justify them?


I’m not usually a David Brooks fan. Too often his columns remind me of the “big thinks” of Dr. Moreau‘s upgraded ape-man; he seems far too impressed with his own ability to take on such deep subjects, and has far too little of substance to say about them. His column this Friday “The Crisis of Western Civ” raises a typically Brooksian big-think topic, and as usual provides few useful hints of where to go with it. But this time, he has at least spotlighted a question the rest of us would do well to think about: If Western society no longer feels comfortable telling the Greece-to-Rome-to-Europe story (in which progress’ forward march leads to democracy, science, and human rights), what story should we be telling?

Societies, like individuals, motivate themselves with stories. Individuals often have life crises when the stories they’ve been telling stop working: When the save-the-world or rule-the-world ambitions that got you through school become untenable in middle age, you have a mid-life crisis. The death of a child can leave a parent facing not just grief, but also a who-am-I-now question. Hitting retirement can be a crisis for someone whose story has been all about career and organizational success.

Countries and civilizations do the same thing. Soviet Communism, for example, fell for a lot of reasons, but one important one was that its idealistic story (about leading the world’s oppressed masses in a revolution that would achieve the perfect society) stopped being credible. If you couldn’t believe that any more, then the Party was just another ladder to climb to get more privileges. So who would sacrifice for it or stick by it when times got tough?

Brooks points out that western societies, and America in particular, used to have an equally compelling story: Progress. A representative democracy that respects individual rights, a wide-ranging public debate that allows people of many views to speak their minds without violence, the march of science towards an ever-broader objective truth, and a corresponding march of technology that creates an ever-expanding abundance — this was presented as more than just a trend. It was the “end of history“, the goal that humanity had been consciously or unconsciously advancing towards since it split off from the apes.

And we were the vanguard of that capital-P Progress. It was our job, in Europe and the United States, to perfect Progress and teach it to the rest of the world, much of which was still in some primitive state of ignorance.

Like all stories, Progress was true only up to a point, and got pushed well past that point. Our role as the vanguard of Progress turned into the white man’s burden, and justified the abuses of colonialism and slavery. In practice, the story often turned out to mean little more than freedom and abundance for us at the expense of everyone else. The view of the material world as something to master in our quest for abundance, and a corresponding disrespect for the complexity of the natural systems that regulated life on Earth prior to our ascendancy, has led to mass extinctions of non-human species and the looming crisis of climate change.

So the story of Progress’ triumph has, particularly in academia, gotten replaced — or at least supplemented — by the story of Progress’ tragedy. And that has resulted in a generation of well-educated potential leaders who don’t really believe in the root story of the West. Or maybe they just believe in it half-heartedly.

That’s what worries Brooks: Representative democracy, the rule of law, human rights, science, objective truth, and so on — those are still good things, they are under attack, and they need more than a half-hearted defense. As Putin-style nationalist autocracy starts spreading across the world, as fundamentalist Islam abroad and fundamentalist Christianity at home threaten to turn back the clock to less enlightened eras, defenses of Western values are disturbingly tepid. [2]

Now let me push beyond what Brooks says, into my own big-think territory. Simplifying greatly, so far societies have come up with only three basic types of motivating stories:

  • tribalism. Those of us united by blood and soil are in a zero-sum competition with everybody else. Either we dominate them or they’ll dominate us. [1]
  • transcendent religion. We worship the universal God who has told us exactly how he wants human beings to live. By adopting our ways and worshiping our God, anyone can join us.
  • humanism. We stand for universal values that apply to everyone whether they believe in them or not. Truth is objective and can be found by rational methods available to all. But our understanding of Truth is always open to improvement through exploration and the development of new ideas.

The Progress story always had elements of tribalism and religion, but at its core was a humanistic vision. As that vision loses strength, rival stories based in tribalism and religion gain.

Trump’s message, at its core, is tribalist — America first; zero-sum relationships with other nations in which we either win or lose; non-white or non-Christian immigrants may try to join us, but they’ll never be “real Americans”; and so on. Trump’s ongoing flirtation with white supremacists is not a coincidence or a marriage of political convenience; they make sense to each other because they’re both telling a tribalist story.

In The Atlantic, Peter Beinart recently made a related claim about religion: As it loses its transcendent quality, it also reverts to tribalism. The evangelical embrace of Trump — he carried white evangelical Christians by a wider margin than either Romney or McCain — may seem mysterious, given the pasted-on quality of his own Christianity and the total divergence between his agenda and the Sermon on the Mount. But Beinart digs deeper into the numbers: Trump’s earliest and most fervent supporters are evangelicals who don’t go to church.

As Americans have left organized religion, they haven’t stopped viewing politics as a struggle between “us” and “them.” Many have come to define us and them in even more primal and irreconcilable ways.

… Whatever the reason, when cultural conservatives disengage from organized religion, they tend to redraw the boundaries of identity, de-emphasizing morality and religion and emphasizing race and nation. Trump is both a beneficiary and a driver of that shift.

So is the alt-right. … Its leaders like Christendom, an old-fashioned word for the West. But they’re suspicious of Christianity itself, because it crosses boundaries of blood and soil. [3]

What both Brooks and Beinart are pointing to are the limits of deconstruction. When you critique someone’s worldview — show him that the God of his childhood is too simple to be real, or that his “rational” and “universal” values are hypocritical and self-serving — you hope that he’ll progress towards a more advanced vision, towards a more complex and nuanced religion or a more truly universal humanism. But it’s also possible, perhaps even probable, that the opposite will happen: The failure of his story may lead him to fall back to a more primitive one. And the most primitive story of all — me and mine need to protect ourselves against a rapacious “them” — is incredibly resilient. If all other stories fail you, that one never will.

What Brooks seems to want, by the end of his column, is for critics to let up on the West, its dead-white-men literary tradition, and its unfortunate history of oppression. Beinart doesn’t make such a plea, but it’s easy to come out of his article with a feeling that maybe critics should leave churches alone: If we break them by demoralizing their members, what comes after will probably be worse.

But returning to either the Mother Church or the dead-white-male curriculum seems unlikely to solve the problem. No doubt many voices in the Soviet Union similarly called for a return to true Marxist-Leninist idealism, with less attention to the culture of corruption that was growing as revolutionary fervor faded. It didn’t work for them and a similar relaxation of criticism won’t work for us.

The recent devolutionary trends, though, should at the very least put pressure on those of us who believe in Western values to pay more attention to the positive sources of our faith. One of the many things the 2016 election proved is that our most basic assumptions can’t be taken for granted any more. The virtue of universal human rights and the evil of bigotry is no longer an of course. A belief in objective truth and the scientific method does not go without saying. Neither does democracy and the rule of law.

In the Age of Trump, returning criticism for criticism is not enough. We need to understand why we believe what we believe, why our values are worth defending, and why anybody else should agree with us. OK, the West isn’t the vanguard of History, and there is a lot to regret about our past actions. We have never fully lived by the values we profess. But they continue to be great values, and they deserve a story that explains why.


[1] Note the difference between tribal and tribalist. A tribal story is whatever story a tribe tells, and might be based on a worldview as morally sophisticated as any. A tribalist story is one saying that my tribe is the best and deserves to dominate all the others.

[2] A related problem, which Brooks doesn’t touch, is corruption from within. We tolerate unlimited money in our politics, gerrymandering of our legislatures, presidents taking office after losing the popular vote, a justice system that applies the law differently to whites and non-whites, and many other practices that would outrage us if we truly believed in Western democratic values and saw ourselves as the vanguard of Progress.

[3] American Catholic leaders, for example, understand that they represent not just the white ethnic groups Trump is appealing to, but also a large number of Hispanic immigrants, both documented and undocumented.

Racism, Hot and Cold

It’s hard for conservatives to talk about race. Maybe we could make it easier.


Liberal/conservative conversations about race often go like this one that happened on MSNBC at the end of March.

There is an incident (in this case Sean Spicer scolding a black female reporter, April Ryan) that shows lack of respect for a person of color. The liberal (in this case, Jason Johnson) places it in a larger context, a pattern of disrespect, and calls it out as racism. The conservative (Matt Schlapp) takes offense at the accusation and a shouting match ensues, ending any real exchange of ideas.

To an extent, I think this is a calculated tactic on the part of conservative pundits (or, at least, somebody calculated it at one point and others have imitated): There can be no discussion of patterns of disrespect based on race or gender. Any attempt to start such a discussion has to be shouted down.

