Category Archives: Articles

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.

Jobs, Income, and the Future

What “the jobs problem” is depends on how far into the future you’re looking. Near-term, macroeconomic policy should suffice to create enough jobs. But long-term, employing everyone may be unrealistic, and a basic income program might be necessary. That will be such a change in our social psychology that we need to start preparing for it now.


Historical context. The first thing to recognize about unemployment is that it’s not a natural problem. Tribal hunter-gatherer cultures have no notion of it. No matter how tough survival might be during droughts or other hard times, nothing stops hunter-gatherers from continuing to hunt and gather. The tribe has a territory of field or forest or lake, and anyone can go to this commonly held territory to look for food.

Unemployment begins when the common territory becomes private property. Then hunting turns into poaching, gathering becomes stealing, and people who are perfectly willing to hunt or fish or gather edible plants may be forbidden to do so. At that point, those who don’t own enough land to support themselves need jobs; in other words, they need arrangements that trade their labor to an owner in exchange for access to the owned resources. The quality of such a job might vary from outright slavery to Clayton Kershaw’s nine-figure contract to pitch for the Dodgers, but the structure is the same: Somebody else owns the productive enterprise, and non-owners needs to acquire the owner’s permission to participate in it.

So even if unemployment is not an inevitable part of the human condition, it is as old as private property. Beggars — people who have neither land nor jobs — appear in the Bible and other ancient texts.

But the nature of unemployment changed with Industrial Revolution. With the development and continuous improvement of machines powered by rivers or steam or electricity, jobs in various human trades began to vanish; you might learn a promising trade (like spinning or weaving) in your youth, only to see that trade become obsolete in your lifetime.

So if the problem of technological unemployment is not exactly ancient, it’s still been around for centuries. As far back as 1819, the economist Jean Charles Léonard de Sismondi was wondering how far this process might go. With tongue in cheek he postulated one “ideal” future:

In truth then, there is nothing more to wish for than that the king, remaining alone on the island, by constantly turning a crank, might produce, through automata, all the output of England.

This possibility raises an obvious question: What, then, could the English people offer the king (or whichever oligarchy ended up owning the automata) in exchange for their livelihoods?

Maslow. What has kept that dystopian scenario from becoming reality is, basically, Maslow’s hierarchy of needs. As basic food, clothing, and shelter become easier and easier to provide, people develop other desires that are less easy to satisfy. Wikipedia estimates that currently only 2% of American workers are employed in agriculture, compared to 50% in 1870 and probably over 90% in colonial times. But those displaced 48% or 88% are not idle. They install air conditioners, design computer games, perform plastic surgery, and provide many other products and services our ancestors never knew they could want.

So although technology has continued to put people out of work — the railroads pushed out the stagecoach and steamboat operators, cars drastically lessened opportunities for stableboys and horse-breeders, and machines of all sorts displaced one set of skilled craftsmen after another — new professions have constantly emerged to take up the slack. The trade-off has never been one-for-one, and the new jobs have usually gone to different people than the ones whose trades became obsolete.  But in the economy as a whole, the unemployment problem has mostly remained manageable.

Three myths. We commonly tell three falsehoods about this march of technology: First, that the new technologies themselves directly create the new jobs. But to the extent they do, they don’t create nearly enough of them. For example, factories that manufacture combines and other agricultural machinery do employ some assembly-line workers, but not nearly as many people as worked in the fields in the pre-mechanized era.

When the new jobs do arise, it is indirectly, through the general working of the economy satisfying new desires, which may have only a tangential relationship to the new technologies. The telephone puts messenger-boys out of business, and also enables the creation of jobs in pizza delivery. But messenger-boys don’t automatically get pizza-delivery jobs; they go into the general pool of the unemployed, and entrepreneurs who create new industries draw their workers from that pool. At times there may be a considerable lag between the old jobs going away and the new jobs appearing.

Second, the new jobs haven’t always required more education and skill than the old ones. One of the key points of Harry Braverman’s 1974 classic Labor and Monopoly Capital: the degradation of work in the 20th century was that automation typically bifurcates the workforce into people who need to know a lot and people who need to know very little. Maybe building the first mechanized shoe factory required more knowledge and skill than a medieval cobbler had, but the operators of those machines needed considerably less knowledge and skill. The point of machinery was never just that it replaced human muscle-power with horsepower or waterpower or fossil fuels, but also that once the craftsman’s knowledge had been built into a machine, low-skill workers could replace high-skill workers.

And finally, technological progress by itself doesn’t always lead to general prosperity. It increases productivity, but that’s not the same thing. A technologically advanced economy can produce goods with less labor, so one possible outcome is that it could produce more goods for everybody. But it could also produce the same goods with less labor, or even fewer goods with much less labor. In Sismondi’s Dystopia, for example, why won’t the king stop turning his crank as soon as he has all the goods he wants, and leave everyone else to starve?

So whether a technological society is rich or not depends on social and political factors as much as economic ones. If a small number of people wind up owning the machines, patents, copyrights, and market platforms, the main thing technology will produce is massive inequality. What keeps that from happening is political change: progressive taxation, the social safety net, unions, shorter work-weeks, public education, minimum wages, and so on.

The easiest way to grasp this reality is to read Dickens: In his day, London was the most technologically advanced city in the world, but because political change hadn’t caught up, it was a hellhole for a large chunk of its population.

The fate of horses. Given the long history of technological unemployment, it’s tempting to see the current wave as just more of the same. Too bad for the stock brokers put out of work by automated internet stock-trading, but they’ll land somewhere. And if they don’t, they won’t wreck the economy any more than the obsolete clipper-ship captains did.

But what’s different about rising technologies like robotics and artificial intelligence is that they don’t bifurcate the workforce any more: To a large extent, the unskilled labor just goes away. The shoe factory replaced cobblers with machine designers and assembly-line workers. But now picture an economy where you get new shoes by sending a scan of your feet to a web site which 3D-prints the shoes, packages them automatically, and then ships them to you via airborne drone or driverless delivery truck. There might be shoe designers or computer programmers back there someplace, but once the system is built, the amount of extra labor your order requires is zero.

In A Farewell to Alms, Gregory Clark draws this ominous parallel: In 1901, the British economy required more than 3 million working horses. Those jobs are done by machines now, and the UK maintains a far smaller number of horses (about 800K) for almost entirely recreational purposes.

There was always a wage at which all these horses could have remained employed. But that wage was so low that it did not pay for their feed.

By now, there is literally nothing that three million British horses can do more economically than machines. Could the same thing happen to humans? Maybe it will be a very long time before an AI can write a more riveting novel than Stephen King, but how many of us still have a genuinely irreplacable talent?

Currently, the U.S. economy has something like 150 million jobs for humans. What if, at some point in the not-so-distant future, there is literally nothing of economic value that 150 million people can do better than some automated system?

Speed of adjustment. The counter-argument is subtle, but not without merit: You shouldn’t let your attention get transfixed by the new systems, because new systems never directly create as many jobs as they destroy. Most new jobs won’t come from maintaining 3D printers or manufacturing drones or programming driverless cars, they’ll come indirectly via Maslow’s hierarchy: People who get their old wants satisfied more easily will start to want new things, some of which will still require people. Properly managed, the economy can keep growing until all the people who need jobs have them.

The problem with that argument is speed. If technology were just a one-time burst, then no matter how big the revolution was, eventually our desires would grow to absorb the new productivity. But technology is continually improving, and could even be accelerating. And even though we humans are a greedy lot, we’re also creatures of habit. If the iPhone 117 hits the market a week after I got my new iPhone 116, maybe I won’t learn to appreciate its new features until the iPhone 118, 119, and 120 are already obsolete.

Or, to put the same idea in a historical context, what if technology had given us clipper ships on Monday, steamships on Tuesday, and 747s by Friday? Who would we have employed to do what?

You could imagine, then, a future where we constantly do want new things that employ people in new ways, but still the economy’s ability to create jobs keeps falling farther behind. Since we’re only human, we won’t have time either to appreciate the new possibilities technology offers us, or to learn the new skills we need to find jobs in those new industries — at least not before they also become obsolete.

Macroeconomics. Right now, though, we are still far from the situation where there’s nothing the unemployed could possibly do. Lots of things that need doing aren’t getting done, even as people who might do them are unemployed: Our roads and bridges are decaying. We need to prepare for climate change by insulating our buildings better and installing more solar panels. The electrical grid is vulnerable and doesn’t let us take advantage of the most efficient power-managing technologies. Addicts who want treatment aren’t getting it. Working parents need better daycare options. Students could benefit from more one-on-one or small-group attention from teachers. Hospital patients would like to see their nurses come around more often and respond to the call buttons more quickly. Many of our elderly are warehoused in inadequately staffed institutions.

Some inadequate staffing we’ve just gotten used to: We expect long lines at the DMV, and that it might take a while to catch a waitress’ eye. In stores, it’s hard to get anybody to answer your questions. But that’s just life, we think.

That combination of unmet needs and unemployed people isn’t a technological problem, it’s an economic problem. In other words, the problem is about money, not about what is or isn’t physically possible. Either the people with needs don’t have enough money to create effective demand in the market, or the workers who might satisfy the needs can’t afford the training they need, or the businessmen who might connect workers with consumers can’t raise the capital to get started.

One solution is for the Federal Reserve to create more money. At Vox, Timothy Lee writes:

When society invents a new technology that makes workers more efficient, it has two options: It can employ the same number of workers and produce more goods and services, or it can employ fewer workers to produce the same number of goods and services.

Jargon-filled media coverage makes this hard to see, but the Federal Reserve plays a central role in this decision. When the Fed pumps more money into the economy, people spend more and create more jobs. If the Fed fails to supply enough cash, then faster technological progress can lead to faster job losses — something we might be experiencing right now.

So if you’re worried that technological progress will lead to mass unemployment — and especially if you think this process is already underway — you should be very interested in what the Federal Reserve does.

Another option is for the government to directly subsidize the people whose needs would otherwise go unmet. That’s what the Affordable Care Act and Medicaid do: They subsidize healthcare for people who need it but otherwise couldn’t afford it, and so create jobs for doctors, nurses, and the people who manufacture drugs, devices, and the other stuff used in healthcare.

Finally, the government can directly invest in industries that otherwise can’t raise capital. The best model here is the New Deal’s investment in the rural electric co-ops that brought electricity to sparsely populated areas. It’s also what happens when governments build roads or mass-transit systems.

When you look at things this way, you realize that our recent job problems have as much to do with conservative macroeconomic policy as with technology. Since Reagan, we’ve been weakening all the political tools that distribute the benefits of productivity: progressive taxation, the social safety net, unions, shorter work-weeks, public education, the minimum wage. And the result has been exactly what we should have expected: For decades, increases in national wealth have gone almost entirely to owners rather than workers.

In short, we’ve been moving back towards Dickensian London.

The long-term jobs problem. But just because the Robot Apocalypse isn’t the sole source of our immediate unemployment problem, that doesn’t mean it’s not waiting in the middle-to-far future. Our children or grandchildren might well live in a world where the average person is economically superfluous, and only the rare genius has any marketable skills.

The main thing to realize about this future is that its problems are more social and psychological than economic. If we can solve the economic problem of distributing all this machine-created wealth, we could be talking about the Garden of Eden, or various visions of hunter-gatherer Heaven. People could spend their lives pursuing pleasure and other forms of satisfaction, without needing to work. But if we don’t solve the distribution problem, we could wind up in Sismondi’s Dystopia, where it’s up to the owners of the automata whether the rest of us live or die.

