What kind of justice would Brett Kavanaugh be?

Monday night, Trump named his second Supreme Court nominee: Brett Kavanaugh.

Immediately, legal and political pundits began speculating on how Kavanaugh’s appointment, if the Senate approves it, would affect abortion rights. Will Kavanaugh be the fifth vote to reverse Roe v Wade, allowing either states or the federal government to make abortion illegal? Or could he perhaps gut Roe while leaving it technically valid, perhaps by letting states regulate abortion in ways that make it practically unavailable, even if still theoretically legal? Or does he really believe in the principal of stare decisis, in which the Court leaves a precedent in place unless it proves unworkable?

Important as that issue is, it would be a shame if it sucked all the oxygen out of the room, leaving no space for discussion of the other implications of Kavanaugh joining the Court. Let’s look at a few of those issues.

Partisanship. One of the worst developments for the Supreme Court as an institution over the last two decades is the loss of its non-partisan image. Beginning with Bush v Gore in 2000, and going on through Citizens United (which destroyed campaign finance controls) and Shelby County (which gutted the Voting Rights Act), the public has gotten used to the idea that judges represent the party that appointed them. What the laws or the Constitution says is less important than which party a decision would benefit.

Kavanaugh is not going to improve that image. He first came to public attention as a main author of the Starr Report. While ostensibly non-partisan, the investigation into President Clinton lead by Kenneth Starr was transparently political. (Anyone who thinks the Mueller investigation is a “partisan witch hunt” has amnesia. Unlike the Mueller probe, Starr’s investigators regularly leaked damaging information to the press and timed their official announcements for maximum political effect. The Starr Report was written to be as sexually scurrilous as possible. Impeachment was a dim fantasy at that point, but at least the report could do political damage to the Clinton administration and embarrass Clinton personally.)

He subsequently was a lawyer for the Bush campaign during Bush v Gore, and then worked for Bush’s White House Counsel Alberto Gonzalez. His wife has worked for the George W. Bush Library Foundation.

If you wanted to give him the benefit of the doubt, you could imagine that he was sprinkled with non-partisan fairy dust when he became a judge. However, you have to wonder about one of the first things out of his mouth after Trump appointed him.

No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination

This claim is transparently, outrageously false: Trump limited himself to a list of judges given to him by Federalist Society Executive-Vice-President-on-leave Leonard Leo. By some accounts, appointing Kavanaugh was part of the deal that got Justice Kennedy to retire. There’s no reason to believe that anyone other than Leo, Kennedy, and Trump had anything to do with this decision. Quite likely, then, no president has ever consulted so narrowly or sought less input from fewer people about a Supreme Court nomination.

So Kavanaugh’s very first claim after being nominated was a pants-on-fire lie to flatter the president who appointed him. Former Senator Al Franken was blunt:

It’s just a totally made-up assertion that is exactly the opposite of the truth, flowing out of the mouth of a committed partisan who doesn’t care that it’s false…. [I]t’s critical to recognize that the very first thing he did as a Supreme Court nominee was to parrot a false, partisan talking point. Of course that’s what he did. Advancing the goals of the Republican Party and the conservative movement is what he’s there to do.

Workers and corporations. In the Confined Space blog, Jordan Barab examines Kavanaugh’s cavalier approach to worker safety, citing his dissent in a case in which OSHA fined Sea World for neglecting safety issues in a way that led to a trainer’s dismemberment by a killer whale.

Kavanaugh’s dissent drips with hostility toward OSHA and a basic misunderstanding of the act and the principles — and law — behind it. … Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed. Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.

The Atlantic’s Ronald Brownstein focuses on Kavanaugh’s pro-corporate views.

While Kavanaugh’s record offers few clues about his view on the 1973 Roe v. Wade decision that legalized abortion nationwide, he has demonstrated an unequivocal skepticism about federal regulation of business. Jennifer Mascott, a former Kavanaugh law clerk and an assistant professor at George Mason University’s law school, recently wrote that, “Even during this era of generous judicial deference to administrative agencies, Judge Kavanaugh has written 40 opinions finding agency action to be unlawful and joined majority opinions reversing agency action in at least 35 additional cases.”