Accordingly, any individual incident has to be presented as a unique occurrence and explained by the details of that particular situation. (Schlapp explains that Spicer “got feisty” with Ryan because he was under pressure to get through a lot of news that day.) Attempts to put a racial context around the incident have to be shut down. [1]

But whatever Schlapp or other talking heads might have in mind, it’s worthwhile to consider why their conservative viewers approve of this tactic and never see it for what it is: In conservative circles racism has a very specific meaning that usually doesn’t apply to the situation at hand. To conservatives, racism means conscious hatred, an intention to harm or humiliate a person purely because of his or her race. It isn’t that racism doesn’t exist, but it applies only to the KKK or the Nazis.

To Schlapp, then, it is absurd and outrageous to imagine that Sean Spicer is at his podium thinking “I’m tired of black reporters getting uppity with me, so I’m going to slap this one down.” That’s what Schlapp means when he says, “You don’t know what’s in Sean’s heart.”

But of course, Johnson had never claimed to know what was in Spicer’s heart, or to see conscious hatred there. He was pointing to a pattern of behavior both for Spicer and throughout the Trump administration, in which non-whites are shown less respect. There might be all kinds of reasons for such a pattern.

For example, what if Spicer simply sees blacks (or women) differently than he sees whites (or men)? [2] What if it’s his mental habit to interpret black actions more negatively, and to feel that harsher responses are appropriate? In that case, he might have been entirely unaware that he was treating April Ryan differently than a white White House correspondent like Peter Alexander or Jeff Zeleny, because even if Alexander or Zeleny had done the same thing, it would have looked different to him.

To the conservative mind, though, that’s not racism. If there is no conscious hatred involved, then it’s totally unfair to suggest comparisons to the KKK, as they feel racism does.

“So fine, then,” a liberal might say, “give me the word that applies to this situation and we’ll use it.”

But then you hit the root problem: There is no conservative term for the habitual and perhaps unconscious tendency to see people of another race differently, judge them more negatively, and react to them more harshly. In the absence of such a term, there is no way to point out the phenomenon and discuss it. You can’t ask about the elephant in the room, because elephant refers only to mastodons, who died out ages ago. There is no word for the big, gray animal swinging his trunk around, so any attempt to discuss him inevitably veers off in some other direction.

A conservative might respond that I’m describing an esoteric phenomenon of so little consequence that it doesn’t really need a name or a discussion. But that is completely unconvincing after eight years of the Obama administration, during which conservative media outlets repeatedly raised their audience’s outrage when Obama did things white presidents had been doing without incident for decades. I don’t claim to know what was in the hearts of the people who felt that outrage — I doubt that most of them were consciously aware they were applying different standards to Obama — but the pattern of observable behavior was clear and obvious. [3]

Likewise, this is the whole issue behind Black Lives Matter. It isn’t that people become cops because they like to kill blacks. (I mean, some small number probably do, but I doubt it’s typical, and I believe the system tries to weed those guys out.) But white guys can safely carry semi-automatic rifles through Target, while a black guy in Walmart gets gunned down for picking up a toy. Cops just see young black men differently, judge their actions more negatively, and respond more harshly. We can’t have a rational discussion of that issue because conservatives refuse to call it racism, but don’t offer any alternative term for it.

We could give them one.

I know this isn’t a new idea. In liberal circles, there is already a distinction between conscious and unconscious bigotry. We often talk about implicit bias, and there is even a test you can take for it on the internet. But every term I’ve heard smacks of some liberal bastion like psychology or academia. None of them would sound right rolling out of a conservative mouth. A conservative talking about implicit bias would impress his fellow conservatives about as much as a macho man talking to his locker-room buddies about relationships and commitment.

If we want a real discussion to start, what we need isn’t technical jargon appropriate for an academic journal, but some ten-cent words already in everyday use, taking advantage of some metaphor that ordinary people might come up with if they happened across the phenomenon on their own, without ever attending a course in racial studies.

Here’s a common metaphor that might work: Emotions have temperature. Hate and anger are hot. If you feel a vague aversion towards someone, you are cool to them, and if the aversion got stronger you might want to freeze them out.

If we apply that metaphor to racism, then the kind conservatives already acknowledge, the conscious hatred that Emmett Till‘s killers must have felt, is hot racism. When Richard Spencer calls for “ethnic cleansing” to turn American into a “white ethnostate”, that’s also hot racism.

Cold racism, on the other hand, doesn’t actively wish harm on people of color, but simply fails to factor in their interests or to weigh them as heavily as the interests of whites. Those who watched Eric Garner die saying “I can’t breathe” and felt motivated to make excuses for the police choking him — most of them probably weren’t feeling hatred or anger towards Garner, they were just failing to feel compassion for a fellow human being. The problem wasn’t their heat it was their coldness. [4]

The kind of racism that whites can live with and not notice — the kind that simply sees blacks differently and then acts in a way that feels appropriate to that harsher perception, without any awareness of personal animus — could be described as room-temperature racism. The room-temperature racist feels like he is the one acting normally, and doesn’t understand why others are getting upset with him.

That, I believe, describes Sean Spicer. An avowed white nationalist like Richard Spencer knows that race is an issue for him. But Spicer just believes he’s responding appropriately to what he sees. The details of the Holocaust (to bring up another recent example) just don’t stick in his head. Why, he probably wonders, are Jews so bent out of shape about that?

If liberals started consistently applying a temperature gauge to racism, I think most moderates would understand the metaphor without much explanation, and conservatives might eventually get it in spite of themselves. Some talking heads — the ones who are consciously looking to disrupt discussions of race — might keep reacting with outrage to any mention of racism, regardless of temperature. But part of their audience might realize that finding room-temperature racism in the patterns of Spicer’s responses isn’t the same as fitting him for a white hood. They might eventually recognize that there is a consistent phenomenon in the incidents that carry that label.

Elephants, they might come to understand, are not mastodons. Occasionally there is one in the room. Maybe there should be a conversation about it.


[1] Conservatives, in their usual pot-and-kettle way, claim that it is liberals who shut down discussions by bringing up racism. But this is true only if you begin with the premise that racism can never be discussed. Apparently, it is impossible for conservatives to respond to “That’s racist” with a skeptical “How?”.

[2] In this article I’m going to focus specifically on racism, but what I’m saying could apply to any form of bigotry. We could talk about hot and cold sexism, hot and cold nativism, and so on.

[3] In 2014, I documented a long series of examples, but two moments should stand out in everyone’s memory: State of the Union addresses have contained debatable statements for as long as I can remember, but no white president was ever interrupted by “You lie!“. And the entire Birther theory, which as late as last summer was still given credence by a majority of Republicans, demonstrated that a large number of Americans were ready to believe anything negative about Obama, regardless of evidence.

There are comparable examples of baseless conspiracy theories about white presidents — that George W. Bush was complicit in 9-11 or FDR was secretly Jewish. But all of them stayed on the fringes of public debate. None ever caught on like Birtherism or stayed viable in the face of clear evidence and repeated debunking.

Now, does that mean that Joe Wilson was consciously thinking, “I can’t let that nigger get away with saying that”? Am I implying that everyone who doubted Obama’s citizenship is a potential cross-burner? Not at all, but it is part of a long pattern of seeing blacks differently, judging them more negatively, and responding to them more harshly.

[4] When I google “cold racism”, most of the examples are of the form “stone cold racism”, which is a different thing. It’s the hardness of the stone that’s being evoked, not the temperature of the feeling.

Justice and the Police

Inside our nation is a colony of poor, mostly non-white communities whose police are not under their democratic control. Jeff Sessions wants to keep it that way.


Recalling Ferguson. I remember exactly when I came to accept that Darren Wilson should not be prosecuted for killing Michael Brown: when I read the Justice Department’s report on the shooting. Until then, no entity I trusted had been able to examine all the evidence and report its findings to the public.

From the beginning, the Ferguson police had shown no interest in uncovering the truth; Wilson was their man, and they wanted him to go free. The local prosecutor, likewise, did not want to get on the wrong side of the police, and even Missouri’s Democratic governor saw the case as too hot a potato to pick up.

Only the Obama administration’s Justice Department was far enough removed from the local power structure to be objective. So its report was what finally convinced me: Wilson’s account of the incident was closer to the evidence than the hands-up-don’t-shoot narrative that had been echoing through Ferguson’s black community.

Even after that report, I still believed that Wilson’s animalistic (and at times even demonic) description of Brown was racist. I will never be convinced that killing Brown was his only option, or that he wouldn’t have found another way to resolve the situation if Brown had been white and middle-class. But even so, I knew that if the case went to trial and I were a juror, I could not vote to convict.

Simultaneously, though, Justice issued a parallel report about the general state of policing in Ferguson. The primary mission of Ferguson’s police, the report found, was not public safety, but generating revenue for the city by citing poor blacks for violations that carried fines. Likewise, the municipal court’s mission was to monetize those violations, and if possible to multiply them by making the court process as difficult as possible to navigate without incurring further fines.