The solution to the economic problem is obvious: People need to receive some kind of basic income, whether their activities have any market value or not. The obvious question “Where will the money for this come from?” has an obvious answer “From the surplus productivity that makes their economic contribution unnecessary.” In the same way that we can feed everybody now (and export food) with only 2% of our population working in agriculture, across-the-board productivity could create enough wealth to support everyone at a decent level with only some small number of people working.

But the social/psychological problem is harder. Kurt Vonnegut was already exploring this in his 1952 novel Player Piano. People don’t just get money from their work, they get their identities and senses of self-worth. For example, coal miners of that era may not have wanted to spend their days underground breathing coal dust and getting black lung disease, but many probably felt a sense of heroism in making these sacrifices to support their families and to give their children better opportunities. If they had suddenly all been replaced by machines and pensioned off, they could have achieved those same results with their pension money. But why, an ex-miner might wonder, should anyone love or appreciate him, rather than just his unearned money?

Like unemployment itself, the idea that the unemployed are worthless goes way back. St. Paul wrote:

This we commanded you, that if any would not work, neither should he eat.

It’s worth noticing, though, that many people are already successfully dealing with this psycho-social problem. Scions of rich families only work if they want to, and many of them seem quite happy. Millions of Americans are pleasantly retired, living off a combination of savings and Social Security. Millions of others are students, who may be working quite hard, but at things that have no current economic value. Housespouses work, but not at jobs that pay wages.

Countless people who have wage-paying jobs derive their identities from some other part of their lives: Whatever they might be doing for money, they see themselves as novelists, musicians, chess players, political activists, evangelists, long-distance runners, or bloggers. Giving them a work-free income would just enable them to do more of what they see as their calling.

Conservative and liberal views of basic income. If you talk to liberals about basic income, the conversation quickly shifts to all the marvelous things they would do themselves if they didn’t have to work. Conservatives may well have similar ambitions, but their attention quickly shifts to other people, who they are sure would lead soulless lives of drunken society-destroying hedonism. (This is similar to the split a century ago over Prohibition: Virtually no one thought that they themselves needed the government to protect them from the temptation of gin, but many believed that other people did.)

So far this argument is almost entirely speculative, with both sides arguing about what they imagine would happen based on their general ideas about human nature. However, we may get some experimental results before long.

GiveDirectly is an upstart charity funded by Silicon Valley money, and it has tossed aside the old teach-a-man-to-fish model of third-world aid in favor of the direct approach: Poor people lack money, so give them money. It has a plan to provide a poverty-avoiding basic income — about $22 a month — for 12 years to everybody in 40 poor villages in Kenya. Another 80 villages will get a 2-year basic income. Will this liberate the recipients’ creativity? Or trap them in soul-destroying dependence and rob them of self esteem?

My guess: a little bit of both, depending on who you look at. And both sides will feel vindicated by that outcome. We see that already in American programs like food stamps. For some conservatives, the fact that cheating exists at all invalidates the whole effort; that one guy laughing at us as he eats his subsidized lobster outweighs all the kids who now go to school with breakfast in their stomachs. Liberals may look at the same facts and come to the opposite conclusion: If I get to help some people who really need it, what does it matter if a few lazy lowlifes get a free ride?

So I’ll bet some of the Kenyans will gamble away their money or use it to stay permanently stoned, while others will finally get a little breathing room, escape self-reinforcing poverty traps, and make something of their lives. Which outcome matters to you?

Summing up. In the short run, there will be no Robot Apocalypse as long as we regain our understanding of macroeconomics. But we need to recognize that technological change combines badly with free-market dogma, leading to Dickensian London: Comparatively few people own the new technologies, so they capture the benefits while the rest of us lose our bargaining power as we become less and less necessary.

However, we’re still at the point in history where most people’s efforts have genuine economic value, and many things that people could do still need doing. So by using macroeconomic tools like progressive taxation, public investment, and money creation, the economy can expand so that technological productivity leads to more goods and services for all, rather than a drastic loss of jobs and livelihoods for most while a few become wealthy on a previously unheard-of scale.

At some point, though, we’re going to lose our competition with artificial intelligence and go the way of horses — at least economically. Maybe you believe that AIs will never be able to compete with your work as a psychotherapist, a minister, or a poet, but chess masters and truck drivers used to think that too. Sooner or later, it will happen.

Adjusting to that new reality will require not just economic and political change, but social and psychological change as well. Somehow, we will need to make meaningful lives for ourselves in a work-free technological Garden of Eden. When I put it that way, it sounds easy, but when you picture it in detail, it’s not. We will all need to attach our self-respect and self-esteem to something other than pulling our weight economically.

In the middle-term, there are things we can do to adjust: We should be on the lookout for other roles like student and retiree, that give people a socially acceptable story to tell about themselves even if they’re not earning a paycheck. Maybe the academic idea of a sabbatical needs to expand to the larger economy: Whatever you do, you should take a year or so off every decade. “I’m on sabbatical” might become a story more widely acceptable than “I’m unemployed.” College professors and ministers are expected to take sabbaticals; it’s the ones who don’t who have something to explain.

Already-existing trends that lower the workforce, like retraining mid-career or retiring early, need to be celebrated rather than worried about. In the long run the workforce is going to go down; that can be either a source of suffering or a cause for rejoicing, depending on how we construct it.

Most of all, we need to re-examine the stereotypes we attach to the unemployed: They are lazy, undeserving, and useless. These stereotypes become self-fulfilling prophecies: If no one is willing to pay me, why shouldn’t I be useless?

Social roles are what we make them. The Bible does not report Adam and Eve feeling useless and purposeless in the Garden of Eden, and I suspect hunter-gatherer tribes that happened onto lands of plentiful game and endless forest handled that bounty relatively well. We could to the same. Or not.

The Peril of Potemkin Democracy

Trump doesn’t have to be Hitler to bring an end to the Republic.


One of the most difficult puzzles of the Trump administration is figuring out which dystopian scenario to worry about. Depending on who you listen to, everything Trump does is a feint meant to misdirect us away from the main threat, which is somewhere else.

Maybe Kellyanne Conway’s “alternative facts“, Stephen Miller’s assertion that the president’s power “will not be questioned“, or the president’s own declaration that CNN and the other mainstream news sources are “enemies of the American People” are assaults on the fundamental basis of democratic governance, or maybe they’re shiny objects intended to distract the press from digging into Trump’s radical appointments. Or maybe putting a buffoon like Rick Perry in charge of our nuclear energy programs is itself meant to split Congress on partisan lines so that neither party will get around to investigating Trump’s relationship with Russia. Maybe Russia is a red herring, and we ought to be paying attention to all the ways Trump and his cronies are setting themselves up to profit from his presidency. Or maybe the profiteering is small potatoes next to the alt-right influence of Steve Bannon, whose prophecy of a global war with Islam might be self-fulfilling if Islamophobic policies like the Muslim ban recruit enough young people into terrorism. Or maybe the Muslim ban is just a stalking horse meant to produce a clash with the judiciary, which Trump hopes to crush in the ensuing constitutional crisis.

I could keep going. Like a comic-book villain, Trump seems to be advancing towards the Apocalypse in all directions at once. Does that mean all roads need to be guarded equally? Or are all but one or two of the threats just distractions intended to split opposition forces? Is each proposal just the first step on a long march towards tyranny? Or is Trump like any other new president, checking off boxes on his list of campaign promises and hoping his various constituencies will be satisfied with a few symbolic baubles, so he can eventually focus on the things he really cares about? And what are those things?

Uncertainty of threat leads to uncertainty of response. Should we focus on throwing Trump’s allies out of Congress in 2018, or will that be too little too late? Right now, should we be calling our congresspeople? Marching in the streets? Planning our escape to Canada or Sweden? Or stockpiling arms for the inevitable civil war? Is paranoia making you worry too much? Or is denial making you too complacent?

A key point in Trumpian strategy is to keep your opponents rattled, and in that he is definitely succeeding. Probably the best line in SNL’s People’s Court skit wasn’t trying to be funny at all. The judge says: “I want one day without a CNN alert that scares the hell out of me.” Lots of us do.

So, acknowledging the uncertainties and the twin risks of paranoia and complacency, let’s see if we unrattle ourselves and focus our concern in the right places.

Why do people do what they do? This observation isn’t terribly deep, but it does help organize my analysis: What people do is always a combination of what they intend and the opportunities they happen across. For example, some people are in the careers they’ve pictured since they were kids, while others went wherever the jobs were when they graduated. Two people might work across a desk from each other, but one got there through a long-term plan and the other happened into it.

World leaders are the same way: They do some things because that’s why they set out to become world leaders in the first place. They do other things because the opportunity presents itself or some situation thrusts itself upon them. Lyndon Johnson launched the Great Society because that’s what he always wanted to do; he saw himself as a protege of FDR, so he wanted to be remembered as the president who completed the New Deal. But his response to an unanticipated challenge also made him the Vietnam War president.

So there are two parts to figuring out what to fear from Trump. First, what drives him, so that he will set out to make it happen? And second, where are the opportunities he might try to exploit?

Drives. Let me start by saying that I’ve never met Donald Trump, so all my opinions about him come at a distance. But at the same time, he has been in the public eye for decades and hasn’t exactly hidden his personality, so I’m not just shooting blind.

My take on Trump is that his drives are all personal, and he has no fixed political goals at all. This is the biggest reason why comparisons to Hitler are misguided. Hitler was ideological. Any unscrupulous German politician might have opportunistically used anti-Semitism to rabble-rouse. But Hitler was so identified with it that he carried out the Final Solution in secret, and speeded it up as the war began to go badly. He seemed haunted by the idea that he might lose power before he finished his genocide. Similarly, he was always planning to attack Russia; the German people needed to expand in the east at the expense of the racially inferior Slavs.

You’ll search in vain for any similar fixed political goals, good or bad, in Trump. He’s been both pro- and anti-abortion. He’s been a libertine and the candidate of the Religious Right. He was for the Iraq War until he decided he had always been against it. During the campaign, his policy prescriptions were all over the map: The government spends too much, but should start a massive infrastructure project. It should both get out of healthcare and make sure everybody gets covered. He is simultaneously a hawk and an isolationist, a champion of both the working stiff and the billionaire who keeps wages low.

One reason Congress is so frozen at the moment is that even after face-to-face meetings where public pandering can be put aside, Ryan and McConnell still have no idea what Trump really wants them to do. Even ObamaCare repeal — which every Republican from Trump on down pledged to do on Day 1 — is frozen, largely because Trump has not committed himself. He has left Congress to face the real-life difficulties of healthcare, while he floats vaguely above them, ready to tweet out his wrath if Congress’ program doesn’t fulfill his impossible promises.

But Trump is a bundle of personal drives: He wants to be the center of attention, to be admired and idolized. He needs to win, to never be wrong, and to be better than whoever people might compare him to. Fame and TV ratings and crowds are a few ways he measures his success, but the biggest is money and the appearance of money.

Politics is just another game that he can win, and so prove his superiority. And if being president also makes him a lot of money, that’s a double win. Everything else is just a move in that game. Does he hate Muslims or Mexicans? Not really, I think. But a lot of people do, and they’ll cheer for him if he says and does anti-Muslim or anti-Mexican stuff.