Brownstein pictures a return to the Lochner Era, when the Court routinely invalidated state and federal laws that tried to establish a minimum wage or a limited work-week or workplace-safety rules. (A sharper name might be the Triangle Shirtwaist Era.)

Executive power. From his attitude towards regulation, you might imagine that Kavanaugh has a libertarian streak and is likely to oppose government power across the board. But not so: He takes a very expansive view of presidential war powers. Remember, he was part of the Bush administration when it claimed the power to jail American citizens without charges and torture prisoners. (I don’t know of any point where he publicly expressed an opinion about those issues, but he clearly had no problem continuing to serve.)

Steven Vladeck of the Just Security blog writes in The Washington Post about Kavanaugh’s deference to presidential power:

Kavanaugh’s many opinions concerning Guantanamo and related matters make it crystal clear that his confirmation would make the court far more deferential to the president’s exercise of aggressive war powers, would diminish the long – standing role of international law as a means of shaping executive authority and understanding congressional authorizations , and would more generally weaken the role of the courts as a check on the political branches in this profoundly important area of law.

Like Bush, Kavanaugh believes in the unitary executive theory, that all executive functions of the government should be under direct presidential control. In particular, Congress should not be able to establish semi-independent entities like the Consumer Financial Protection Bureau, whose director can only be fired for cause. If Congress would attempt to insulate Special Counsel Robert Mueller from Trump’s interference, Kavanaugh would probably find that unconstitutional.

Legal theory. The Mascott’s blog post Brownstein quoted is worth reading in full, as it spells out what a Kavanaugh protege admires about him. She talks a great deal about Kavanaugh’s “deeply rooted interpretive philosophy built on interpreting law in accordance with the statutory text and the meaning of the text of the Constitution”, a position which she traces back to Justice Scalia.

I usually dismiss this kind of talk as meaningless rhetoric, because it’s based on a straw man fallacy: Who exactly are these judges who advocate ignoring the text of the laws and the Constitution? I have never heard a judge at any level say “The law says X but I believe Y, so I’m going to rule Y.” The dispute is never about whether to read the text of the law, but how.

(For contrast, look at Justice Souter’s 2010 Harvard commencement speech. Mere textual interpretation is insufficient, Souter said, because the Constitution’s “language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.” Cases where the text is clear and just needs to be applied “do not usually come to court, or at least the Supreme Court.” Moreover, often concepts from other centuries can only be applied today by doing some kind of interpretation-after-the-fact: How, for example, should the word “arms” in the Second Amendment be applied to weapons radically different from anything that existed in the 18th century? James Madison surely was not picturing a shoulder-fired missile capable of taking down an airliner.)

But Mascott’s account does underline one thing for me: Like the Court’s other conservative justices, Kavanaugh will ignore precedent when it suits him, as, for example, Justice Scalia did when he invented an individual right to bear arms in his Heller decision. The process is simple, given Scalia’s (and Kavanaugh’s) text-interpretation method: You go back to the original text with a period-of-authorship dictionary, as if previous courts had never considered what the text-as-a-whole means. Decompose sentences into their constituent words, interpret them one-by-one, and then reassemble them into a meaning that no previous court has seen, and that the original authors quite possibly never imagined.

Unenumerated rights. Mascott quotes a Kavanaugh article (that none of her links go to and I haven’t been able to google up) agreeing with Justice Scalia’s interpretive theory:

In constitutional disputes, Justice Scalia recognized that the courts have an essential role in aggressively protecting the individual rights actually spelled out in the Constitution. … But on the flip side, courts have no legitimate role, Justice Scalia would say, in creating new rights not spelled out in the Constitution. On those issues, he believed in complete deference to the political branches and the states.

(Except for corporate rights, of course, which are not mentioned anywhere in the Constitution, but were consistently upheld by Scalia and presumably will be by Kavanaugh as well.)