The community’s response to Brown’s killing, the two reports implied, was based not so much on the facts of that particular case as on a hope: Maybe finally the police had done something so egregious that the outside world would have to notice the illegal and unconstitutional abuses Ferguson’s black citizens had to endure every day.

The Justice Department had noticed. It worked out a consent decree with the city to change how its police and court systems operate. It is one of many consent decrees Justice has worked out with cities all over the country.

But it’s not going to do that any more.

From oversee to overlook. This week, the Trump Justice Department, led by Attorney General Jeff Sessions, gave notice that it was getting out of the business of overseeing local police. In a memo to his department heads and to local U.S. attorneys, Sessions wrote:

Local control and local accountability are necessary for effective policing. It is not the responsibility of the federal government to manage non-federal law enforcement agencies. [1] … The Deputy Attorney General and Associate Attorney General are hereby directed to immediately review all Department activities — including … compliance reviews, existing or contemplated consent decrees — … in order to ensure that they fully and effectively promote the principles outlined above.

That memo had immediate effects, though perhaps not entirely the ones Sessions intended. His subordinates tried to torpedo the consent decree that Obama’s Justice Department had worked out with Baltimore just before leaving office. But the presiding judge was having none of it, ruling that

The case is no longer in a phase where any party is unilaterally entitled to reconsider the terms of the settlement; the parties are bound to each other by their prior agreement. The time for negotiating the agreement is over. The only question now is whether the Court needs more time to consider the proposed decree. It does not.

Having received the judge’s blessing, the Baltimore agreement is now in force. However, the outline of an agreement that had been worked out with Chicago is not yet official, and may well go back to the drawing board. Mother Jones paints the larger picture:

A report released in February by Samuel Walker, a police reform expert at the University of Nebraska in Omaha, determined that most consent decrees enforced by the Department of Justice since 1994—when Congress passed legislation granting the DOJ oversight authority over local police agencies—have been successful in achieving long-term reforms. Consent decrees are binding legal agreements, and once signed, they are overseen by a federal judge and an appointed monitor. The DOJ’s ability to interfere with that process is limited, [former Obama Justice official Jonathan] Smith said.

But there are things the DOJ can do to undermine it. It could ignore violations of decrees and stop taking police departments to court because of them. It could also seek to renegotiate the terms of a decree or to have it dropped altogether—though that would be difficult even with the cooperation of a police department, Smith said. “After all, these injunctions are entered to protect the public interest,” Smith said.

Why isn’t local accountability enough? But even if we recognize the damage likely to result from Sessions’ decision to stop overseeing and start overlooking police abuses, we have to admit that the first line I quoted from his memo is quite true:

Local control and local accountability are necessary for effective policing.

The obvious question to ask, then, is why such local accountability doesn’t exist in so many places. The black citizens of Ferguson live in a democracy, after all, and local elections are held on a regular basis. Why did they — or the black citizens of Baltimore or Chicago or dozens of other cities — have to raise the attention of the national media and of Washington in order to get local reform?

The answer to that question is in Chris Hayes’ fortuitously timed A Colony in a Nation, which came out last month.

This book makes a simple argument: that American criminal justice isn’t one system with massive racial disparities but two distinct regimes. One (the Nation) is the kind of policing regime you expect in a democracy; the other (the Colony) is the kind you expect in an occupied land. … If you live in the Nation, the criminal justice system functions like your laptop’s operating system, quietly humming in the background, doing what it needs to do to allow you to be your most efficient, functional self. In the Colony, the system functions like a computer virus: it intrudes constantly, it interrupts your life at the most inconvenient times, and it does this as a matter of course. The disruption itself is normal.

Ferguson and the Founders. Hayes begins, like I just did, in Ferguson, where the goal of policing is not public safety, but revenue enhancement. And he draws a parallel I would not have thought of: to the American colonies in the decade before the revolution.

In high school American History, we were all taught that the revolution was about “taxation without representation”. But in fact, Hayes argues, the colonies had existed under onerous tax-and-tariff laws for a long time. From Britain’s point of view, the purpose of the American colonies had always been to produce raw materials for British industry and markets for its finished goods. From the beginning, the colonies had been barred from trading with rival powers and taxed steeply when they traded with the homeland.

And from the beginning, the colonies had been rife with smugglers, some of whom (like John Hancock) achieved great prestige. Colonial life was largely one big smuggling conspiracy. Ordinary people did their best to interfere with customs agents, and juries often let guilty smugglers go.

What changed after the French and Indian War wasn’t so much the British laws and taxes, but their policing regime: They began trying to collect the taxes the law said were owed.

The British crackdown essentially inaugurated America’s first tough-on-crime era. It was a classic crackdown: more customs officials were granted more expansive powers, while courts were streamlined to produce swift punishment and avoid the maddening jury nullification … After 1763 customs officials no longer looked the other way in exchange for small bribe. Instead, they began operating in ways that looked a lot like what we now call “stop and frisk.” … American colonists were subject to British invasions of their carriages, ships, and homes without the safeguards enjoyed by their English cousins.

It wasn’t the financial burden of taxes that caused the revolution, it was the “insulting and humiliating” policing necessary to collect those taxes.

No wonder places like Ferguson sometimes seem so rebellious now.

Real community policing. Among law-enforcement theorists, community policing means that police maintain relationships with the local community. The image of community policing is the cop walking a beat, recognizing and being recognized by the people he passes.

But Hayes raises the stakes, pointing out what community policing might mean: Not individual cops maintaining relationships, but an entire system of policing — what laws get enforced and how — that is responsive to the community being policed.

That sounds incredibly utopian until Hayes points out that such systems already exist: on college campuses. First he describes the lax enforcement of drug laws he remembers from his student days at Brown. But then he reports the shock to his Ivy League sensibilities when he got a job in Madison, home of the University of Wisconsin.

Nothing I’d seen during my college years quite prepared me for the sheer insanity of a big football program home game. Tens upon tens of thousands of people, of all ages, were shit-faced drunk. Frat row was in a state of debaucherous pandemonium, with dozens of students passed out on lawns and outdoor couches, amid no small amount of vomit, urine, and broken bottles.

He wonders about the role of race.

[W]ould all this (mostly harmless) mayhem meet with such enthusiastic tolerance if it were a hundred thousand drunk-as-hell black folks streaming through downtown Madison? Something tells me, no chance.

The couple I was staying with had season tickets to the games, and while they rolled their eyes a touch at some of the excesses, they were part of a community, and they understood and embraced that this was a community ritual, a norm collectively arrived at.

Compare that mental image to the militarized police rolling down the streets of Ferguson during the Michael Brown demonstrations. Was that display of force also “a norm collectively arrived at”? Or was it control from the outside?

If you took a lot of [student] behavior out of the Nation and put it in the Colony — say, out of Harvard Yard and into a big city housing project — if would provide the material for dozens of articles on the pathologies of poverty that hold back poor people of color. People sleep all day; they engage in loud, frequent relationship dramas while having numerous different sexual partners, and they get into drunken arguments and brawls and consume ungodly amounts of controlled substances.

University police know that their job is to serve the interests of the students they police (and their parents, who pay the bills). No one wants to pay hundreds of thousands to send their children to college, only to have them sent from there to jail, or to come home with a criminal record. So universities are policed in a way that minimizes those outcomes.

No doubt citizens of the black and Hispanic neighborhoods of New York didn’t want to be routinely stopped and frisked, or to see minor confrontations spiral out of control until their fellow citizens were imprisoned or dead. Black citizens of Ferguson didn’t want police to see them as prey, as sheep to be sheared for the benefit of the municipal budget. But they lacked the power to get the policing they wanted through local democratic channels. And now, under the Trump administration, they will also lack the power to go over the heads of local political interests and get a sympathetic hearing from federal officials.

Larger factors. So far, my summary sells Hayes’ book short: It paints a far larger picture, including discussions of white fear, the difference between law and order (and public safety, which is a separate consideration), and the financial value of order to owners of real estate.

But the book will have done an important job if it simply gets its central image into the public discussion: Some parts of the United States are nothing more than colonies run for the benefit of other parts.

To the Colony, Jeff Sessions is like the new governor sent over by George III to maintain control. And the next time there’s a shooting like Michael Brown, we will never really know what happened, because no disinterested party will ever investigate.


[1] Actually, it is the responsibility of the Justice Department. In essence, Sessions is saying that he will not enforce the following paragraph of the Violent Crime Control and Law Enforcement Act of 1994.

§ 14141. Cause of action

(a) Unlawful conduct

It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

Where Did That Come From?