While he is not ideologically racist, he is favorably inclined towards any argument that justifies his own superiority. In practice, that can sometimes lead to the same result. Sexism, I believe, runs a little deeper: Women are simultaneously individuals to be dominated as well as chips in his competition with other men. Being shown up grates on him, but being shown up by a woman is doubly galling.

What I don’t see in him is an urge to remake society in his own image. He has no vision like a thousand-year Reich, a new Soviet man, or anything else that would lead to a micro-managed totalitarian system.

The opportunity that doesn’t exist. Even if Trump didn’t intend to go there, you might still imagine him opportunistically drifting into a Hitler-shaped or Stalin-shaped hole in American society. I firmly believe that there is no such hole. The 21st-century authoritarian model is quite different (as we’ll discuss below).

Germany in 1933 and Russia in 1917 were both countries in great economic distress, dealing with the aftermath of a humiliating defeat in war. Both had nostalgia for a former era when a strong ruler was firmly in charge.

Trump’s appeal is based on a dim echo of that situation. Many Americans are disappointed in their economic prospects, but compared to Depression-era Germany, few are desperate. (Wondering whether your salary will ever justify your student loans is a world away from wondering what bread will cost next week.) America’s persistent inability to wipe out enemies in Iraq, Afghanistan, or Syria is frustrating, but doesn’t compare to Russia’s or Germany’s humiliating defeat in World War I.  Trump’s rhetoric is nostalgic, but the leaders of those warmly-recalled eras were grandfatherly men like Eisenhower or Reagan, not iron-fisted czars or kaisers.

Trump has many fans, but Trumpism runs shallow compared to Hitlerism. In 1933, virtually every part of German society had its own Nazi movement eager to take power. In 2017, it’s hard to picture what a Trumpist takeover of the universities or of California would even mean, much less who would do it or how. The difficulty Trump is having staffing his administration is a symptom of this shallowness. He won with 46% of the vote, after all, and many who voted for him were not happy about it.

The appeal of Potemkin democracy. While America as a nation is not experiencing the kind of despair and defeat that leads to totalitarianism, many groups within America have seen a long-term decline in their influence and status, with no end in sight. Many members of these groups are deeply nostalgic, and prior to Trump’s election felt the kind of hopelessness that yearns for radical change.

These are the people I described in 2012 in “The Distress of the Privileged“: whites, men, conservative Christians, native-born English-speakers, and so on. These groups have never been oppressed in America and face no prospect of it, but they used to dominate society to an extent that they no longer do. That relative loss of power feels like persecution, even if in reality it is nothing more than a loss of privilege. [1]

But many of them experience that pseudo-persecution intensely, and believe it is being thrown in their faces constantly: when their doctrines are no longer taught or their prayers recited in public schools; when they have to compete in the workplace on near-equal terms with blacks and immigrants and women; when courts take the side of gay couples against the Christians who want to discriminate against them; when they express their distress in public and do not see their problems move immediately to the top of the agenda; when history classes call attention to the flaws of their heroes, or to the contributions of members of other groups; and on many other occasions. Those who look for these insults to their pride, and seek out media that highlights and exaggerates them, can find something every day.

These are the people who make up the bulk of Trump’s base, and who will be willing to watch democracy crumble if it allows them to regain the privileges they believe are rightfully theirs. While the extreme edge of this group contains open white supremacists, theocratic Dominionists, and even self-proclaimed Nazis, for the most part its members are not that radical: They’re happy with an American-style democracy as long as they’re comfortably in the majority and the elected government favors them. That’s what they’re nostalgic for.

But as they have sunk towards minority status, more extreme methods have begun to appeal: suppressing other voters in the guise of preventing “voter fraud”, gerrymandering legislative districts so that their minority of votes can dominate Congress and the state legislatures, shutting down immigration from people not like them, suppressing protest with police violence, and so on.

For the most part, their ideal America would be a Potemkin democracy. It would have the appearance of free institutions: elections, media not directly controlled by the government, opposition politicians not in jail, and so on. But the outcomes of those elections would never be in doubt, and democratic methods would never be sufficient to achieve equality for non-whites, non-Christians, or those that white Christians disapprove of (like gays).

The autocracy model that works. In a recent article in The Atlantic, David Frum described how democracy slipped away in 21st-century countries like Hungary, South Africa, and Venezuela. The Washington Post paints a similar (if less fully developed) picture of the year-old populist government in Poland.

What has happened in Hungary since 2010 offers an example—and a blueprint for would-be strongmen. Hungary is a member state of the European Union and a signatory of the European Convention on Human Rights. It has elections and uncensored internet. Yet Hungary is ceasing to be a free country.

The transition has been nonviolent, often not even very dramatic. Opponents of the regime are not murdered or imprisoned, although many are harassed with building inspections and tax audits. If they work for the government, or for a company susceptible to government pressure, they risk their jobs by speaking out. Nonetheless, they are free to emigrate anytime they like. Those with money can even take it with them. Day in and day out, the regime works more through inducements than through intimidation. The courts are packed, and forgiving of the regime’s allies. Friends of the government win state contracts at high prices and borrow on easy terms from the central bank. Those on the inside grow rich by favoritism; those on the outside suffer from the general deterioration of the economy. As one shrewd observer told me on a recent visit, “The benefit of controlling a modern state is less the power to persecute the innocent, more the power to protect the guilty.”
Prime Minister Viktor Orbán’s rule over Hungary does depend on elections. These remain open and more or less free—at least in the sense that ballots are counted accurately. Yet they are not quite fair. Electoral rules favor incumbent power-holders in ways both obvious and subtle. Independent media lose advertising under government pressure; government allies own more and more media outlets each year. The government sustains support even in the face of bad news by artfully generating an endless sequence of controversies that leave culturally conservative Hungarians feeling misunderstood and victimized by liberals, foreigners, and Jews.

In Poland:

In merely a year, critics say, the nationalists have transformed Poland into a surreal and insular place — one where state-sponsored conspiracy theories and de facto propaganda distract the public as democracy erodes.

In the land of Law and Justice, anti-intellectualism is king. Polish scientists are aghast at proposed curriculum changes in a new education bill that would downplay evolution theory and climate change and add hours for “patriotic” history lessons. In a Facebook chat, a top equal rights official mused that Polish hotels should not be forced to provide service to black or gay customers. After the official stepped down for unrelated reasons, his successor rejected an international convention to combat violence against women because it appeared to argue against traditional gender roles.

The national broadcasting network has lost much of its independence, and the Catholic media outlets are happy with the new regime, so the overall news coverage is positive. Cosmopolitan Warsaw is dumbstruck, but in the countryside the new government is quite popular. Some say its economic policies — subsidizing couples with children and lowering the retirement age — aren’t sound in the long term, but facts and numbers aren’t making much of an impact on the public debate.

The ultimate model of a 21st-century autocrat, of course, is Vladimir Putin, whose praises Trump often sings. Putin’s situation gives him many advantages that Trump lacks: Pre-Putin Russia in many ways resembled the pre-totalitarian societies I discussed earlier, with extreme economic distress, national pride wounded by defeat in the Cold War and the collapse of its Soviet empire, and nostalgia for past dictators. But even as Putin becomes (by some accounts) the world’s richest individual, and as his hold on government is increasingly unassailable, Russia continues to have many of the trappings of democracy. There are elections, even if it’s hard to participate in them. [2] Some limited media criticism is tolerated, though sufficiently annoying critics do sometimes drop dead under suspicious circumstances. Putin even respected Russia’s presidential term-limit law, stepping into the Prime Minister’s role for a term to let someone else serve as a figurehead president.

Frum sums up:

Outside the Islamic world, the 21st century is not an era of ideology. The grand utopian visions of the 19th century have passed out of fashion. The nightmare totalitarian projects of the 20th have been overthrown or have disintegrated, leaving behind only outdated remnants: North Korea, Cuba. What is spreading today is repressive kleptocracy, led by rulers motivated by greed rather than by the deranged idealism of Hitler or Stalin or Mao. Such rulers rely less on terror and more on rule-twisting, the manipulation of information, and the co-optation of elites.

First steps. It’s not hard to find steps Trump has already taken down the Potemkin democracy path. As often as he verbally attacks CNN, there is virtually no chance of troops seizing its studios in a totalitarian coup. But Jared Kushner has already met with a high executive of CNN’s corporate master, Time Warner, to criticize CNN’s coverage of the new administration. According to The Wall Street Journal, he called out two commentators by name: Van Jones (a black) and Ana Navarro (a Nicaraguan immigrant). The implied threat is all too obvious: Billions of dollars hang on whether the Trump administration approves Time Warner’s proposed merger with AT&T.

There is no need for Trump critics like Jones or Navarro to wind up in Guantanamo. It is sufficient if he can get them shunted off to media outlets that only liberals or people of color pay attention to.

Similarly, Trump has talked about expanding the scope of libel laws to make it easier to sue news organizations. Melania is already suing one, using the lawyer that Peter Thiel used to kill Gawker. The point, apparently, is not to recover damages, but to put critics out of business.

Under the guise of “reforming the bureaucracy” or “draining the swamp”, Trump seeks to populate government service with people loyal to him rather than to the missions of their departments.

His refusal to separate himself in any meaningful way from his business empire, his lack of transparency about his finances, and his flagrant use of his position as president to promote his profit-making properties are all part of this pattern. Frum projects these trends into 2020:

Most Americans intuit that their president and his relatives have become vastly wealthier over the past four years. But rumors of graft are easy to dismiss. Because Trump has never released his tax returns, no one really knows.

The repeatability of 2016. As Trump is fond of reminding us, the experts said he couldn’t win in 2016, and they were wrong.

But it’s worth considering exactly what they were wrong about. What made Trump’s victory so implausible was that he consistently spoke to a base that was nowhere near a majority of the American people. It seemed obvious that his appeal could not translate into a majority of the votes cast.

And it didn’t: He got 46% of the vote to Hillary Clinton’s 48%, a difference of nearly three million votes. What everyone failed to see was that:

  1. The combination of sexism, a long-term build-up of anti-Hillary hype, Trump’s relentless lock-her-up negativity, and unethical meddling by Russia and the FBI would make Clinton unacceptable to enough voters that the election would be close, despite Trump’s general unpopularity.
  2. The inherent gerrymandering of the Electoral College would allow Trump to win despite being outvoted by a clear margin.

After taking office, Trump has continued to speak only to his base, which is still an electoral minority. Unsurprisingly, a whopping 55% of Americans now view him unfavorably after only one month of his presidency.

But couldn’t the same strategy work again in 2020? Given enough repetition, a sufficiently cowed media, new illicit meddling (maybe by a Trump-tamed NSA this time), and relentless efforts to smear whoever the leading Democrat turns out to be — “Pocahontas” Warren, for example — couldn’t he repeat the same trick and be re-elected with no more popularity than he had in 2016?

What to expect. What Trump wants and has always wanted is to make vast amounts of money, to be courted by his fellow billionaires, and to have the power to take revenge on those who slight him. The repressive kleptocracy model offers all that.

To stay in power — and ideally to hand power off to a chosen successor like son-in-law Kushner or daughter Ivanka — Trump must keep the loyalty of his distressed/privileged base. In order to do that, he will offer them some substantive benefits. But ultimately he has no loyalty to them, so he will consistently attempt to give them symbolic victories that cost him nothing, or to take credit for far more than he actually does. The most efficient way for him to maintain their loyalty is to keep them constantly agitated by imaginary insults from their enemies, which Trump will defend them against. [3]

That base will continue to be an ever-shrinking minority, but by making it increasingly harder for others to vote, for immigrants to enter the country, for resident aliens to become citizens, for opposition parties to bring their case to the general public, and for voting majorities to achieve actual power, Trump will endeavor to enlarge that minority’s power far beyond its numbers. In doing so, he will simply be extending and exaggerating policies the Republican Party and the conservative media have pursued for many years.