In particular, Kavanaugh seems likely to demand a clear text stating any individual rights he doesn’t approve of, like the right to privacy that Roe is based on. In a speech to the American Enterprise Institute last September, he praised Justice Rehnquist’s dissent in Roe v Wade, and his attitude towards “unenumerated rights” in general:

Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions [and] conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion.

Given that view, it’s hard to see how Kavanaugh could not reverse Roe, or the Obergfell decision finding a right for same-sex couples to marry. If people at the time were not applying their principles to such issues, how can we apply them now, even if they clearly do apply?

You have to wonder how far back Kavanaugh is willing to take that objection. I doubt, for example, that most of the congressmen and state legislators who voted for the 14th Amendment believed that “the equal protection of the laws” mandated racially integrated schools, as the Supreme Court unanimously ruled in Brown v Board of Education in 1954. Given the prevalence of segregated schools “both historically and at the time” of the 14th Amendment, Brown would be hard to justify.

July 16, 2018 – 10:59 am Categories: Articles | Comments (8)

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Trump doesn’t want skilled immigrants either

Last week I pointed out the fallacy that Trump only objects to illegal immigration, and is just trying to uphold US laws. (Not only is he separating families that have legally applied for asylum, he’s also going after legal immigrants who are trying to gain citizenship by volunteering for the military, and looking for excuses to void the citizenship of naturalized citizens.)

This week I want to expose another fallacy: Trump just wants a better class of immigrants, people with skills rather than the uneducated and desperate poor, who will just come here and go on welfare. In a speech to Congress a month after he took office, he said:

Nations around the world, like Canada, Australia and many others, have a merit-based immigration system. It’s a basic principle that those seeking to enter a country ought to be able to support themselves financially. Yet, in America, we do not enforce this rule, straining the very public resources that our poorest citizens rely upon. According to the National Academy of Sciences, our current immigration system costs American taxpayers many billions of dollars a year. [1]

But no, he doesn’t want skilled immigrants either, even if they are brought here by a company that wants to employ them. The RAISE Act, which the administration supported, would have favored immigrants its point system defined as meritorious, but would also have cut legal immigration in half. It’s arguable whether a high-merit immigrant is more or less likely to get in under those rules. But other rules are unambiguously negative for such people.

Jennifer Minear is a lawyer who consults with companies trying to bring in skilled workers on H-1B visas. In this interview, she describes how the US Citizenship and Immigration Services has changed its rules to harass and discourage such workers, as well as foreign students, whose tuition supports some of our top universities and who sometimes go on to found successful American companies that employ native-born citizens. According to new regulations, she says:

USCIS will issue a Notice to Appear on its own initiative and thereby place individuals in removal proceedings upon denial of an application or petition for immigration benefits if the person is deemed removable at the time of the denial. … Previously, if an application or petition for immigration benefits were to be denied, the foreign national might be able to depart the U.S. relatively quickly and either remain abroad or obtain approval for another visa that would enable him or her to return to the U.S. However, once an individual is issued a Notice to Appear, he or she is legally obligated to remain in the U.S. and appear before an immigration judge. … For most people, being placed in proceedings is a legal limbo where you are not lawfully present, yet not able to leave without triggering a bar on re-entry, and not able to work legally.

So suppose you’re a software designer from India who has an H-1B visa to work at, say, Google, and you apply for an extension. The backlog at USCIS might prevent the extension from going through before your visa expires. If your application is denied (more and more are, under Trump), you get an NTA. Now you’re in limbo until your deportation hearing: You can’t work, you can’t leave, and if you’re deported it will be harder for you to ever get a visa to come back.

If you’re a foreign student, your visa might get cancelled because your school screws up its paperwork. [2] An NTA might be your first notice that something is wrong. So you also wind up in limbo.

Minear concludes that many talented foreigners will hear horror stories like these and conclude that they don’t want to risk coming to the United States at all.

I think this policy memo represents another piece of a well-organized and systematic effort by the current administration to make the process of legal immigration to the United States as difficult as possible for both immigrants and the employers who sponsor them. … I fear that this policy, combined with others previously announced, will discourage the best and brightest minds from around the world from wanting to come to our country and contribute to our economy and culture. Indeed, that appears to be the intent of these policies – to frustrate and frighten people enough that they will not even attempt to navigate the process of coming here legally.