The attack on Syria reverses what little we thought we knew about Trump’s foreign policy.


In his campaign and the early days of his administration, Trump did not lay out a detailed vision of foreign policy. But he did have a slogan:

From this day forward, it’s going to be only America first  America first.

No longer would we spend “trillions and trillions of dollars overseas while America’s infrastructure has fallen into disrepair and decay.” We weren’t going to commit our blood and treasure for sentimental reasons, or to uphold abstract global principles, or perhaps not even to defend our allies. Our military would be used to promote our interests, and nobody else’s.

The administration’s early moves followed that course: His proposed budget sharply cuts foreign aid. By some accounts, he presented German’s Angela Merkel with a printed bill for Germany’s share of NATO’s defense expenses.

He particularly applied this view to Syria. Such troops and air strikes as we committed to Syria were to fight ISIS, and not to play any role in helping rebels oust the Assad regime. Not only did he want to reverse President Obama’s commitment to taking in Syrian refugees, he didn’t want anyone at all to come here from there, not even as tourists. Just 11 days ago, UN Ambassador Nikki Haley and Secretary of State Rex Tillerson were saying that we no longer were going to “focus on getting Assad out“.

Then Tuesday came Assad’s gas attack on Khan Sheikhoun, killing dozens of civilians and producing horrifying video. Trump’s initial reaction was to blame Obama for not taking military action against Assad after a previous chemical attack in 2013 — inaction that Trump demanded at the time. Then he made a semi-coherent statement expressing personal horror at the videos, blaming Assad, and praising himself in advance for his “flexibility”, i.e. not being bound by anything he had said in the past.

Thursday, he shot 59 Tomahawk missiles at the airbase the gas attack came from. The attack was mostly symbolic, since the base reportedly was back in operation quickly, and further airstrikes were made against the same rebel-held area, though apparently no chemical attacks.

So what’s the United States’ foreign policy now? No one seems to know.

What should we do? Before I get too far along in criticizing Trump, let me state for the record that I don’t know what to do about Syria either. Neither do you and neither does anybody else.

Revolutions and civil wars can have happy endings when there is a popular will or national identity that the current ruler is thwarting. In such a case, if you just get that ruler out of the way, things can take their natural course. Being conquered did wonders for Japan and Germany (at least in the west) because the people in those countries had a strong notion of what it meant to be Japanese or German. Given a benevolent conqueror, democratic institutions could be established and a popular government elected.

But while democracy can empower a popular consensus, it can’t create one from nothing. That’s what we’ve seen in Iraq. An occupying power can hold elections, but if the winning and losing sides still want to kill each other, the elected government can’t represent them both. When there is no popular will for democracy to bring to power, no consensus notion of what the country is or how it should be run, then there is no obvious happy ending to aim for. Any outside power that intervenes is looking at a menu of dismal outcomes, all of which will leave its people asking: “We killed and died for this?”

That’s Syria. There isn’t a popular resistance, there are a dozen or so of them, none of which gets along with the others.

Talking past each other. If I can’t give a just-do-this answer, I can at least try to disentangle some of the public discussion. A lot of the commentary on Syria consists of people talking past each other, and the main reason seems to be that “caring about Syria” can mean you care about a lot of different things. Here’s an incomplete list of what your concerns might be:

  • the Syrian people
  • the political stability of the region
  • the rivalries of great powers as they express themselves in the region
  • international law, particular as it concerns chemical weapons

For example, many have pointed out that the Syrian people probably don’t much care whether Assad kills them with gas or with explosives. But to others, the limited use of chemical weapons since World War I is one of the great successes of international diplomacy, and it would be a shame for that to fall apart, even if preserving it doesn’t help any Syrians.

Conversely, accepting more Syrian refugees doesn’t address any of the concerns of the international-law folks.

The limited menu. Whoever was president this week would have had the same three immediate military options:

  • Don’t respond. Let the civil war continue with its endless death. And let the world’s malefactors infer that (for practical purposes) chemical weapons are OK now.
  • Launch an attack to bring Assad down. Either we’d take over Syria with our own troops, or we’d cripple Assad’s military so badly from the air that some group of rebels could win. The risks are endless quagmire for our troops, a larger war with Russia and/or Iran, the possibility that the winning anti-Assad faction will be even worse, or that even after Assad is gone, the war between the other factions will continue and be just as bad.
  • Launch a symbolic attack that won’t affect the outcome of the war. Such an attack won’t help the Syrian people, but Russia and Iran will probably accept it, and it will preserve (to some extent) the international stigma on chemical weapons.

Trump made the third choice, which probably is pretty close to what Hillary Clinton would have done.

The question is whether there is any follow-up — Clinton probably would have had something in mind — and so far it appears that the answer is no. On the Sunday talk shows, Nikki Haley said regime change in Syria is “something that we think is going to happen”, but National Security Adviser H. R. McMaster strongly implied the ball was in Russia’s court, not ours.

We are not saying that we are the ones who are going to affect that change [in the Assad regime]. What we are saying is, other countries have to ask themselves some hard questions. Russia should ask themselves, what are we doing here?

So we’re waiting to see what Russia does, and so far they’re not backing away from Assad.

A few more points worth making:

Obama is getting a bad rap. Numerous commentators are giving Trump credit for “doing something”, compared to Obama who “did nothing” after Assad’s chemical attacks in 2013.

That’s only true if “something” has to be a military attack. What Obama did was get Russia to oversee the removal of large stockpiles of chemical weapons from Syria, which resulted in no chemical attacks for the rest of his administration. Given the either bad or negligible consequences of the military choices (which Trump is facing now), finding something off the menu was a pretty good move.

Don’t forget the climate change angle. The “Climate Wars” episode of Years of Living Dangerously features Thomas Friedman in Syria, exploring the role an exceptional drought played in starting the civil war.

What if Trump’s reaction really was spontaneous? One explanation of Trump’s missile attack is that he was so affected by images of the victims of the chemical attack that he felt a spontaneous desire to strike back, even if it contradicted all his previous positions.

Here’s the analogous story that popped into my mind: In 1952, bank robber Willie Sutton was caught because amateur detective Arnold Schuster spotted him on a New York subway. Schuster was then murdered, which was a mysterious development, since Sutton had never been that kind of criminal.

One explanation that eventually came out was that mob boss Albert Anastasia, who had no connection to Sutton and who was getting increasingly unstable as his power grew, saw Schuster tell his story on TV and spontaneously told his men “I can’t stand squealers! Hit that guy!”

An unstable guy with too much power has a violent-but-fleeting reaction to something he sees on TV, and people wind up dead. I think I’d rather believe a conspiracy theory.

Can We Get Real About Opioids?

The problem isn’t in Mexico or on our southern border. It’s here, and it’s us.


All my life I’ve been hearing about the drug problem, but mostly what I’ve heard are attempts to dodge responsibility. Those attempts have taken two main forms:

  • It’s not my problem. The middle-aged, middle-and-upper-class whites who run the country project the problem onto inner-city blacks or white-trash teens, who can be written off. In other words: I don’t need to do anything, they just need to shape up.
  • The solution is to punish somebody else. The problem isn’t the American demand for drugs, it’s the supply chain. If we just extend the death penalty to pushers, or seal the border, or launch para-military operations against drug cartels, or spray enough herbicide on the poppy fields of Afghanistan or the coca fields of Columbia, that’ll fix it.

In recent years, though, that first dodge has been breaking down. The opioid problem has started to climb up the national agenda not just because the overall number of deaths has increased, but because drug abuse has increasingly begun to affect whites, rural and suburban communities, and people who are both over 30 and above the poverty line. In cynical political terms: people who matter.

Let’s review a little: Drug overdoses killed 52,000 Americans in 2015. That’s more than car accidents (35K) or gun deaths (36K). The National Institute of Health estimated that in 2013, 1.9 million Americans were dependent on pain relievers, with another million or so dependent on heroin, sedatives, and tranquilizers.

That’s such a big deal that it’s pushing down the national life-expectancy-at-birth numbers, which in 2015 fell for the first time since 1993, from 78.9 to 78.8. (That’s the National Center for Health Statistics number. For cross-country comparisons, the World Health Organization figures slightly differently. It rates the U.S. at 79.3, well below Japan at 83.7 and culturally similar Canada at 82.2.)

But what makes this a politically serious problem is that it’s hitting white people: The 2015 national life expectancy decline might turn out to be a statistical anomaly, but white life expectancy has barely budged since 2010.