Accompanying these policies will be the constant attempt to increase public cynicism. Sure, Trump lies, Trump profits from government, Trump bends the rules in his favor, but that’s just politics. Everybody lies, everybody cheats, all news is fake.

The threat, then, isn’t that some Reichstag-fire incident will set off a well-planned takeover that overnight makes America unrecognizable. On the contrary, America in 2020 will be very recognizable, as long as you don’t look too deeply.


[1] This is not to say that some members of these groups don’t have genuine problems worthy of government help — ex-workers of dying industries in dying-industry towns, like West Virginia coal miners, for example. But even here, what thrusts them into public attention isn’t the degree of their distress, it’s that they’re native-born English-speaking white men in distress. It’s the my-problem-should-move-to-the-top-of-the agenda privilege.

Tim Wise comments:

When white people are hurting economically we’re supposed to feel their pain and “bring the jobs back” to their dying rural towns. But when people of color lack jobs in the cities (in large part because of the decline of manufacturing over 40 plus years, as well as discrimination) we tell them to “move,” to go to school and gain new skills, and we lecture them on pulling themselves up by their bootstraps because the government doesn’t owe them anything. But apparently we DO owe white coal miners and assembly line workers their jobs back because remember, out of work white men are “salt of the earth” while out of work people of color are lazy.

[2] Garry Kasparov discusses the difficulties of getting on the ballot and campaigning in Russia in his book Winter is Coming. For example, the rules require your party to have a nominating convention of a certain size, but what if no one is willing to displease the government by renting you space for it?

[3] A good example was his rally this week in Florida, which Melania opened with the Lord’s Prayer. Not only does that give conservative Christians a we’re-still-in-charge-here thrill at no cost to Trump, it allowed the pro-Trump side of the media to further their Christian-persecution narrative.

Supposedly liberals were up in arms about the prayer, but I would never have heard about it if not for Fox News’ coverage of how up-in-arms people like me are. The liberal web sites I regularly cruise didn’t find it worth mentioning. (Fox’ sources are social-media posts by ordinary people. You could find similar posts objecting to more-or-less anything that happens.)

In fact, a campaign rally is a private event, so opening it with prayer does not violate church-state separation. If Trump wants to signal to non-Christians that they are not welcome at his rallies, that’s up to him. I was not offended and I suspect very few liberals were.

White House, Inc.

How can something be a “conflict of interest” if the people who do it don’t seem conflicted about it? Josh Marshall raises a good point.

[S]top talking about ‘conflicts of interest’. Those are guide rails meant to help ethical people to stay ethical or unethical people put on a show of it. There’s no show here. Trump is openly using the Presidency as the world’s greatest marketing opportunity.

So, for example, his Mar-a-Lago Club (where he has been spending a lot of weekends and recently met with the Japanese Prime Minister) doubled its membership fees after the election, to $200K per year. It’s a direct payment for access to the president (or the appearance of access).

Melania’s defamation lawsuit against The Daily Mail is pretty explicit about the marketing opportunities she sees in being First Lady:

The economic damage to Plaintiff’s brand, and licensing, marketing and endorsement opportunities caused by publication of the Mail Online’s defamatory article is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a professional model and brand spokesman, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world.

In retrospect, wasn’t it silly of Michelle Obama to waste her eight years of fame on unmarketable causes like childhood obesity? Pity poor Lady Bird Johnson, who spent her term as FLOTUS trying to “Make American Beautiful”, or foolish Nancy Reagan, who frittered away her “once-in-a-lifetime opportunity” telling kids to “Just Say No” to drugs. How much cold, hard cash did any of them get for their efforts?

This week, Ivanka Trump’s prospects for plunder were in the spotlight. When Nordstrom’s dropped her brand because of falling sales, the President of the United States called them out. Richard Painter, who was an ethics lawyer in the Bush White House and is now at University of Minnesota, commented:

The president’s tweet — posted on his personal account and then re-sent from his White House account — is an act of intimidation. Nordstrom interacts with many executive branch agencies: the Department of Labor, the Federal Trade Commission, the Securities and Exchange Commission, the Internal Revenue Service and others. Each one of these agencies will be headed by Trump appointees. Most will be staffed with other political appointees as well. The president is telling all of these people that he is very angry with Nordstrom. The message is clear, and it won’t take much for a political appointee in some agency to conceive of an ingenious way of ingratiating himself with the White House by making life difficult for the store chain.

… And now every other department store knows that it had better not make a similar “business decision” that displeases the president. In other words, do business with the Trump family and help the Trump family promote its products, or else.

Kellyanne Conway ingratiated herself with the president by doing some Ivanka marketing from the White House briefing room.

“It’s a wonderful line. I own some of it,” Conway told “Fox & Friends.” “I fully — I’m going to give a free commercial here. Go buy it today, everybody. You can find it online.”

Conway’s remark appears to violate the executive branch’s ban on staff endorsing products or companies. The regulation, from the Office of Government Ethics, also prohibits using public office for private gain of oneself or friends or relatives.

And I’m sure it’s just a coincidence that Heather Nauert from Fox and Friends is looking for a job at the White House and also tweeting about buying Ivanka stuff “in solidarity”. She couldn’t possibly think that Trump family marketing is part of a government job, could she? Wherever would she get such a notion?

What makes this behavior particularly galling to Democrats is the hypocrisy of it: Not so long ago Trump was regularly attacking Hillary Clinton for the apparent (though not particularly real) conflict between her management of the State Department and her connection to the Clinton Foundation, from which the Clintons have never received any direct benefit. Now government employees are openly working to put money into the pockets of the Trumps, and it’s all good.

The Trump defense for this egregious behavior is his usual somebody-else-started-it: Ivanka’s brand was targeted by an social-media boycott campaign #GrabYourWallet. “They’re using her to get to him,” Conway said.

Here’s the point that observation should bring to mind: Trump and his advisors (which formally includes Ivanka’s husband Jared Kushner and in every practical sense includes Ivanka herself) should have divested their business interests and put their assets into blind trust. When public officials are actively involved in business, that opens them not just to bribery, but also to pressure from boycotts. But if the Trumps’ assets were in blind trust where they belong, #GrabYourWallet would be no threat to them.

As far as I can tell, no one in the White House is drawing that conclusion. Nothing I’m hearing from White House, Inc. indicates any sense of conflict over using the presidency to further the Trump family’s business interests. So if you want to talk about “conflicts of interest” talk about governing: It’s Trump’s responsibilities to the American people that he’s conflicted about, not his profiteering.

Your Sift-Archive Review for the Trump Era

Trump’s attempt to roll American history back to some previous era of “greatness” makes a number of old Sift articles relevant again. 


When you blog about current events for more than a decade, sooner or later you look into more or less everything. (I’m sure my friends are sick of hearing me say, “I wrote an article about that once” in response to whatever topic has entered the conversation. People who claim to have read about everything are boorish enough.) So when a world leader tries to reverse history and undo all the progress of the last eight years (or eight decades) — why else would the word again be in his slogan? — you wind up with a perpetual case of deja vu: Didn’t I cover this already?

Good communicators, like good teachers, are shameless about repeating themselves: If it comes up again, they cover it again. It’s foolish (not to mention arrogant) to imagine that your class or your readers have been hanging on your every word and remember perfectly all the points you made months or years ago. The great communicators develop catch-phrases that they keep coming back to, and somehow those phrases never sound old. (How many times, for example, has Paul Krugman satirized the Confidence Fairy, whose magic makes pro-plutocrat policies work out for everybody by raising investors’ and managers’ confidence in the economic future?)

I envy that skill, but I just can’t make myself imitate it. Whenever I start describing the same thing in the same way, I imagine some very smart regular reader saying, “Yeah, yeah, we know all this. Tell us something new.” It’s a weakness. Where, for example, would Donald Trump be if he didn’t hammer home the same false or ignorant points over and over? And his crowds never get bored with the repetition, even when it is so predictable that he can do call-and-response with them. (“Who’s going to pay for the wall?” “Mexico!”)

Anyway, this post is my attempt to start dealing with the inevitable repetition involved in America moving backwards. I’m not going to pretend I’m telling you something new. Instead, I’ll point you at the earlier posts and maybe make some comments about what has changed in the meantime.

Pipelines. Trump has put the Keystone XL and Dakota Access pipelines back on the agenda. I’ve covered DAPL piecemeal (and probably inadequately) in the weekly summaries, but I wrote an article about Keystone in 2013: “A Hotter Planet is in the Pipeline“.

The basic reasoning of that article still holds: Carbon dioxide stays in the atmosphere for a long time, so even if atmospheric CO2 leveled off, we’ve already signed up for a century or so of increasing temperatures. If we burn all the fossil fuels on the planet, that would set off a true ecological catastrophe, putting into serious doubt the Earth’s ability to support a population anything like what we have. So some fossil fuels are going to have to stay in the ground, and the Canadian oil sands are good candidates for that role. So spending money to create infrastructure to make it easier and cheaper to produce Canadian oil-sand energy is a bad idea.

I point I should have hit harder: Pipelines are expensive to build but cheap to operate (compared to other methods of transportation like rail). So the justification for building one involves imagining that the pipeline operates for a long time. In other words, by building a pipeline we’re committing to keep burning large quantities of fossil fuels for decades.

What’s new in the pipeline debate since 2013 is that the pro-pipeline case has gotten worse due to falling oil prices and increased domestic production. The potential profitability of the pipelines has gone down, and the national-security case (i.e., Canadian production lowers our dependence on the volatile Middle East) is less urgent.

Dead voters. As part of his denial that he lost the popular vote, Trump made the claim to ABC that “dead people are registered to vote and voting“. Also in 2013, I covered one paradigmic example of that urban legend in “The Myth of the Zombie Voter“. Leaning heavily on an article from Free Times, I look at what happens when somebody seriously investigates one of those dead-people-are-voting stories you hear now and then.

In this one, the South Carolina Attorney General was on Fox News and a bunch of other conservative media with his claim that he had found 953 votes cast by people who had died before the election. He got that number by running a computer search of voter records versus death records over a decade, and then not thinking too hard about how somebody could wind up on both lists.

The State Election Commission — in South Carolina, mind you, so we’re not talking about a liberal bastion trying to cover its butt here — started investigating the 207 “dead voters” from the most recent election in 2010. They found innocent explanations that knocked that 207 down to 10 suspicious ballots. (For example, some living people mailed in legal absentee ballots, but then dropped dead before election day. In other cases, the poll watcher put a mistaken checkmark next to the name of the dead John Smith rather than the living John Smith. In a whole state, you’d be amazed how often stuff like that happens.) So they turned those ten cases over to the state police.

Having more manpower to devote to the task, the staties found innocent explanations for 7 of the 10, expressed doubt that even the other three were intentional fraud, and decided not to prosecute anyone. In sum, this is what the AG’s breathless hype boiled down to: Out of the 1.3 million votes cast in South Carolina in 2010, as many as three votes might have been cast illegally in the names of dead people, but the state police believe that zero dead voters is also a strong possibility.