Other countries, especially developing countries, have long complained of a “brain drain” as their best minds pursue opportunities in the US. But under Trump, it appears we are planning to put a stopper in that drain ourselves. USCIS has also proposed

to rescind the final rule published in the Federal Register on January 17, 2017. The final rule established a program that would allow for consideration of parole into the United States, on case-by-case basis, of certain inventors, researchers, and entrepreneurs who had established a U.S. start-up entity, and who had been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.

So even if you are in the middle of starting a job-creating company here, you can’t come. The same document proposes a change that Stuart Anderson (who was the interviewer in the Minear article) describes like this:

Another more direct worry is the Trump administration has published its intention to restrict the ability of international students to work after graduation on Optional Practical Training (OPT), which allows for 12 months of work for students. OPT in science, technology, engineering and math (STEM) fields allows for an additional 24 months of work. Educators say OPT makes a U.S. education more practical and “real world.”

Anderson notes that international students have already started to avoid the US. There was a 4% drop in international enrollment between 2016 and 2017, with a 6% drop in graduate students in science and engineering, and a 21% drop in graduate students in science and engineering from India. This is a problem for US students and universities, not just foreigners, because foreign students are often cash cows that allow universities to provide more services to Americans.

About 90% of U.S. universities have a majority of international students among full-time enrollees in graduate level computer science and electrical engineering. If the number of international students in those fields declines significantly, then there will be fewer such programs available for U.S. students. Moreover, professors who rely on graduate students to conduct research are likely to relinquish their positions and pursue employment at companies, reducing the role of U.S. universities as a center of basic research.

So economically, the new Trump policies are probably destroying more opportunities for native-born Americans than they create. What’s the point of them, then? Perhaps it has something to do with what Trump claimed about European immigration this week in an interview with the English newspaper The Sun:

I think what has happened to Europe is a shame. Allowing the immigration to take place in Europe is a shame. I think it changed the fabric of Europe and, unless you act very quickly, it’s never going to be what it was and I don’t mean that in a positive way. So I think allowing millions and millions of people to come into Europe is very, very sad. I think you are losing your culture. Look around. You go through certain areas that didn’t exist ten or 15 years ago.

WaPo’s Philip Bump points out that “culture” is white nationalist code for race.

That argument — that immigration changes existing “culture” for the worse — is a staple of white nationalist rhetoric in the United States. Trump has never explicitly argued that immigration is a threat to white Americans, but he’s made numerous comments in the past that tiptoe around that point.

I don’t usually use the same cartoon two weeks in a row, but this one is perhaps even more on-point this week than it was last week.

[1] The EconoFact web site disputes this claim:

The evidence does not suggest that current immigrant flows cost native-born taxpayers money over the long-run nor does it provide support for the notion that lowering immigration quotas or stepping up enforcement of existing immigration laws would generate savings to existing taxpayers.

NPR’s Joel Rose looked up the study that Trump seemed to be quoting, and noted that it doesn’t really support his claim either.

Trump appears to be referring to this study published last year by the National Academy of Sciences. It found that “the impact of immigration on the wages of native-born workers overall is very small.” The study also found that first-generation immigrants are more costly to state and local governments. But the children of immigrants, on the other hand, are among the “strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.”

[2] Former INS associate commission Paul Virtue explains:

The key difference between the new policy and that established in September 1997 [in a memo Virtue wrote] is that under the new policy the date on which a person begins to accrue unlawful presence is not tied to an official determination. Therefore, an individual may learn only after the fact that he or she has already accrued months of unlawful presence and is left with no recourse for avoiding the 3- and 10-year bars to admission.

July 16, 2018 – 9:11 am Categories: Articles | Comments (2)

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The Monday Morning Teaser

So Trump is meeting Putin in Helsinki as I type this. We haven’t been told what this meeting is about, and it’s behind closed doors with no one but interpreters present, so we may never know. We can be sure that Trump will emerge from the meeting and declare it a great success, no matter how many concessions he yielded or how little he got in return.