That doesn’t just change the importance of the problem, it changes the rhetoric. If drugs aren’t just a problem for “those people”, then we can’t solve it by telling them to shape up. The rhetoric has to soften, and lean more towards empathy than tough love. During the campaign, Trump said this about the opioid problem:

We’re going to take all of these kids — and people, not just kids — that are totally addicted and they can’t break it. We’re going to work with them, we’re going to spend the money, we’re gonna get that habit broken.

But so far that’s been a shaky promise. The for-now abandoned TrumpCare plan would have eliminated the ObamaCare mandate that insurance policies cover addiction treatment, not to mention the millions of people it would have left without insurance entirely. He claimed to increase funding for addiction prevention and treatment by $500 million, but apparently that was just him taking credit for the 21st Century Cures Act passed under Obama.

But Wednesday was opioid abuse day at the White House, so Trump appointed a commission that will issue a report in October. That’s some real action for you.

While he waits for that report Trump continues to use the second dodge: He’s spinning drugs as a border-protection issue that the Wall will solve. Wednesday, after listening to several people’s stories of addiction that began with prescription drugs, he said:

So it’s been really — it spiked over the last eight to ten years.  Would that have anything to do with the weakening of the borders? Because a lot of it comes from the southern border.

Like so many Trump statements, this presents a thicket of misperceptions that you have to hack your way through. First, the border hasn’t “weakened” in recent years. We’ve had more fences and border agents than ever, and fewer people crossing illegally.

And then we get to the reality of the drug problem: About a third of the 52,000 opioid overdose deaths in 2015 were from prescription drugs, and many of the illegal-drug ODs are simply the end of a story that began with legal drugs. Even if we could shut off all the heroin and fentanyl coming from overseas — it’s mostly from Mexico right now, but that doesn’t mean drug importers would give up if we capped that particular pipe — the problem wouldn’t be solved.

And then there’s the assumption that the Wall would stop Mexican drugs cold. Even granting the shaky assumption that Mexico lags behind in crucial ladder technology, bags of pills or powder are not that hard to throw. Fill a football with them, and any high school quarterback could complete the pass.

In short, the only real way to attack this problem is on the demand side, not the supply side. We have to prevent people getting addicted to prescription opioids, and help current addicts (to both legal and illegal drugs) quit. The Great Wall of Mexico won’t do that.

What would? Three things:

  • Finding ways to manage chronic pain without addictive drugs.
  • Reducing the overall level of despair among people that the 21st-century economy is leaving behind — over-50 folks in rural areas as well as non-white inner-city youth.
  • Funding effective rehab programs for everybody who wants to quit.

None of those is a just-do-it thing. We know how to build walls, but chronic pain and despair and effective rehab are much harder questions. The difference is: They’re the right questions, rather than just new ways to dodge the problem.

Freedom (Comcast’s) vs. Rights (Yours)

Freedom can be a bad thing,
if it’s the freedom of the strong to push the weak around.


In American politics, few words have a more positive ring than freedom. We bill ourselves as “the land of the free“. We send troops to bring freedom to other countries. (Our invasion of Afghanistan, for example, was Operation Enduring Freedom.) In the Cold War, our side was the Free World. When France opposed our invasion of Iraq, congressional cafeterias renamed french fries as freedom fries.

Our economic system also claims freedom as one of its top virtues. Milton Friedman’s defense of unfettered capitalism was Free to Choose. The low-tax, small-government, regulation-cutting group in the House calls itself the Freedom Caucus.

The word is so popular that it’s hard to challenge. (Try to imagine someone running as the anti-freedom candidate.) But it needs to be challenged, because often what gets justified by the prestige of freedom are policies that favor the strong over the weak. In particular, certain kinds of freedom have to be restricted in order to establish another good thing, rights.

I first started talking about this more than year ago in a historical context: During Reconstruction, the rights of the newly freed slaves only existed as long as the Army was nearby to restrain their former masters from re-enslaving them. When the Army was withdrawn from the South in 1877, black rights began to vanish until by the turn of the century Jim Crow was fully established. In the rhetoric of that era’s Southern whites, this was a freedom issue: The oppressive federal troops had to leave so that the Southern states could be free to govern themselves as they saw fit.

I drew this conclusion:

Your freedom just needs the government to get out of your way, but your rights require government involvement.

This week we got a more topical example: Senate Joint Resolution 34, “Disapproving the Federal Communications Commission’s Rule on Privacy of Customers of Broadband Services”, which recently passed the Senate on a straight party-line vote and the House with a few Republican defections. The Electronic Frontier Foundation summarizes:

Should President Donald Trump sign S.J. Res. 34 into law, big Internet providers will be given new powers to harvest your personal information in extraordinarily creepy ways. They will watch your every action online and create highly personalized and sensitive profiles for the highest bidder. All without your consent. This breaks with the decades long legal tradition that your communications provider is never allowed to monetize your personal information without asking for your permission first.

There has been absolutely no public clamor for this. Nobody has been writing their senators to say, “I wish Comcast could spy on everything I do on the internet, so that they could sell whatever they figure out to people I know nothing about.”

Now that Republicans have a majority of FCC commissioners, similar things have been happening on that level: Last month, the FCC stopped a new data-security rule from taking effect. The rule

would have required ISPs and phone companies to take “reasonable” steps to protect customers’ information—such as Social Security numbers, financial and health information, and Web browsing data—from theft and data breaches.

Again, how many Americans want ISPs to be careless with their personal data? Or to shrug and say, “shit happens” if it gets stolen by hackers? And again, this was a partisan thing: The rule came from the old Obama-dominated FCC and it was blocked by the new Trump-dominated FCC.

Why? Two things are going on here: First and most obvious, special-interest politics: The big ISPs spend way more on lobbying and campaign contributions than you do, so their desire for profit wins out over your desire for privacy.

But what makes this a partisan issue? Democrats can be bought too, so why isn’t corporate money swaying them as well? The answer is that philosophically proposals like this fit a Republican freedom agenda, but not Democratic rights agenda. Freedom is about getting government out of the way. In essence it restores what Founding-era philosophers used to call “the State of Nature“. The State of Nature includes all kinds of wonderful freedoms, but one of less wonderful ones is that the strong are free to push the weak around.

Rights, on the other hand, are airy-fairy things until there is some institutional mechanism to enforce them, and the State of Nature knows nothing of such institutions. In the State of Nature, for example, you may claim a God-given right to criticize the local strongman. But if he is also free to burn your house down, your right doesn’t amount to much. In practice, the weak have no rights until some institution like government restricts the freedom of the strong.

That’s the issue here: Without meddlesome FCC regulations, your right to privacy on the internet is an airy-fairy thing that the ISPs are free to ignore.

In short, freedom is not always your friend. The more freedom big corporations have, the more you will be under their thumb.

The Future Goes to Jared

Jared Kushner is a paradigm for success in the Second Gilded Age: He was born rich and married the boss’s daughter.


Underneath conservative rhetoric about opportunity and entrepreneurship are policies that promote an entrenched aristocracy. Proposals to cut the top tax rates and eliminate taxes entirely on dividends, capital gains and large estates mean that once your money starts making money, it should never be taxed again. As John Adams put it, “The snowball will grow as it rolls,” rolling, in this case, down the generations. If your family controls a major corporation, lax anti-trust enforcement will help keep it on top. Gutting public education, maintaining a low minimum wage, keeping college expensive, and saddling those plebians who make it through with unmanageable debt — that all works to grease the pole of success against low-born upstarts. And to keep any of it from changing, eliminate restrictions on money in politics.

We’ve been working towards this vision since Reagan, creating what Paul Krugman has dubbed “the New Gilded Age” and Thomas Piketty calls “patrimonial capitalism”

in which the commanding heights of the economy are controlled not by talented individuals but by family dynasties.

If you want a symbol of this new aristocratic reality, you need look no further than Jared Kushner, who was born rich, married the boss’s daughter, and is now (at age 36) one of the most powerful people in the country.

Kushner’s title is Senior Adviser to the President, and his yuuuuge portfolio just keeps growing. For example, he is the administration’s point man on bringing peace to the Middle East. That project might totally absorb someone of lesser dynastic credentials, but he also has been Trump’s channel to China, a nation some distance from the Middle East. The Washington Post describes him as “almost a shadow Secretary of State” and “the primary point of contact for presidents, ministers and ambassadors from more than two dozen countries, helping lay the groundwork for agreements.”

Apparently that still left him with a lot of free time, so last Monday Ivanka’s Dad named him to head the new White House Office of American Innovation, which has a broad purview:

OAI will create task forces to focus on initiatives such as modernizing Government services and information technology, improving services to veterans, creating transformational infrastructure projects, implementing regulatory and process reforms, creating manufacturing jobs, addressing the drug and opioid epidemic, and developing “workforce of the future” programs.