Since 2013, I keep observing that this outcome is typical of massive-voter-fraud stories: There’s usually just enough evidence to make suspicion seem reasonable, but as soon as somebody gets serious about investigating, the case evaporates.

Terrorism. The possible return of torture, and a variety of other policies that are supposed to “get tough on terrorism” makes one very old post — it goes back to my Daily Kos days before I started the Sift — relevant: “Terrorist Strategy 101: a quiz“, which I updated on its 10th anniversary in “Terrorist Strategy 101: a review” in 2014.

The point of both posts is that terrorists want you to “get tough” on them; that’s often the whole point of what they’re doing.

If you’re a would-be Supreme Leader, it’s a huge challenge: Around the world, people would rather get on with the business of living than give their all to the Great Struggle.

Somehow you have to screw that up.

So your big mission — which, ironically, you share with the extremists on the other side of the spectrum — is to flatten the bell curve. In order to bring your air-castles to Earth, you need to make the center untenable. All those folks who consider themselves moderates — if you let them, they’ll muddle along while you get old and the Great Historical Moment slips away. You need everyone to realize right now that compromise is impossible, the other side can’t be trusted, and we all have to kill or be killed.

Perversely, your best allies in this phase of the struggle are the people you hate most, who also hate you. Of course you’d never actually conspire with them, minions of Satan that they are. But you don’t need to, because the steps in your dance are obvious from either tail of the distribution: rachet up the rhetoric and escalate an attack-and-reprisal cycle until compromise really is impossible and everyone is radicalized. Only after the center is gone do the two extremes meet in the second round of the play-offs. It’s a very basic pattern of history, and it never changes: from Caesar/Pompey to Bin Laden/Cheney, extremists have to come in pairs, because they need each other.

So who is ISIS’ greatest ally in the world right now? Donald Trump.

Religious Freedom. Among other things, the Neil Gorsuch nomination represents the Religious Right’s first return on its investment: It surrendered all its principles by supporting a non-religious confessed pussy-grabber for president, and in exchange Trump has given them a Supreme Court justice.

What makes Gorsuch a hero to the RR is his appellate-level Hobby Lobby decision, which prefigured Justice Alito’s 5-4 majority opinion at the Supreme Court. I discussed what’s wrong with Alito’s decision in “How Threatening is the Hobby Lobby Decision?” But the more general piece I want to call attention to is the earlier “Religious Freedom Means Christian Passive-Aggressive Domination“.

[C]onservative Christians need to divert attention from the people they are mistreating by portraying themselves as the victims. And that requires cultivating a hyper-sensitivity to any form of involvement in activities they disapprove of. So rather than sympathize with the lesbian couple who gets the bakery door slammed in their faces, the public should instead sympathize with the poor wedding-cake baker whose moral purity is besmirched when the labor of his hands is used in a celebration of immorality and perversion.

There’s a name for this tactic: passive aggression.

Obviously, if we all developed such hyper-sensitivity and got the law to cater to us in this way, society would grind to a halt. Why should a Hindu waitress be forced to choose between losing her job and enabling your barbaric cow-eating? Why are atheist cashiers required to distribute pieces of paper that say “In God We Trust”?

So in practice, these are going to be special rights that apply only to Christians from relatively popular sects like the Catholics or the Baptists, or to people from smaller sects who agree with Catholics or Baptists on some particular point of doctrine. Seriously, is a court going to rule that a Christian Scientist nurse can refuse to participate in any healing activity other than prayer? Can a pharmacist who practices Dianic Wicca decide that distributing Viagra to men (who might be rapists, after all) violates her religion? [Full disclosure: The church I belong to is testing whether our religious freedom allows us to defy our local historical commission and put solar panels on our historic building. If more non-Baptist-or-Catholic groups sue for the same rights as popular Christians, these laws will fall of their own weight.]

The law as it was interpreted before Hobby Lobby and before the RFRA gave Americans all the religious freedom we need, as I outlined in 2015 in “Religious Freedom: Colorado’s Sensible Middle Way“:

Let me take this out of the gay-rights arena with a hypothetical example: Suppose I represent an atheist group that is about to celebrate its tenth anniversary. I go to a baker and ask for a cake. Suppose I want him to write “God is Dead” on the cake, and he refuses. If I sue, then I believe he should win the case, because his freedom of speech is violated if he’s forced to write something he doesn’t agree with.

But now suppose we didn’t get that far: As soon as I say why I want a cake, the baker responds, “I’m not going to make a cake for an atheist group.” All I want is a cake with a 10 on top of it, and he says no. Now if I sue, I believe I should win, because the baker is discriminating against atheists as a religious group. In other words, a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

Bigotry and Racism. Wednesday, Ted Cruz called the Democrats “the party of the Ku Klux Klan“, a charge that never seems to die, no matter how out-of-date it is. In 2012, I did the research and spelled out how white racists moved from the Democratic Party to the Republican Party over a period of decades in “A Short History of White Racism in the Two-Party System“.

The Jeff Sessions nomination brought the usual squeals of horror that Democrats wanted to talk about race. One of the constant myths of American politics is that liberals throw around charges of bigotry and racism lightly, as ways to shut conservatives up. The truth is quite the opposite: Conservatives have redefined bigotry and racism so tightly that they become practically useless concepts.

Last summer I spelled this out in “What Should Racism Mean? Part II“:

In today’s Newspeak, as spoken by devotees of AmCon, racism has been stripped of all meanings beyond getting up in the morning and saying “I don’t like Mexicans, I’m going to go out and try to make them look bad.” It applies to active white supremacists like David Duke, and no one else.

Part I was from 2014. It lists a series of incidents where President Obama and his family provoked outrage by doing things that all presidents and their families do, but which had never bothered anybody when the president was white. Admittedly, that’s not KKK-style racism, but it’s something.

If you don’t want to call it racism, fine. But it’s a real phenomenon; it needs a name. What do you call it? … For a lot of whites who don’t harbor any conscious racial malice, things just look different when blacks do them. What do you call that?

And the answer, of course, is that conservatives don’t want to call it anything. They would rather never talk about it.

And finally, combining this category with the religious freedom category above, is the Sift’s third-most-popular post ever “You Don’t Have to Hate Anybody to be a Bigot“. It reviews the long (and mostly forgotten) history of religious and intellectual justifications of bigotry, which were created and believed by generations of people who claimed (probably sincerely, most of them) that they didn’t hate anybody.

With no one left to defend them, our memory of the social conservatives of the past reduces to Simon Legree, KKK lynch mobs, police unleashing dogs and fire hoses against peaceful marchers, and the white rabble screaming obscenities at little black girls on their way to school. The thoughtful, intellectual, devout defenders of an unjust status quo are forgotten, because their memory embarrasses their heirs.

Consequently, in every generation, the well-considered, devout bigotry of nice people is presented to the world as a new thing. They’re nothing like the villains we recall from past social-justice movements. This time they have good reasons to block progress. They have looked deep into their souls and read their Bibles and taken it to the Lord in prayer. They don’t hate anybody, they just believe that the world as it was when they were growing up was endorsed by God, and they want to stop today’s amoral radicals from upsetting God’s appointed order.

In other words, they are just like every generation of social conservatives before them.

So that’s this week’s trip down Memory Lane. As we keep moving backwards, I suspect it won’t be the last.

What to do with Neil Gorsuch?

If these were normal times, if, say, Antonin Scalia had dropped dead yesterday, leaving new Republican President Jeb Bush (elected, as presidents usually are, with more votes than the other major-party candidate) the opportunity to nominate Neil Gorsuch to the Supreme Court, I’d expect Gorsuch to be confirmed without a lot of bother.

I’d be bummed at the prospect of that seat remaining conservative for another 30-40 years. And I’d find a lot to criticize in Gorsuch’s approach to the law — mainly that he’s far too willing to side with the powerful against the powerless, and to invent new constitutional rights for corporations and fundamentalist Christians. But he is within the broad stream of American jurisprudence, and people who understand these things better than I do consider him an outstanding example of a conservative judge.

The Founders intended presidents to pick judges, and for the Senate to use its advise-and-consent power to weed out incompetence and cronyism. Gorsuch isn’t a Trump crony, and he seems competent. So after some hearings and speeches and a good look around for skeletons in his closet, I’d expect him to be confirmed with a large number of Democratic votes.

In normal times. Lawrence Lessig is looking at it pretty much the same way:

In normal times, with a normal (right wing) president, Neil Gorsuch would be a fine nominee for the Supreme Court. One can disagree with his views (I do); one can disagree with the manner in which he understands “originalism” (I do, in part). But if you believe (as I do) that an ordinary President has an ordinary right to choose the political character of his or her Supreme Court nominee, then, in ordinary times, the only question should be whether the nominee is qualified. Gorsuch is at least an order of magnitude better than qualified. He is a great, if very conservative, judge.

But these are not ordinary times.

No, they aren’t. The reason this seat is open is that the Republican Senate blockaded it during the last year of the Obama administration. If they had objected to Merrick Garland for some reason, they could have voted him down and Obama could have nominated someone else. Maybe Obama and McConnell could even have gotten together and agreed on somebody, moving the two parties back from the civil-war path they’ve been on for several years.

Voting down Garland would have been unprecedented in itself, because he is exactly the kind of experienced, respected, well-within-the-mainstream judge who usually sails through the Senate. But at least formally it would have fit the constitutional model. Instead, by simply refusing to hold hearings and announcing explicitly that they would similarly refuse any other Obama nominee, regardless of qualifications, Senate Republicans moved completely out of the previous course of American history.

That’s why it’s ironic that Gorsuch bills himself as an originalist, a judge who tries to find the lawmakers’ original intent and rule according to it — because the only reason this seat is open at all is that Republicans decided to let the Founders’ original intent be damned.

But their guy is in the White House now, so they want to turn the normal rules back on again, like the kid on the playground who calls time-out just before you tag him, and time-in when he’s safe on base. The question is whether Democrats should let them get away with it, and, if not, what the other options are.

This isn’t a stand-alone circumstance; it’s  part of the long-term decline of America’s democratic norms, which I’ve been writing about for several years (most recently when the Republicans blocked Garland). The model I always cite is the decline of the Roman Republic, where the norms were repeatedly whittled down for about a century until they were ultimately swept away by Augustus, who established the Empire.

Moments like this underline just how difficult it is to escape that downward spiral: Giving in won’t get you out of it, and there is usually not a reprisal option of just the right size to make your point without pushing further down the spiral.

For example, suppose Senate Democrats decided that they wanted to set a good example for future opposition parties and consider Gorsuch on his merits, independent of the history of this vacancy. In other words, they would accept getting rooked out of a liberal Supreme Court majority, in exchange for ending the cycle of attack-and-reprisal. They would sacrifice their partisan interests for the greater good of democracy in the United States.

The problem: This gracious move wouldn’t end the cycle of attack-and-reprisal. Quite the opposite, it would establish the precedent that Republicans can suspend democratic norms whenever it works to their advantage, and pay no price for it. It’s like when some guy sucker-punches you and then wants to declare peace. Agreeing to that deal won’t get you peace, it will just get you sucker-punched again somewhere down the line.

But what’s the alternative? Democrats are at a 48-52 disadvantage, so they can only block Gorsuch by filibustering. Republicans might then decide to escalate further by eliminating the filibuster on Supreme Court nominations (the only kind of nomination that was exempted when the Democrats limited the filibuster after Republicans came up with the unprecedented tactic of blockading positions entirely rather than just blocking particular nominees for cause). And if they don’t nuke the filibuster, and Gorsuch gets blocked, then what? Do the same thing with the next nominee, on and on for four years? That would also be an escalation. (Some Republicans threatened to do this if Hillary Clinton got elected, but it’s not clear whether they would have held together on that point.)