Anyway, I’m not equipped to do breaking news, so I’ll try to suppress the temptation.

There will be two featured posts this week. The first one explores a different aspect of an issue I raised in the weekly summary last week: Trump usually frames his objections to immigrants in terms of illegal immigration of unskilled people, and talks about how we need to enforce our laws, while also changing them to claim a more useful class of immigrant. But that’s not really what’s going on. Last week I linked to articles describing how he’s making life harder for legal immigrants, and blocking their paths to citizenship. This week I’ll describe how he’s discouraging skilled immigrants from coming to America. The point is to keep America white; everything else is just rhetoric.

I haven’t titled that article yet, but it should be out before 9 EDT.

The second featured post will look at Judge Kavanaugh and ask what we could expect from him as a justice on the Supreme Court. There’s been a huge amount of speculation both ways about whether he would reverse Roe v Wade, and I’ll cover that, but a lot of other important issues are at stake: the government’s ability to regulate corporations at all, including worker-safety regulations; the survival of any right (other than corporate rights) not specifically listed in the Constitution; the Court’s willingness to reverse precedent; the limits of presidential power; the increasing partisanship of the Court; and so on. I’ll try to get that out by 11.

The weekly summary will discuss Trump’s tumultuous European tour, the new Mueller indictments, Peter Strzok’s televised testimony to Congress (which already seems so long ago, but it was Thursday), Jim Jordan, the administration’s declaration of victory in the War on Poverty, and a few other things, before closing with a very satisfying story about a guy tormenting email spammers. I’ll try for noon, but it may slip to 1 or so.

July 16, 2018 – 7:26 am Categories: Morning tease | Post a comment

Welcome to All

The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations And Religions.

– George Washington (1783)

This week’s featured post is “‘America First!’ means China wins.” I’ve been working on this piece for a few weeks and I’m pleased with it. Take a look.

This week everybody was talking about the next Supreme Court nominee

who is supposed to be announced in a prime-time extravaganza tonight. (Don’t watch. It only encourages him.) It’s tempting to speculate about who Trump will name, but it seems silly when we’ll know so soon. It’s not like any of the names being discussed are significantly better than the others.

What kind of opposition the nominee will face is another question. Politico asks the question “Will Susan Collins Get Snookered Again?“, which kind of answers itself. The article explains what a senator with Collins’ professed beliefs could do if she had some iron in her spine.

Here’s how she can get what she wants: partner with red-state Democratic senators, and anyone else who’s willing, and jointly announce that they will not vote for any nominee who isn’t the result of bipartisan consultation, in advance.

Trump would have to scrap his vaunted judges list, which Collins has criticized as too heavily influenced by the conservative Federalist Society. Either he nominates a ninth justice who will hold the center, or it’s a 4-4 court until the president relents.

It’s a fun scenario to think about, but it’s not going to happen because of the whole iron-in-the-spine thing. (An aside: I happened to be in Portland Friday, when I ran in to Collins’ Democratic challenger, Zak Ringelstein, who was standing on the Congress Street sidewalk shaking hands. I know nothing about him, but he looks like an energetic young guy.)

and the swamp

Scott Pruitt has finally resigned.

In an administration where the President’s company benefits from massive foreign-government investments, the President owes hundreds of millions to foreign banks, and the President’s daughter and her husband make tens of millions while being presidential advisors (at least some of it due to concessions from the Chinese), it is still possible to go too far. That’s good to know.

Pruitt was the most blatantly corrupt member of Trump’s cabinet. He openly took valuable favors from lobbyists and granted them favors, apparently in return. He treated the EPA staff as his personal assistants and wasted millions of public dollars on himself. He is the subject of 13 ethical or legal investigations. He covered up his cozy relationships with polluting-industry lobbyists by “scrubbing” his published schedule to remove questionable meetings, which violates government transparency laws. He demoted or reassigned underlings who raised questions about any of this.