Remember when the emerging Tea Party was getting so upset about Obama appointing “czars” to coordinate various policy areas? Kushner is an UberCzar — virtually an unelected crown prince — but Tea Partiers seem not to have noticed. Maybe the problem wasn’t the job itself, but that Obama’s czars were just too proletarian.

Elizabeth Spiers, who Kushner hired to be editor of New York Observer before she resigned and he reduced that once-great newspaper to a web site, is skeptical of Kushner and the value of his business experience in reinventing government. Government, she suggests, suffers from a pennywise/poundfoolish approach to costs, which leaves some offices still using floppy disks. According to Spiers, Kushner took a similar approach at the Observer, preferring to whittle down costs rather than invest for the future. And then there’s this:

I didn’t think he had a realistic view of his own capabilities since, like his father-in-law, he seemed to view his wealth and its concomitant accoutrements as rewards for his personal success in business, and not something he would have had in any case. To me, he appeared to view his position and net worth as the products of an essentially meritocratic process.

But I wonder if it’s Spiers who isn’t being realistic, and is clinging to a pre-Reagan notion of merit. Yes, Kushner may have little in the way of personal accomplishments or evidence of expertise relevant to governing a republic. But if merit is a matter of blood and breeding, and if it is enhanced by an alliance of great houses, then he has merit in spades.

What, you may ask, is the moral of this story? Maybe it’s that parents need to orient their offspring to the true nature of success in this era. Put aside those obsolete lessons about talent, hard work, and becoming excellent in your field. Focus instead on what really matters. True, it may already be too late for your children to be born rich. (That’s your fault, not theirs.) But as long as there are marriageable scions of wealth and power out there, America can still be their land of opportunity.

Donnie in the Room

(with apologies to Ernest Lawrence Thayer)

The outlook wasn’t brilliant for Republicans that day.
They’d promised for six years that they’d repeal the ACA.
But when the caucus gathered, and they looked from man to man
They knew that not a one of them had ever had a plan.

“I’d counted on a veto,” said a rep from Tennessee.
“The blame Obama always took would fall on Hillary.
Then Pennsylvania went for Trump, and Michigan the same.
And now we run the government, we can’t just play a game.”

A colleague from Wyoming was equally concerned.
Shaking his head sadly, he stated what he’d learned.
“My hopes from the beginning always had one little flaw.
I’d pictured making speeches, never thought I’d write a law.”

Neither had the others, though they often said they would.
They knew what programs shouldn’t do, but not the things they should.
Then said a man from Texas, “We’ll never have success.
We got so used to saying No, we’ll never get to Yes.”

“I know,” said Ryan hopefully, “that’s sometimes how it feels.
But Donnie wrote the book about the art of making deals.
I know agreement’s hard to find, and deadlines closely loom.
But we can still succeed if we get Donnie in the room.”

Oh Donnie! Clever Donnie! How everyone agreed.
The plan that he campaigned on was just the one they’d need.
It ended it all the mandates! It set the markets free!
And still it covered everyone, from sea to shining sea!

“It offers better treatment,” noted one committee chair.
“And cheaper,” said another, “I know cause I was there.
You should have heard the cheering. I thought the roof would fall.
And Mexico will pay for it! No, wait, that was the wall.”

But just how would he do it? That wasn’t in their notes.
It wasn’t in the speeches that he made while seeking votes.
It wasn’t on his website, and they recognized with gloom.
They’d never reproduce it without Donnie in the room.

So Ryan checked the White House, but Donnie was away.
He wasn’t in Trump Tower, and he hadn’t been all day.
Ivanka took his message, “Call me when you can.
We can’t repeal ObamaCare without your TrumpCare plan.”

When the President returned his call, he sounded tired and mean,
As he contemplated bogey from the bunker on fifteen.
“Write whatever bill you want. I really couldn’t tell.
Content doesn’t matter, Paul. It’s all in how you sell.”

“But what about the plan you had, the one in the campaign?”
“I only planned to have a plan, that’s no cause to complain.
Grasp this opportunity, and you’ll know what to do.
I sold all the voters, now you get to come through!”

So Ryan then picked up his pen, and wrote a plan so good
It didn’t do a single thing that Donnie said it would.
And as the caucus read it, they all wanted to vote No,
Both from the left, and from the right, and from the CBO.

The Speaker counted noses, and he always came up short.
And for the ones who criticized, he had no good retort.
But Ryan still was smiling as he sorted hateful mail.
For Donnie, clever Donnie, would soon complete the sale.

Trump was back in Washington with all his awesome charm.
He flattered and he compromised and twisted by the arm.
“Those whip counts are fake news,” he said, “we’ve got the votes and more.
Everyone will back me when we take it to the floor.”

Oh, somewhere in a favored land, the people get their way,
And illness leads to treatment, even if you cannot pay.
And somewhere leaders pass the law that makes their promise real.
But there’s mourning in the caucus, Donnie could not close the deal.


Afterward: Why Casey? In my generation of Americans (I’m 60) it was hard to get through school without at some point running into the poem “Casey at the Bat” written in 1888 by Ernest Lawrence Thayer. Casey, then, is iconic American figure. Carried away by his own myth and the adulation of his fans, he sets up a dramatic situation in which he can’t deliver the appropriate conclusion. (Rather than hit the game-winning home run that the poem seems to be leading up to, he strikes out.) The parallel to Trump the Great Negotiator seemed obvious to me, which is why I used the cadence and a few phrases from “Casey at the Bat” in this poem.

Still a Muslim Ban, Still Blocked

Judges have traditionally assumed that the executive branch is best equipped to deal with national security and foreign affairs, and so courts should defer to the judgment of the President in those areas. But what if the President is acting in bad faith?


Last week I characterized the second version of Trump’s Muslim ban like this:

the revised ban is more orderly than the original, and won’t produce the same kind of drama … but the essence is the same: It’s still a Muslim ban.

The new ban avoided the chaos and obvious due-process violations that made the original so easy for the courts to strike down. So the next round of cases would have to go to the heart of the matter: Does the order arise out of an unconstitutional intent to discriminate on the basis of religion?

The three-judge appellate panel that upheld the temporary restraining order against the original ban had reserved judgment on the religious-discrimination claim, reasoning that the due-process violations already justified a TRO. I suspect it did this to preserve the unanimity of its ruling, which made a stronger statement than a 2-1 decision. (In the face of that unanimity, Trump decided to revise that ban rather than appeal to the Supreme Court.)

To justify a religious-discrimination finding (i.e., one based on the First Amendment’s prohibition against the government establishing a religion, known as the Establishment Clause), a judge would have to reach outside the text of Trump’s executive order and connect it both to the previous attempt at a Muslim ban, and to the anti-Muslim bigotry in Trump’s campaign. I wondered if judges would have the guts to do that.

This week, two did: one in Hawaii and the other in Maryland. The new order was supposed to take effect at midnight Thursday morning, but Wednesday evening a federal judge in Hawaii issued a temporary restraining order blocking it nationwide. “Temporary” means until his court has a chance to hold more complete hearings on the case, and quite likely until all appeals are resolved. Judge Derrick Watson wrote:

Because a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.

Because it’s the second time around, some issues are easier, like standing: Who is sufficiently harmed by the executive order that they have grounds to sue? In this case, the State of Hawaii sued, claiming the same standing that the 9th Circuit Court of Appeals had already recognized the State of Washington having: The state operates a state university system, which recruits both students and faculty from the banned countries. Since Hawaii falls within the 9th Circuit, that doesn’t have to be argued again. (But there is a wrinkle: The new ban contains a more detailed process for obtaining waivers, so if this is the basis of standing, it can be argued that the case is not yet “ripe”: Perhaps the states need to wait and see how their recruited students and faculty fare in the waiver process. Judge Watson does not appear to consider this argument.)

Judge Watson also recognized the standing of Dr. Ismail Elshikh, a Muslim-American of Egyptian descent who lives in Hawaii and is the imam of the Muslim Association of Hawaii. Dr. Elshikh claims that his Syrian mother-in-law will be hindered from visiting his family in Hawaii, and also that he, his family, and his organization will suffer from the stigma that the order casts on Muslims in general.

In order not to violate the Establishment Clause, a government action must satisfy three criteria, collectively known as the Lemon Test. Judge Watson concluded that the Muslim Ban failed the first test: having  “a primary secular purpose”. (Here’s an example of secular purpose that passes muster: It’s OK for Medicaid funding to pass through Catholic hospitals, because the government’s primary purpose is to pay for medical care, not to promote Catholicism.)