There is no reprisal of precisely the right size, and so we’re left with bad choices. Ideally, the process would go like this: Democrats would block Gorsuch, and Republicans would then negotiate in good faith, resulting in a nominee who moved the Court closer to consensus than to polarization. In other words, a new swing vote — someone ideologically between the most liberal conservative justice (Kennedy) and the most conservative liberal justice (Breyer). In other words, somebody in the mold of Sandra Day O’Connor. (It’s worth pointing out that Justice Garland would have fit that description as well. Obama was trying to do the right thing, and was spurned by Republicans.)

Do I expect that to happen? No. But I think we need to start down that road and let the Republicans be the ones to step off of it. So I support filibustering Gorsuch, while wishing somebody would offer me another viable option.


The argument Republicans made last year was that the American people should decide whether the Court flips from a conservative majority to a liberal majority. That’s explicitly not what the Founders wanted — they intentionally insulated the Court from politics — but even on those terms Gorsuch should be rejected, because the American people did not vote for Trump. As I said two weeks ago, Trump winning in the Electoral College makes him president; but losing the popular vote by such a wide margin wipes out any claim he might have to a mandate from the people. He certainly received no mandate to move the Court to the right.


If we ever do get back to a sane judicial appointment process, one piece of it should be that presidents stop appointing such young justices. Gorsuch is 49. If he lives as long as Ruth Bader Ginsberg already has, he’ll still be on the Court in 2051. This is a bipartisan thing, as presidents attempt to extend their influence as far into the future as possible: John Roberts was 50 when he joined the Court, Sonia Sotomayor 45.

This is another way that Merrick Garland would have been a step in the right direction, since he is 64. The Supreme Court ought to be the capstone of a long, distinguished career, not an attempt to claim an advantage 30 years in the future. It used to be that way: Oliver Wendell Holmes was 61 when Teddy Roosevelt appointed him in 1902. Thurgood Marshall was 59.

Another way to achieve the same result would be to term-limit Supreme Court justices at, say, 20 years. But that would take a constitutional amendment. Lifetime appointments were supposed to shield the Court from outside influences: It would be your final job, so you couldn’t be threatened with firing or bribed with the offer of a position after you left the Court. We’d have to address that problem some other way, but it doesn’t seem unsolvable.


Lawrence Lessig makes an alternative proposal: Gorsuch gets a hearing after McConnell resigns as majority leader. He calls it a “hypocrisy tax”. I think that’s about as likely to happen as getting an O’Connor-like replacement for Gorsuch.


Richard Primus expresses a somewhat nuanced approach on Balkinization: Yes, the Senate did wrong by Garland, but we can’t lose sight of the fact that the Republic survived Scalia and it will survive Gorsuch as well; the real threat is Trump. So the opposition to Gorsuch should always have its eye on Trump.

the Democrats need to see the confirmation process as an opportunity for shaping public discussion about Trump rather than as an occasion for attacking Gorsuch. Time spent attacking Gorsuch in particular (whether about qualifications or about substantive views or pretty much anything else) might not be time well spent: he is going to be confirmed. But what Democrats can do, I’d think, is keep saying that we are only here because the Republicans stonewalled a nominee at least as qualified as Gorsuch for no justifiable reason, and that the plurality of American voters voted to authorize Hillary Clinton, not Donald Trump, to fill the seat. They can ask Gorsuch himself to stand by his earlier written statements that Garland was a highly qualified nominee (for the DC Circuit) and to ask him whether the stonewall was appropriate. And they can ask him what he thinks about all sorts of Trump’s actions and statements. Is it appropriate for a public official to attack a federal judge as biased on the grounds of the judge’s ethnicity? What is the point of the Emoluments Clause? Do you think that this or that statement (quoted from Trump) is consistent with our constitutional values? And so on. Gorsuch might or might not answer, but the Democrats should find good ways to keep asking and to make those questions a big part of what people hear and talk about when they hear and talk about this process.

I don’t see why we can’t oppose both Gorsuch and Trump, but I agree this far: Personal attacks on Gorsuch, beyond his legal record, distract from the main narrative — unless somebody discovers something so damning that it will turn Republicans against him.

The Ban: Ten Days of Drama

It’s hard to believe how much drama has played out in the last ten days. Even the Advise and Consent style political novels I loved in high school didn’t move this fast.

It all started a week ago Friday, when President Trump signed Executive Order 13769 (a.k.a “the Muslim ban” and “it’s not a Muslim ban“) which Wikipedia summarizes like this:

The order limited refugee arrivals to 50,000 and suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, after which the program would be conditionally resumed for individual countries while prioritizing refugee claims from persecuted minority religions. The order also indefinitely suspended the entry of Syrian refugees. Further, the order suspended the entry of alien nationals from seven Muslim-majority countries — Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen — for 90 days, after which an updated list will be made. The order allows exceptions to these suspensions on a case-by-case basis. The Department of Homeland Security later exempted U.S. lawful permanent residents (green card holders).

The immediate result was chaos. The order had been reviewed by the Justice Department’s Office of Legal Counsel for “form and legality”, but beyond that was pretty much unvetted, parts of it apparently leaping straight into the world from Steve Bannon’s brain like a malformed Athena from a not-very-godlike Zeus-wannabee. Congressional leaders were not consulted. (Though Trump apparently was helped by Republican congressional staffers who were obliged by a non-disclosure agreement not to tell their bosses; so far history does not record what the out-in-the-cold Republican congressmen think of that.) The border-control officials who were supposed to implement the ban in America’s airports were not briefed in advance. (NYT: “customs and border control officials got instructions at 3 a.m. Saturday and some arrived at their posts later that morning still not knowing how to carry out the president’s orders.”)

People already in the air, including permanent legal residents (i.e. green-card holders) who were returning to their jobs or students with valid visas coming back to their universities, were sent back or detained in airports. City University of New York claims it has 100 students from the affected countries. Two Iraqis who had helped the American military and feared for their lives if they had to return to Iraq were detained at JFK airport.

The public response was immediate. On Saturday, crowds of protesters spontaneously formed at JFK and other airports. By 9 p.m., a federal judge had issued an order preventing the administration from sending the detainees back where they came from. Sunday, the administration backed off of the restrictions on green-card holders.

Internal dissent. On Monday, acting Attorney General Sally Yates (an Obama appointee held over until Trump can get his own AG approved) ordered the Justice Department not to defend Trump’s order in court.

I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.

Also on Monday, an internal State Department dissent-channel memo — reportedly with over 1000 signatures — leaked to the press. It called the Trump order “counter-productive” and said

Looking beyond its effectiveness, this ban stands in opposition to the core American and constitutional values that we, as federal employees, took an oath to uphold.

Rejecting the whole concept of internal dissent from experienced professionals, Press Secretary Sean Spicer called the signers “career bureaucrats” and responded that “they should either get with the program or they can go”. Yates was fired Monday night in typical Trump fashion; the White House statement descended from policy disagreement into personal insult: Yates had “betrayed the Justice Department” and was “weak on borders and very weak on illegal immigration”. (One of Trump’s most disturbing traits is his apparent belief that it’s not enough simply to overcome opposition; the people who oppose him must be shamed and punished. This authoritarian impulse alone should have disqualified him from the presidency.)

Also Monday night, Samantha Bee weighed in.

Defiance. Throughout the week, court orders piled up from judges around the country, and multiple reports indicated that the Trump administration was at best slow-rolling its compliance and at worst simply defying the orders. Friday Politico reported:

Hours after a federal judge ordered customs officers to provide lawyers to travelers detained at Dulles airport last Saturday, senior Trump administration officials instructed the guards to give the travelers phone numbers of legal services organizations, ignoring a mass of lawyers who had gathered at the airport. Most of the legal services offices were closed for the weekend, effectively preventing travelers with green cards from obtaining legal advice.

The move was part of what lawyers contend was a series of foot-dragging actions by the administration that appeared to violate court orders against the Trump’s controversial travel ban. … The [Customs and Border Protection] officers at airports were not rogue individual actors, according to the documents obtained and people interviewed by POLITICO. Rather, the agents on the ground were following orders from high in their chain of command.

For example, a federal judge in Boston ordered the administration to admit travelers with valid visas. The travelers did not get into the country, though, because the administration claimed it had the power to revoke those visas. Slate‘s Jeremy Stahl interviewed an immigration lawyer, who concluded:

When you have an executive that is acting the way that Donald Trump is acting and not controlling what his officers are doing in noncomplying, that’s a constitutional—that’s leading to a constitutional crisis.

Yonatan Zunger put a dark spin on it:

[T]he administration is testing the extent to which the DHS (and other executive agencies) can act and ignore orders from the other branches of government. This is as serious as it can possibly get: all of the arguments about whether order X or Y is unconstitutional mean nothing if elements of the government are executing them and the courts are being ignored.

Yesterday was the trial balloon for a coup d’état against the United States. It gave them useful information.

Writing on the Lawfare blog, Ben Wittes put a dark spin on the whole enterprise: He thinks the ban’s whole purpose is to appeal to the anti-Muslim bigots in Trump’s base, and has nothing to do with keeping Americans safe.

Put simply, I don’t believe that the stated purpose is the real purpose. This is the first policy the United States has adopted in the post-9/11 era about which I have ever said this. It’s a grave charge, I know, and I’m not making it lightly. But in the rational pursuit of security objectives, you don’t marginalize your expert security agencies and fail to vet your ideas through a normal interagency process. You don’t target the wrong people in nutty ways when you’re rationally pursuing real security objectives.

When do you do these things? You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.

Where it stands. Friday, a federal court ruling came down from Judge James Robart in Seattle, applying nationally and stated in as sweeping terms as possible, clearly intending to allow no wiggle room. Saturday, the Trump administration said it would comply, pending appeal.

Meanwhile, a State Department spokesperson tells NPR that officials with the department are also adhering to the decision. The department has provisionally revoked somewhere between 60,000 and 100,000 individuals’ visas, according to different accounts; under Saturday’s announcement, the State Department says that move has been reversed — and that “individuals with visas that were not physically cancelled may now travel if the visa is otherwise valid.”

Trump again personalized the conflict, tweeting:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

(Lots of people pointed out that Robart’s claim to be a judge is at least as good, if not better, than Trump’s claim to be a president.) Late Saturday night, the 9th Circuit Court of Appeals denied the Justice Department’s motion to reverse the suspension of Trump’s executive order. The order will remain suspended until the court can make a ruling on the merits of the case. That could happen as early as today, or not.

Over the weekend, congressional Republicans gave strong indications that they don’t want this conflict to escalate to a constitutional crisis. Sunday, Mitch McConnell, who (like Paul Ryan) has been stepping very carefully to avoid the President’s sensitive toes, told CNN’s Jake Tapper:

The courts are going to decide whether the executive order the President issued is valid or not, and we all follow court orders.

The unstated implication is: “You’d better follow them too.”

What will the courts decide? Deborah Pearlstein posted a good summary of the arguments both ways on Jack Balkin’s legal blog Balkinization. And the answer is: It’s a close call.

On the one hand, the Constitution gives the President a lot of power to manage our dealings with other countries, and Congress has supplemented that power in various ways over the years. So the administration has a lot of possible arguments it might make to defend its actions.