Most of this illegal and unethical activity has been public for a long time, but Trump didn’t seem to care. Pruitt was doing what Trump and many Trumpists wanted: re-orienting the EPA to protect polluters from the law rather than using the law to protect the environment from polluters. His corruption was an acceptable part of that package. (Pruitt’s deputy, a former vice president of the Washington Coal Club and lobbyist for energy companies, will continue his work.)

In his resignation letter to Trump, Pruitt admitted nothing and apologized for nothing, citing only “unrelenting attacks” on himself and his family that have “taken a sizable toll on all of us”. Obsequious to the end, Pruitt closed his letter with the kind of flattery that used to be anathema within the American government, but is all too common in this administration, where expressions of praise and personal thanks to the president are expected from both cabinet secretaries and religious leaders.

My desire in service to you has always been to bless you as you make important decisions for the American people. I believe you are serving as President today because of God’s providence. I believe that same providence brought me into your service. I pray as I have served you that I have blessed you and enabled you to effectively lead the American people. Thank you again Mr. President for the honor of serving you and I wish you Godspeed in all that you put your hand to.

For contrast, look at Hillary Clinton’s resignation letter as Secretary of State and the statement Eric Holder made when he resigned as Attorney General. Both cited the good work of the people they had managed. (Pruitt’s letter reads as if he had worked alone.) They thanked President Obama for the opportunity to serve the country, not Obama personally. Holder referred to Obama as “my friend”, not as a superior being or an instrument of God’s plan.

That attitude towards government service — that equal citizens work together for the country rather than under a divine-right King who “leads” the People and “makes decisions for” the People rather than serving them — is an American thing, not a partisan thing. Look at Donald Rumsfeld’s resignation letter as President Bush’s Secretary of Defense. He compliments Bush’s leadership and wishes him well, but his good feelings are primarily directed outward, not upward towards the Great Man:

It has been the highest honor of my long life to have been able to serve our country at such a critical time in our history and to have had the privilege of working so closely with the truly amazing young men and women in uniform.

That’s what Americans sound like. Let’s not forget.

and trade war

Trump’s trade war with the rest of the world (China, Europe, Canada) had mostly been a lot of bluster until this week.

The United States just after midnight on Friday made good on its threat to impose sweeping tariffs on Beijing, putting a 25 percent border tax on $34 billion worth of Chinese goods imported to the US. China responded with $34 billion of tariffs of its own on its imports from America.

It’s been two weeks now since Harley Davidson announced it was moving some of its production to Thailand to avoid European Union tariffs that were imposed in response to Trump’s tariffs on European steel and aluminum. Competing manufacturer Polaris may do the same.

One of the most worrisome things about the trade war is that it’s not clear what would end it. Getting-tough-on-trade seems to be its own goal. What concessions does Trump want before he will call it off? No one seems to know.

Meanwhile, most of the pain is being felt in parts of the country that supported Trump in 2016. US soybean prices have approached 10-year lows, prompting calls for a farm bail-out. Mexico has already started buying more grain from South America. Reuters examines a Missouri county that sees both sides: Its aluminum smelter plans to re-open, but its farmers are worried.

and immigration

For some reason the Trump administration can’t seem to reunite the families it broke up, in spite of an approaching court deadline to do so. Washington’s Governor Jay Inslee put it in terms anybody should be able to understand: “I’ve seen coat check windows operate with a better system.”

A federal court in San Diego has issued an order that

gives the government until Tuesday to reunify children younger than 5 with their parents, and until July 26 for older children.

The government has asked for more time in general. Friday, the judge said no, but acknowledged that he might agree to a looser deadline in specific cases, if some special factor made that reasonable.

The government still doesn’t seem to grasp that it has done something horrible and needs to make it right. For example, HHS wants to be let off the hook for finding parents who have already been deported and getting their children back to them, because that would be hard. A further revelation came from Gov. Inslee, who tweeted:

My office recently learned the shocking revelation from that reunification could mean placing a separated child with ANY long-term sponsor — regardless of whether it’s their parents, other family in the US, family back in their home country or in long-term foster care.

Having been careless about taking the kids away, the government now wants to be extra-careful about giving them back. It’s insisting on DNA tests to match parents and children. What will happen to adopted children or step-children is anybody’s guess, and it’s not clear what the government will do with this highly personal information going forward.