Watson acknowledges that the text of the new executive order is “religiously neutral”. In other words, it does not mention Islam or any other religion by name. It applies equally to all residents of the six targeted countries, and does not apply to the majority of the world’s Muslims, who live in other countries. But he quoted the 9th Circuit’s opinion on the original ban:

It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.

and says that

The Supreme Court has been even more emphatic: courts may not “turn a blind eye to the context in which [a] policy arose.” … A review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context. The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.

Judge Watson traces the history of Trump’s explicit call for a Muslim ban, including his admission that his subsequent policy of “extreme vetting” was the Muslim ban in a new form.

Mr. Trump replied: “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked to clarify whether “the Muslim ban still stands,” Mr. Trump said, “It’s called extreme vetting.”

Watson acknowledges the Trump administration’s point that judges should not look too hard for “veiled” and “secret” motives that make an action by the political branches of government unconstitutional. But he argues that there is nothing veiled or secret going on: The anti-Muslim motive has been front and center from the beginning, and the path from Trump’s original goal of a “Muslim ban” to the current order has likewise played out in public, in what he describes as “plain words”. Therefore:

Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.


The Maryland ruling by Judge Theodor Chuang lays out similar logic. He cites many of the same public statements, and also the process by which the orders have been written:

the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban.

… In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban. First, the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters. … The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.

Second, the fact that the national security rationale was offered only after courts issued injunctions against the First Executive Order suggests that the religious purpose has been, and remains, primary.


Both opinions cite McCready County v ACLU, a 2005 Supreme Court ruling. Every time a court banned the Ten Commandments displays in McCready County’s schools and courthouses, they’d install new ones that supposedly fixed the problems the courts had cited. The case is a paradigm of a particular kind of denseness: when officials think they can achieve an unconstitutional purpose if they just get the details right.

McCready County and its religious-right fans kept reading judicial rejections as blueprints for designing the next attempt in the series, but eventually the series itself became evidence of an intent to endorse Christianity. The County argued that only the latest display mattered, and the Court shouldn’t consider the history of how they came up with it. Justice Souter disagreed:

But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.

I think of McCready County’s religious displays (and the Muslim ban) like the carousing husband who believes his wife should be happy because he’s cleaned up all the telltale signs that have made her mad in the past: “I brushed the long hair off my suit, I cleaned the lipstick off my collar, I used mints to cover the alcohol on my breath … what do you want from me?”


Meanwhile, the 9th Circuit Court of Appeals as a whole decided not to reconsider the decision of the three-judge panel of its members who blocked the original executive order. But five of the 25 active judges signed an opinion denouncing that ruling. The opinion was written by Jay Bybee, who you may remember from his previous job: As Deputy Assistant Attorney General under George W. Bush, he signed the famous “torture memos” that OK’d waterboarding and other “enhanced interrogation” techniques. (We’re never going to forget that, Jay. If you live to be 100, the headline on your obituary will still read: “Signer of Torture Memos Dies”.)


On the Lawfare blog, Benjamin Wittes of the Brookings Institute has an interesting analysis: He thinks judges are giving less deference to Trump than they would to an ordinary president, because they see him as untrustworthy.

Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.

In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?


And finally, speaking of crazy people, Mike Huckabee thinks Trump should just ignore the court orders, like Andrew Jackson did when he expelled the Cherokee nation from Georgia.

One measure of how far wrong things have gone is the number of shameful episodes in American history that are being cited as precedents. Here: the Trail of Tears. Previously, the Japanese internment as justification for a national Muslim registry.

Poor People Need BETTER Health Insurance than the Rest of Us, Not Worse

In every other aspect of life, we assume that the poor can get by with fewer goods of lower quality than the rest of us consume. But when it comes to health insurance, the exact opposite is true.


One common assumption runs through all our anti-poverty programs: The poor and less well-to-do don’t need to live as well as the rest of us. So public housing consists largely of small, poorly appointed apartments in bad neighborhoods, not mansions or suburban ranch houses. It is considered scandalous if food stamps are used to buy luxury foods like steak or lobster, and several states have put long lists of restrictions on how welfare benefits can be spent (even if there’s little evidence they were ever being spent that way). Conservative media often expresses surprise at how many poor families have ordinary modern conveniences like refrigerators and dishwashers, not to mention Xboxes or iPhones.

In its extreme manifestations this attitude becomes petty, but there is also some widely held common sense behind it: If I’m going to pay taxes to support someone else’s lifestyle, at the very least they shouldn’t live better than I do.

So it’s no surprise that the same idea has percolated through to healthcare policy. It’s not controversial that Medicaid patients lack the same choice of doctors as the rest of us, and may have to wait longer for an appointment. And when ObamaCare offered to subsidize health insurance for families with incomes beyond the Medicaid cut-off (which it tried to increase, but was thwarted in 19 states), the fact that many families could now only afford “bronze” plans, with high co-pays and deductibles, wasn’t a big issue: Shouldn’t they be happy to have health insurance at all?

Now that Republicans control Congress and the presidency, even ObamaCare’s bronze plans are considered too luxurious. Their ObamaCare replacement bill calls for the Medicaid extension to be phased out beginning in 2020, and its block-grant provision puts financial pressure on states to throw more and more people off of Medicaid as the years go by. Health-insurance subsidies for the working poor and lower middle class will be turned into tax credits based on age, not income, and generally made smaller. Regulations will be relaxed so that insurance companies can offer plans with fewer benefits and higher co-pays and deductibles — and presumably lower premiums. Economic necessity will force many low-income families (who will have less government help) into these low-premium, low-benefit, high-co-pay policies, or to forego health insurance altogether.

For many middle-class and upper-class Americans, these facts do not set off alarm bells. After all, it’s just common sense that the poorer people have to get by with less. What’s the advantage of making money if those with lower incomes get the same quality of health insurance we have?

In this article I want to argue that health insurance is a unique commodity, and in this instance our common sense is just wrong: The poorer you are, the better your health insurance needs to be. In this one situation, it’s the poor who should get the mansions and lobsters, while the rest of us occasionally make do with less.

I understand how outrageous that sounds. And in order explain why, I’m going to have to back up and explain the basic logic of insurance in general.

1. Even good insurance is usually a bad deal. The first thing to understand about insurance is that, if it’s going to work at all, it has to be a bad deal for most of the people involved.

That’s easiest to see in the case of fire insurance. The reason fire insurance works is that most people’s houses never burn down. If that weren’t true, if houses were burning down left and right, then insurance companies would have to charge astronomical rates that most people couldn’t afford. But it is true, so fire insurance is affordable.

My parents, for example, were homeowners for almost 60 years, and never filed a fire-insurance claim. Year after year, they paid the insurance company, and the insurance company never paid them. What a crummy deal!

Most homeowners are like that. And even the ones who do file a claim or two in their lifetimes probably still lose out: They have a little kitchen fire that requires replacing some cabinets and countertops — but nothing like the value of a lifetime’s worth of premiums.

So fire insurance is not an investment. Unless you’re planning an arson fraud, you don’t buy it expecting to come out ahead.

Even so, it’s not a stupid thing to do. The reason you buy fire insurance is to protect your vision of the future. The odds of your house burning down might be small, but a house is such a large portion of your net worth that losing it would be catastrophic. Without insurance, not only couldn’t most people rebuild anything like their original home, but everything else they had planned to do with their money — retire, pay for their kids’ education, and so on — would be up in smoke as well. The life they had envisioned before the fire would be over.

2. How much insurance you need depends on how tight your finances are. Whenever you buy an electronic gadget, the store will also try to sell you some kind of insurance. Maybe they’ll call it a “buyer’s protection plan” or an “extended warranty”, but basically it’s insurance: If something bad happens to your new phone or computer or TV, they’ll replace it.

Like all insurance, it’s a bad deal for most people. Unless you’re incredibly unlucky or accident-prone, over your lifetime you’d be better off saving up that extended-warranty money and replacing broken gadgets yourself.

But there’s a situation where you might want to pay for the insurance anyway: Imagine you’re buying a very expensive camera to start your own photography business. You’ve stretched yourself really tight to start this business, so tight that if that camera broke, you wouldn’t be able to replace it and your fledgling business would go down the tubes. Now camera insurance starts to resemble fire insurance on your house: You need it to protect your vision of the future.

In general, the right question to ask when you’re thinking about insurance is: “If I don’t have insurance and the Bad Thing happens, what happens next?” If the answer is: “I’ll replace what I’ve lost and life will go on as before”, then you don’t need insurance. But if it’s “Important aspects of my vision of the future will have to change”, you do. So a typical middle-class American doesn’t need an extended warranty on a $100 camera, but does need fire insurance on a house.