On the other hand, courts often look beyond simple questions of authority to rule on intent: If your clear intent is to achieve an unconstitutional result, then a court might block your actions even if they fall within the letter of your legal powers. A good example of this came last summer, when a federal appeals court struck down North Carolina’s voter-suppression law. Everything in the law — changing the dates and hours of early voting, requiring IDs, etc. — was within the legislature’s power. But the fact that legislators researched how and when black North Carolinians vote, and then systematically restricted their favorite options, pushed the law beyond the pale.

Here, there is a clear record of intent to create a religious test for entering the United States, which would be unconstitutional. Trump promised a Muslim ban during his campaign. Advisors like Rudy Giuliani have spoken in public about coaching Trump on how to “do it legally” by focusing on the threat of terrorism from particular countries rather than on religion. The order’s provisions to prioritize religious minorities for exceptions to the ban seems intended to make sure Christians aren’t caught in a ban intended for Muslims. (If the administration is serious about offering refuge to persecuted religious minorities, that provision should apply to a lot of Muslims as well: Shia in Sunni-majority countries, Sunni in Shia-majority countries, and Sufis and other smaller Muslim sects everywhere. Will it? Or is it just a Christian loophole?)

Will that be enough to convince an appeals court, and to split the 4-4 Supreme Court so that it doesn’t overrule? Maybe. But even if it does, that ruling is likely to illuminate a path that would allow some future objectionable executive order to pass legal muster.

Then what? Pearlstein says it’s not enough to count on the courts: Protesters need to focus their attention on Congress as well:

There is, however, one foolproof way to ensure the President’s order in its current form does not stand. And it lies with the body that gave the President the authority to issue it in the first place. A growing, bipartisan group of congressional representatives have expressed concern about the order’s scope and effect. And while Senator McConnell has proposed the matter be left to the courts to decide, it is not wise – and should not be easy – for Congress to avoid responsibility here. At a minimum, it would be a serious strategic mistake for the many groups sprung up post-election to push back against the new administration not to focus some of their energies on demanding Congress act.

So far, McConnell, Ryan, and other congressional Republicans have had it both ways: They can tut-tut about executive overreach and incompetent implementation, while remaining uncommitted about the order’s overall intent. As much as possible, the public needs to pin them down. If a Muslim ban (or something like it) is a good thing, then Congress should authorize it. If not, it should establish specific boundaries on the President’s power.

The legitimacy and illegitimacy of Donald Trump

Is Donald Trump a legitimate president? Yes and no.


Not since Abraham Lincoln had to sneak into Washington has a president entered office facing so much organized opposition. Saturday, the day after his inauguration, marches explicitly for women’s rights (and implicitly against Donald Trump) were held all over the country, drawing (by some estimates) more than 3 million participants, and perhaps more than 4 million. The picture above is from much earlier demonstrations in the days following the election, but on the Boston Common Saturday I did see “Not My President” signs. During the boisterous moments before the official speakers took the stage, a “not my president” chant started in my section of the crowd, but quickly fizzled. [1]

It’s not just demonstrators. Last weekend, Congressman John Lewis told NBC’s Chuck Todd “I don’t see Trump as a legitimate president“, citing Russian interference in the election as a reason. Other observers — mostly Democrats, but not entirely — have given other reasons to regard Trump’s victory as shaky or suspicious: Hillary Clinton got nearly three million more votes than he did, winning the national vote 48%-46%. Trump was also assisted by the apparently improper interference of FBI Director James Comey. [2]

Trump has tried to bluster over such talk by tweeting about his “landslide” in the Electoral College, and making baseless charges about “the millions of people who voted illegally” for Clinton. The word legitimate came into the discussion from Trump’s supporters’ accusation that critics were trying to “delegitimatize”  his presidency. [3] By using that word, Lewis was swinging at the pitch thrown by Trump spokespeople like Kellyanne Conway.

So is he legitimate or not? On both sides, I think we’re getting lost in the vagueness of a word. What does it mean to be a “legitimate” president? I can’t speak for all the people who can’t bring themselves to call him “Mr. President”, but I thought I’d lay out exactly how legit I think Trump is, and what difference it makes.

Legal authority and moral authority. What confuses the issue, in my opinion, is that the presidency is really two things: on the one hand a legal office defined by the Constitution, but also a title evoking a much larger and fuzzier penumbra of traditional respect and moral authority. The President of the United States is not just the one who signs or vetoes laws, or gives orders to the Joint Chiefs. He is also the heir of Washington and Lincoln, the symbol and spokesman for the American people, the leader of the free world, and the recipient of the voters’ national mandate. Americans look to their president to express our collective sorrow in moments tragedy, and our resilience in the face of disaster. In our name, he recognizes outstanding achievements, and honors champions of sport and culture. We look to the president for direction in times of trouble. The Constitution says nothing about any of that.

In my mind, the legal office is really not in doubt. Congress counted the electoral votes and verified that Trump had a majority of them. So in the technical, legal sense spelled out in the Constitution, he is the President of the United States. All the powers the Constitution assigns to the President, or that Congress has delegated to him by law, are his to wield. [4]

As for the rest of it, though, Trump at this point deserves nothing, as far as I’m concerned. He is not my leader, and I do not respect him. He has no moral authority, because he deserves none. He carries no mandate, because the voters chose someone else. Our allies view him with suspicion, as they should. So he has the powers spelled out in the Constitution, period.

To a large extent, Trump has created this situation himself: When tradition would put burdens on him beyond those imposed by law, he sloughs those burdens off. [5] It is, after all, only tradition that insists that candidates reveal their tax returns or presidents put their assets in blind trust. Nothing in the Constitution requires that a president act presidential, rather than respond to even the most respectful criticism like a third-grader in a playground argument. [6] No law requires the winner of an election to be gracious, or to reach out to those who voted for other candidates, rather than gratuitously gloat over “my many enemies and those who have fought me and lost so badly“. [7]

On top of his vote deficiency and his unworthy behavior since the election, his entire life shows him to be a genuinely reprehensible person. He assaulted those women. He defrauded those Trump U students. He stiffed those contractors. This is the heir of Washington and Lincoln?

The significance of moral authority. If you think it is toothless to deny Trump the intangible, extra-constitutional benefits of the presidency, consider how often he and his supporters ask for them.

Trump has repeatedly claimed that the election settled all the issues that were raised about him during the campaign. He shouldn’t have to account for his conflicts of interest, for example, because the American people knew that when they voted for him. There is no point in continuing to discuss the pussy-grabbing or the defrauding or the stiffing. Or his bigoted attacks on Mexicans or Muslims, or his mimicry of a reporter’s disability. The election washed all that away, as if the electorate were a 130-million-member jury that voted for acquittal.

If Republicans genuinely believed such a clean-slate theory of elections, then President Obama’s clear victory in 2012 would have washed away Benghazi, making all further hearings and rhetoric irrelevant and immaterial. But in Trump’s case even the internal logic of the theory doesn’t work, because the American people did not vote for him. The Electoral College may provide a legal loophole that allows him to take office, but it doesn’t grant absolution. The American people endorsed the case against Donald Trump; he still needs to answer it.

A related claim is that the millions of protesters are misguided, because we need to “give the guy a chance“. Similarly, the Senate should give his cabinet picks the benefit of the doubt, even those who are manifestly unqualified, don’t understand the laws they’re supposed to enforce, have a suspect history on racial issues, or appear to be corrupt.

But none of that is in the Constitution. Constitutionally, nobody has to give Trump or his people a chance, or any benefit of the doubt. He needs to earn all that, and he hasn’t.

Much of Trump’s power over Republicans in Congress, or his hope of intimidating red-state Democrats, comes from an intangible aura of popularity: If elected officials oppose him, his voters will rise up and smite them. That’s why it’s not just legitimate, it’s vitally important to focus public attention on the fact that he is not popular and he has never been popular. Mass demonstrations do that, and so do polls that show Trump’s approval at unprecedented lows for an incoming president. [8]

And finally, I sincerely doubt that the constitutional powers of the presidency are what Trump was aiming for when he ran. He has never shown much interest in governing or in public policy of any sort. I suspect it was the splendor of the presidency that appealed to him, and that is precisely what President Forty-six Percent must be denied unless or until he earns it.

How could he gain legitimacy? To say that Trump can’t be my president unless he agrees with me would deny the whole basis of republican government. We all lose elections from time to time, and we need to learn how to live with that. What keeps Trump from being a fully legitimate president has nothing to do with his beliefs or policies, and everything to do with how he behaves. He could gain legitimacy if he worked at it.

How? To be blunt, he could start by not acting like such an asshole all the time. [Look at note 5 again. I’m using asshole not as an insult, but as a well-defined descriptive term.] A good beginning would be to stop using the word enemies to refer to law-abiding Americans who wish we had a different president, or to journalists who report true things he’d rather people didn’t notice. It was bad enough when Nixon maintained an enemies list in secret. For the President of the United States to use that word in public to refer to anyone short of an ISIS leader is way beyond the pale.

To put that more personally: I will never recognize any man as my leader who uses the word enemy to refer to people like me, or one who takes visible pleasure in insulting me.

He could recognize and carry out the obligations that tradition puts on him, rather than simply claim the benefits. He could release his tax returns and stop setting his business up to profit from his presidency. He could apply the same moral standards to his appointees that all previous presidents have applied to theirs. [9]

He could approach his job with seriousness, and not speak unless he knows what he’s talking about. He could stop telling lies so obvious that they insult our intelligence, like the ones this weekend about the size of his inaugural crowd.

That’s what most of us mean when we say presidential. But if he won’t even attempt to become presidential, then to me he will continue to be president only in a technical legal sense.


[1] “Not my president” didn’t start with Trump protesters. It was also said about Obama and Bush.

[2] Lewis’ statement, as well as expressions of outrage by many other Democratic congresspeople, followed a classified briefing from Comey about the FBI’s investigation of the ties between the Trump campaign and the Putin government. We don’t know exactly what was said in this briefing, but a reasonable guess is that Democrats were angered by Comey’s blatant double standard: When Trump was the target, Comey upheld the FBI policies of not discussing investigations. But he repeatedly made damaging public comments based on investigations of Clinton.

[3] This charge was somewhere between ironic and hypocritical, since Trump himself had literally tried to delegitimize Obama’s presidency by promoting the belief that he isn’t a native-born American, as the Constitution requires. And after Obama’s re-election in 2012, he tweeted: “We can’t let this happen. We should march on Washington and stop this travesty. Our nation is totally divided!”

[4] Trump enters office under an ethical cloud that some think should lead to his impeachment, but that’s a different issue. There are legal methods for removing a president from office, and none of them have been carried out yet. So he is president under the law.

[5] In his insistence that he should receive the intangible benefits of the presidency, but shoulder none of the intangible responsibilities all other presidents have taken on, Trump is fulfilling the definition of asshole that Aaron James laid out in 2012 in his book Assholes: a theory.

A person counts as an asshole when, and only when, he systematically allows himself to enjoy special advantages in interpersonal relationships out of an entrenched sense of entitlement that immunizes him against the complaints of other people. … His circumstances are special in each case, in his view, because he is in them. If one is special on one’s birthday, the asshole’s birthday comes every day.