One fact bears repeating every time this story is discussed: Coming the the United States to seek asylum is not illegal. Our laws obligate us to give asylum-seekers a fair hearing, and there is no justification for treating them like criminals. The question isn’t whether they will obey our laws, but whether we will.

Conservatives like to pretend that their problem is only with illegal immigration, but that doesn’t explain the behavior of this administration. Friday, AP reported:

Some immigrant U.S. Army reservists and recruits who enlisted in the military with a promised path to citizenship are being abruptly discharged. … The service members affected by the recent discharges all enlisted in recent years under a special program aimed at bringing medical specialists and fluent speakers of 44 sought-after languages into the military. The idea, according to the Defense Department, was to “recognize their contribution and sacrifice.”

Instead, the Trump administration has abruptly raised the standards on background checks, which either the soldiers fail (because “they have relatives abroad”) or the soldiers get discharged because the checks can’t be completed in a timely fashion.

Also, the US Citizenship and Immigration Service is going after immigrants who are already citizens. A task force is trying to identify people who may have lied on their applications for citizenship, even if it happened decades ago. The New Yorker’s Masha Gessen describes what that can mean:

Back in 1989, I had to make a decision about whether to lie on my citizenship application. At the time, immigration law banned “aliens afflicted with sexual deviation,” among others suffering from “psychopathic personality,” from entry to the United States. I had come to this country as a fourteen-year-old, in 1981, but I had been aware of my “sexual deviation” at the time, and this technically meant that I should not have entered the country. I decided to append a letter to my citizenship application, informing the Immigration and Naturalization Service that I was homosexual but that I disagreed with the exclusion and would be willing to discuss the matter in court. …

My application was granted without my having to fight for it in court. I hadn’t thought about my naturalization for years, but I find myself thinking about it now, thankful for the near-accident of not having lied on my application.

Gessen thinks twice, and realizes that she might have to lie if she were doing her paperwork today.

Question 26 on the green-card application, for example, reads, “Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime)?” (Emphasis in the original.) The question does not specify whether it refers to a crime under current U.S. law or the laws of the country in which the crime might have been committed. In the Soviet Union of my youth, it was illegal to possess foreign currency or to spend the night anywhere you were not registered to live. In more than seventy countries, same-sex sexual activity is still illegal. On closer inspection, just about every naturalized citizen might look like an outlaw, or a liar.

It seems more and more obvious that the primary goal of Trump’s immigration policy across-the-board is to delay the day when whites become a minority in the US. Talk about jobs or crime or security risks is just a smokescreen.

and the continuing discussion of civility

Here’s one contribution.

And Katha Pollitt at The Nation points out that the owner of the Red Hen Restaurant just gave the wrong reason for refusing service to Sarah Huckabee Sanders.

Instead of basing her objection on the discomfort of her LGBT staffers, she should simply have said serving Sanders was against her religion. She could have quoted Psalm 101:7: “No one who practices deceit will dwell in my house; no one who speaks falsely will stand in my presence.”

“Religion,” Pollitt observes, “gives you freedom of speech denied to your opponents.” At least if you’re Christian.

Claiming that religion gives you the right to harm your fellow Americans probably works best if you are Christian. Only Christians get to impose their religion on others. A Hindu wouldn’t get very far with a lawsuit to shut down the beef industry.

And if you want to be uncivil, it helps to be conservative.

No matter how vulgar, gross, threatening, cruel, illegal, and insane the right becomes, it’s always the left that is warned against piping up too loudly and in the wrong way. It’s like the old Jewish joke: Three Jews stand before a firing squad. Each is offered a blindfold. The first Jew takes a blindfold. The second Jew takes a blindfold. The third Jew refuses the blindfold. The second Jew elbows him and says, “Moshe, take a blindfold—don’t make trouble.”

but I noticed the Republican trip to Russia

Something very odd happened this week: A delegation of seven Republican senators and one Republican House member visited Russia over the Fourth of July break, hoping to talk to Putin. Putin was too busy to fit them into his schedule, so they met with their counterparts in the Russian Duma.