3. If you’re rich, you can do without. This aspect of insurance is hard to wrap your mind around, because it works backwards from most of the other expenses in life. For most goods and services, you expect that if you got richer you’d buy the higher-priced version. If you’re living on mac-and-cheese now, you imagine that if you got rich you’d eat filet mignon. You’d trade in your 10-year-old rust-bucket for a new BMW. The apartment you share with friends would become a sprawling private mansion, and so on. You don’t picture doing without anything.

But rich people can afford to forego insurance that poor and middle-class people need. Think about it: If you own ten houses and can afford to buy ten more, why should you insure any of them? If one of them burns down, it’s like the $100 camera: you’ll just replace it and life will go on. Insurance is a bad deal you can afford not to make.

One place where middle-class people run into this consideration is with collision deductibles on their car insurance. If you have a high deductible, you’re essentially buying less insurance, so your premiums go down. If you can go a number of years without an accident and put aside what you save in premiums, you’ll easily cover a higher deductible.

So a high deductible is a good deal if you can afford it. If you have the money lying around, a $1,000 deductible on your repair bill can be an annoyance soon forgotten. But for the working poor and even many in the middle class, an unexpected $1,000 expense can be catastrophic: You can’t repair the car at all, and then you can’t get to work, and then your life spirals down the drain of poverty.

So a well-to-do person can afford to have less insurance, but a lower-income person needs more.

4. No matter what you owe, bankrupt is bankrupt. For someone who doesn’t have sufficient savings or credit, high-deductible collision insurance can be as bad as no insurance at all. Where a middle-class person might pay $1,000 of a $10,000 repair and be glad to have insurance, a minimum-wage worker could be driven into bankruptcy by a $1,000 expense just as surely as by a $10,000 expense. And bankrupt is bankrupt, so the difference between no insurance and high-deductible insurance becomes completely invisible.

5. Poor people’s bodies work just like rich people’s bodies. One thing that hides poorer people’s greater need for insurance is that richer people own more expensive stuff. So even though a millionaire family could replace an ordinary middle-class house without breaking a sweat, it probably lives in a well-furnished-and-decorated mansion that it can’t easily replace. Ditto for the new Mercedes compared to a burger-flipper’s aging Ford. So even though the rich have many more resources with which to replace losses, the increased scale of their possible losses means that they probably spend more on insurance than the poor do.

But that reasoning doesn’t apply when you talk about health insurance. A rich guy’s body works just like a poor guy’s body. It’s prone to the same diseases and accidents and breakdowns. (Maybe more, because poor neighborhoods are likely to be more polluted, and low-paying jobs are often riskier than high-paying jobs. Not many mine owners have died of black lung disease.) If she’s going to have the same chance to survive, a poor woman’s breast cancer needs the same treatments as a rich woman’s, and those treatments cost just as much to provide.

6. What is real health insurance? Having health insurance should mean that your vision of your financial future is protected against a health catastrophe. In other words, if you get sick:

  • You get the care you need.
  • You don’t go bankrupt paying for it.

(Even if you get the care you need, you still might die or wind up unable to work, and that might wreck your vision of your family’s future. But that’s death and disability insurance, which is different topic.)

Most discussions of the Affordable Care Act (a.k.a. ObamaCare) center on the number of uninsured: By some estimates there were 49 million Americans uninsured before the ACA, and that number has come down by something like 20-25 million. Similarly, the percentage of Americans who tell Gallup that they’re uninsured has dropped from 18% in 2013 (before ObamaCare fully took effect) to 10.9% at the end of 2016.

What the uninsured rate ignores, though, is that many of the people who thought they were insured before the ACA only had insurance only up to a point. Millions had policies with annual or lifetime caps on the benefits, or provisions that allowed the insurance company to drop them if they got too sick. In other words, they were covered if they broke a leg slipping on the ice, but they still faced bankruptcy if they waged a multi-year battle with cancer or an expensive chronic disease like MS or HIV.

The best article about this is a Time cover story from March, 2009: Time‘s reporter on the healthcare-reform beat, Karen Tumulty, recounted how her brother thought he was insured until he was diagnosed with a chronic kidney disease.

When we talk about health-care reform, we usually start with the problem of the roughly 45 million (and rising) uninsured Americans who have no health coverage at all. But [Tumulty’s brother] Pat represents the shadow problem facing an additional 25 million people who spend more than 10% of their income on out-of-pocket medical costs. They are the underinsured, who may be all the more vulnerable because, until a health catastrophe hits, they’re often blind to the danger they’re in.

… While Pat had been continuously covered since 2002 by the same company, Assurant Health, each successive policy treated him as a brand-new customer. In looking back over Pat’s medical records, the company noticed test results from December, eight months earlier. Though Pat’s doctors didn’t determine the precise cause of the problem until the following July, his kidney disease was nonetheless judged a “pre-existing condition” — meaning his insurance wouldn’t cover it, since he was now under a different six-month policy from the one he had when he got those first tests.

The ACA did several things to turn kinda-sorta insurance like this into real insurance: eliminate caps and cancellations, as well as waivers that allowed insurance not to pay for pre-existing conditions. But there’s still a flaw.

7. Deductibles and co-pays. Just like car insurance, a healthcare policy might have a deductible: The company will only start paying after you’ve covered the first $500 or $5000 of your healthcare expenses for the year. The policy might also require co-pays: If you have 10% co-pay and run up a $1000 bill, you have to pay $100 of it.

Put together, those are called “out-of-pocket costs”, and they work just like the deductible on your car insurance: By accepting a higher out-of-pocket cost, you’re buying less insurance, so you’ll be charged a smaller premium.

And since insurance is a bad deal for most people, buying less insurance is a good deal for most people if you can afford it.

If you’re a middle-aged middle-class person and you have to pay the first $5,000 of the $200,000 treatments that cure your cancer, you’ll use the money you were saving for your next car or vacation, or get a home equity loan, or tap your IRA — and thank God you have insurance. If you’re too young to have established yourself financially yet, maybe you’ll stretch your credit cards and your middle-class parents will have to pitch in, but you’ll cover the $5,000 somehow.

Now suppose you’re a minimum-wage worker with no savings, no house, no credit, and no IRA, whose parents are in no better financial shape. To you, $5,000 is an astronomical sum; you can’t pay it, so you’ll have to go bankrupt. And bankrupt is bankrupt, whether it’s for $5,000 or $200,000.

So financially, your insurance has done you no good at all.

8. What does “affordable” really mean? ObamaCare caps out-of-pocket costs, but at a level that can be unapproachable for the working poor and lower-middle-class. The 2017 out-of-pocket limit is $7,150 for an individual or $14,300 for a family. That’s fine if you’re healthy, reasonably well off, and could afford a lower-out-of-pocket plan, but figure that you’ll come out ahead in the long run by buying less insurance. But if you’re forced into that plan because that’s the largest premium you can cover, you’re in a Catch-22: The only plan you can afford to pay the premiums on is one that you can’t afford to use.

Fortunately, the designers of ObamaCare took that into account (at least up to a point).  If your income is below a certain level — currently $29,700 for an individual and $60,750 for a family of four, increasing with each additional family member — you qualify for an additional out-of-pocket cost reduction: Below 4/5 of that number, the 2015 limit was $2,250 for an individual and $4,500 for a family, then increasing to $5,200 and $10,400. (Presumably, the 2017 limit has gone up with inflation, but I couldn’t lay my hands on it.)

I still have trouble imagining how a person making $23,760 a year comes up with $2,250, but at least it’s less than $7,150.

But that reduction is part of the income-based subsidies that are going away under TrumpCare. (This was hard to track down, but the web site ObamaCareFacts.com has a TrumpCare page that says: “The bill … gets rid of out-of-pocket cost assistance.”) So if you could imagine someone near the federal poverty limit wriggling through the Catch-22 of ObamaCare, that door is shut under TrumpCare.

9. TrumpCare slams the door on the working poor. For now, the very poor still have Medicaid, which is designed to have low out-of-pocket costs. But TrumpCare eventually jettisons federal responsibility for Medicaid, instead giving the states block grants whose value will not keep up with healthcare inflation. So whether Medicaid will remain as usable as it is now will depend on what state you’re in.

But those just above the Medicaid level — the people who get subsidies in the ObamaCare markets now — are going to wind up without usable insurance. Because they are less well off than the average American, their need for insurance is greater: They need not just coverage, but coverage whose out-of-pocket costs they can handle. A policy that would be fine for a rich or middle-class family will do them no good at all.

The relaxed regulations on coverages and out-of-pocket costs will probably bring premiums down somewhat, but that will only create the illusion of health insurance. Many will still face the horrible choice between foregoing treatment and going bankrupt. In other words, they won’t really be insured at all.