The asshole, in one paradigmic example, is the guy who cuts to the front of the line while believing firmly in the importance of lines

[6] I found his denunciation of the cast of Hamilton particularly noteworthy. If you watch the video of the event, the cast’s message for Vice President-Elect Mike Pence was entirely respectful, expressing no hostility. (“There’s nothing to boo here,” spokesman Brandon Dixon said to silence the audience.) Instead, they confessed to being “alarmed and anxious that your new administration will not protect us” and encouraged Pence “to uphold our American values and to work on behalf of all of us”.

Trump’s response (via Twitter) was not just to punch down, but to answer a respectful request for reassurance with personal insult:

The cast and producers of Hamilton, which I hear is highly overrated, should immediately apologize to Mike Pence for their terrible behavior

[7] Contrast this with how Lincoln, another president elected with less than a majority, closed his first inaugural address:

We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearth-stone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

[8] Since Trump must denounce any mirror that doesn’t show him to be the fairest of them all, he claims these polls are rigged.

The same people who did the phony election polls, and were so wrong, are now doing approval rating polls. They are rigged just like before.

The flaw in this point of view is that although a few state polls (like Michigan) were badly wrong, the national polls were pretty close. The final RCP polling average had Clinton winning nationally by 3.2%. She actually won by 2.1%. There was a much bigger error in the opposite direction in 2012: the RCP final average was that Obama would win by less than 1%, and he actually won by nearly 4%.

Errors of that magnitude wouldn’t salvage Trump’s approval/disapproval spread, which is currently at -8.1% and dropping. Traditionally, pre-inauguration is when Americans are most optimistic about their new presidents. Gallup had Obama at +71% going into his inauguration in 2009. Even popular-vote-loser George W. Bush came in at +36%.

[9] HHS nominee Tom Price profited by trading healthcare stocks while he had inside knowledge of the industry through his position in Congress, and supported legislation that benefited his companies. Treasury nominee Steven Mnuchin “failed to disclose nearly $100 million of his assets on Senate Finance Committee disclosure documents and forgot to mention his role as a director of an investment fund located in a tax haven.”  The Senate should not have to vote on these men; their nominations should be withdrawn. These are not close calls.

Trump’s Toothless Plan to Avoid Conflicts of Interest

Last week I talked about how Trump’s followers don’t care about process issues. To them, process issues are about getting the appearances right and filling out the correct forms. Only lawyers and fussbudgets care about technicalities like that.

Avoiding conflicts of interest is a process issue. Trump has been appealing to his supporters indifference to such concerns when he sloppily says “I have a no-conflict situation because I’m president.” or “The president can’t have a conflict of interest.” The grain of truth in those statements is that the president is exempt from the primary conflict-of-interest law (for reasons that will be explained below). So he’s free from some (but not all) legal technicalities, which he expresses by saying that he’s free from conflicts of interest.

This refusal to acknowledge the problem, other than as a set of meaningless hoops people expect him to jump through, explains a lot about the conflict-of-interest plan he revealed Wednesday. The Atlantic ‘s Jeremy Venook comments:

Trump and his lawyer Sheri Dillon laid out the plans that they claimed would resolve the questions about conflicts of interest that have dogged the president-elect since he was elected. Instead, what they announced were piecemeal steps that, though designed and packaged to mitigate the appearance of conflicts of interest, do almost nothing to substantively address concerns that his business entanglements will undermine his ability to faithfully execute the office of the presidency.

The plan. Trump’s plan has a few basic points:

  • He resigns as an officer of the Trump Organization.
  • His assets go into a trust that he continues to own, but which will be managed by his sons Donald Jr. and Eric, together with a Trump executive, Allen Weisselberg.
  • He pledges not to discuss business with his sons or Weisselberg. (Venook calls this a “pinky-swear assurance”. Obviously Trump will continue to meet with his sons, and we’ll have no idea what they talk about.)
  • The Trump Organization does not make any new deals in foreign countries, or any deals at all with any “foreign country, agency, or instrumentality thereof.”
  • New domestic deals will need the approval of “independent” ethics officers, one in the government and one in the Trump Organization.
  • Profits earned from foreign governments — say by diplomats staying at or holding events at Trump hotels — will be donated to the U.S. Treasury.

His lawyers claim that in giving up foreign-government-related profits, he goes over and above what the Constitution’s Emoluments Clause requires, because it does not apply to “fair-value exchanges” like renting a hotel room. (That’s a controversial view, to put it mildly. And who’s to decide the “fair value” of a room in a hotel whose main selling point is the prestige of its image? What if he later claims that a stay in a Trump hotel is — as the MasterCard commercials say — “priceless”.)

The problems. The foremost obstacle to a credible conflict-avoidance plan is that Trump has a long history of welching on his deals and not carrying out his promises. For Trump, no deal is ever done; he’s constantly pushing its boundaries and trying to re-negotiate its terms. At a minimum, we should expect Trump to interpret any constraints on his actions as loosely as possible. So his conflict-of-interest plan needs to have ironclad enforcement provisions.

This one has none. The public knows nothing and will continue to know nothing about the internal workings of the Trump Organization. The ethics officers are appointed by Trump or his sons, and if they rubber-stamp deals that clearly violate the stated terms — say, an interest-free loan from a sovereign wealth fund — we’ll never know. And what is “profit”, anyway? In the real estate business, profit is as much or as little as an accountant is willing to sign off on. Unless Trump volunteers to tell us, we won’t know how much he is remitting to the Treasury or what that number is based on. (Or he might tell us he’s giving so many millions to the Treasury and then not bother to write the check unless or until somebody notices; he’s done that kind of thing before.) 538‘s Ben Casselman sums up:

It’s hard to evaluate Trump’s promises because as a private company, the Trump Organization doesn’t have to disclose many details about its finances or operations and because Trump himself — in a break from the practice of past presidents — has refused to release his tax returns. Trump on Wednesday displayed huge stacks of documents that he said were part of the process of turning his business over to his sons, but he didn’t make those documents available for public inspection. So although Trump did, as promised, provide new details about how he will handle his finances as president, the news conference didn’t do much to change the bottom line: When it comes to conflicts of interest, Trump’s message to Americans remains, “Trust me.”

And then there’s the stuff that’s not covered at all. Even without any new deals, foreign governments will have plenty of opportunities to favor or threaten existing Trump properties. The Trump Organization can hire people that the Trump administration wants to pay off or keep quiet, and we’ll never know. Banks that loan money to Trump businesses — we recently found out there’s a whole lot more debt than Trump previously admitted to — will be regulated by the Trump administration. Quid-pro-quo deals can be arranged to begin after Trump leaves office. And the lease on the Old Post Office, which houses the new Trump International Hotel in Washington, explicitly forbids any “elected official of the Government of the United States” from participating. Presumably Trump thinks he’s solved the problem by having a trust that he owns be party to the lease, but he hasn’t.

Perhaps the most serious potential conflict of interest isn’t financial: Imagine that terrorists in some country, say Turkey, start targeting Trump properties, and Trump concludes that the Turkish government isn’t doing enough to protect them. Is that an issue between the Turkey and a foreign corporation? Or is it an issue between Turkey and President of the United States?

The Schaub speech. Also on Wednesday, the Director of the Office of Government Ethics, Walter Schaub, gave an unprecedented speech at the Brookings Institution in Washington.

I wish circumstances were different and I didn’t feel the need to make public remarks today. You don’t hear about ethics when things are going well. You’ve been hearing a lot about ethics lately.

I need to talk about ethics today because the plan the President-elect has announced doesn’t meet the standards that the best of his nominees are meeting and that every President in the past four decades has met.

We learn a bunch of things from Schaub’s speech. First, that Trump constructed his plan with no input from OGE, the organization that his cabinet nominees have been working with. (Schaub spoke glowingly of Rex Tillerson’s cooperation, and the plan they came up with to insulate him from Exxon-Mobil.) Trump’s attorney had explained the decision not to sell his interest in the Trump Organization because its assets are too illiquid to dispose of quickly or easily. Schaub brushed that off:

[Trump’s] attorney [Sheri Dillon] also said she feared the public might question the legitimacy of the sale price if he divested his assets. I wish she had spoken with those of us in the government who do this for a living. We would have reassured her that Presidential nominees in every administration agree to sell illiquid assets all the time.

He might not get top dollar if he sold now, but people make sacrifices to serve at the top levels of government.

I appreciate that divestiture can be costly. But the President-elect would not be alone in making that sacrifice. I’ve been involved in just about every Presidential nomination in the past 10 years. I also have been involved in the ethics review of Presidents, Vice Presidents, and most top White House officials. I’ve seen the sacrifices that these individuals have had to make.

It’s important to understand that the President is now entering the world of public service. He’s going to be asking his own appointees to make sacrifices. He’s going to be asking our men and women in uniform to risk their lives in conflicts around the world. So, no, I don’t think divestiture is too high a price to pay to be the President of the United States of America.

Tillerson, for example agreed to forego “millions of dollars” in bonuses from Exxon-Mobil. Everybody who joined the Obama administration, including Obama himself, had to sell their stocks at the worst possible time. (The exact bottom of the market was in early March, 2009, but November, 2008 was close.)

Finally, we get an explanation of why Congress exempted the president from certain conflict-of-interest laws.

Now, some have said that the President can’t have a conflict of interest, but that is quite obviously not true. I think the most charitable way to understand such statements is that they are referring to a particular conflict of interest law that doesn’t apply to the President. That law, 18 U.S.C. § 208, bars federal employees from participating in particular matters affecting their financial interests. Employees comply with that law by “recusing”, which is a lawyerly way of saying they have stay out of things affecting their financial interests. If they can’t stay out of these things, they have to sell off their assets or get a waiver. That’s what Presidential appointees do. But Congress understood that a President can’t recuse without depriving the American people of the services of their leader. That’s the reason why the law doesn’t apply to the President.

Makes sense, doesn’t it? If a president who owned oil wells had to recuse himself from any energy-policy discussion, he couldn’t really do his job.

[In response to this speech, House Oversight Chair Jason Chaffetz sent a letter to Schaub warning him against “blurring the line between public relations and official ethics guidance” and implying that his office’s funding might be cut.]

Other expert opinion. The Atlantic interviewed Norman Eisen, who used to oversee ethics for the Obama administration. Eisen echoes Schaub’s explanation:

You don’t want to have the president in the middle of a crisis where he’s about to make an urgent decision, and his White House Counsel says to him, “Oh, Mr. President, you have a conflict of interest. You have to leave the room. You can’t decide whether to rescue those hostages.” We don’t want to have that.

And points out another way in which “The president can’t have a conflict of interest” is at best “a half truth”.

It is the case that there are certain portions of the federal conflict-of-interest laws that apply to all other federal officials, but do not apply to the president and vice president. But those occur in a large body of constitutional, criminal, and civil law that is intended to regulate conflict. There’s no dispute that the president is covered by the federal criminal law, including 18 U.S.C. § 201, for example, which is bribery of public officials.

Eisen answers questions about enforcement. Impeachment is the ultimate enforcement mechanism, but he outlines other steps that could play out in Congress or the courts, like competitors suing because they feel they’ve been damaged by favors given to Trump businesses.

But why are we even talking about this? He could sign his stuff over to a true, independent trustee, not a family member, let the independent trustee liquidate, put the liquidated assets behind a big, beautiful, blind-trust wall, and set up another ethics firewall for your kids and other managers of the organization. That simple, four-step process would spare us all of this.

The argument against this solution is one I suspect we’ll hear a lot these next four years: Trump is very rich, and it’s unreasonable to expect the very rich to follow the same rules or live by the same standards the rest of us do.