There’s some disagreement about the topics of discussion and the emphasis. Senator Richard Shelby sounded conciliatory, almost deferential.

“I’m not here today to accuse Russia of this or that or so forth,” Shelby told Duma speaker Vyacheslav Volodin. “I’m saying that we should all strive for a better relationship.”

In other words: Let’s forget all about the fact that you’ve been waging an information war against us and our allies, and just move on from here. It’s hard to imagine a weaker message. It’s like a bullied junior high kid saying “I’m willing to overlook that you’ve been stealing my lunch money. Let’s both strive for a better relationship.”

The Russians certainly didn’t seem impressed.

Duma member Vyacheslav Nikonov, on the other hand, said he had met with many American lawmakers in years past and that this meeting “was one of the easiest ones in my life.” The question of election interference, he said, was resolved quickly because “the question was raised in a general form. One shouldn’t interfere in elections — well, we don’t interfere.”

A few of the Republicans have tried to portray their message as much more stern. Senator Kennedy of Louisiansa

described the meetings as “damn frank, very, very, very frank, no holds barred.”

“I asked our friends in Russia not to interfere in our elections this year,” Kennedy said. “I asked them to exit Ukraine and allow Ukraine to self-determine. I asked for the same thing in Crimea. I asked for their help in bringing peace to Syria. And I asked them not to allow Iran to gain a foothold in Syria.”

I think it’s telling that Kennedy described himself as “asking our friends” rather than demanding that enemies stop attacking us. Senator Moran of Kansas told NPR:

There is no way that a Russian official, the people that we met with, could come away from those meetings without believing that we sincerely believe [election meddling] happened. We believe we have the proof that it happened, and that if anything is going to improve, it involves stopping what’s occurred to date.

But whatever was said, coming as a partisan group was very unusual, and that by itself sent a weak message. (By coincidence, I just finished reading John McCain’s recent book The Restless Wave. He tells many stories of being on foreign trips with Democratic senators like Joe Biden or Hillary Clinton. Traveling in bipartisan groups is the norm. Partisan groups larger than two or three senators are almost unheard of.) In December, Republican Senators Johnson of Wisconsin and Barrasso of Wyoming cancelled a trip to Russia when the Russians refused to give a visa to Democratic Senator Shaheen of New Hampshire. That sent a powerful message that Americans stand together, and that Russia can’t exploit our partisan differences.

This trip sent the opposite message: Republicans are willing to seek their own relationship with Russia, independent of the national interest.Of course, the Republican senators’ trip is just a prelude to the Trump/Putin summit in Helsinki next Monday, when the two leaders will meet with no one present but their interpreters. Meeting without advisors present is also very unusual, especially for a president who has so little foreign-policy experience and such sketchy knowledge of the issues between the two countries. They spoke privately once before, last summer at a G-20 dinner in Germany, where no other Americans were involved and only Putin’s interpreter was used.

There’s been a lot of speculation about why they would meet this way, but I have an interpretation that explains everything: Putin is giving Trump his annual performance review.

and you also might be interested in …

Trump is still working to sabotage ObamaCare. And he still has no plans to replace it with anything.

As we celebrated the 4th of July, a record low percentage of Americans reported that they are proud of their country.

In May, the White House released “President Donald J. Trump’s Blueprint To Lower Drug Prices“. So far, the drug industry isn’t cooperating.

The across-the-board increases cast doubt on whether Trump and Health and Human Services Secretary Alex Azar can pressure manufacturers to voluntarily drop prices without the threat of specific consequences.

One of the mysteries I’ve been studying in recent months is how Evangelicals manage to keep supporting Trump in spite of (1) his personal life contradicting all their standards of good character, and (2) his policies contradicting all the teachings of Jesus. Useful input on this question comes from John Fea, a historian at Messiah College in Pennsylvania.

Fea argues that Evangelical support for Trump arises from projecting a religious narrative onto American history: The US is a Christian nation with a divinely appointed destiny.

Ever since the founding of the republic, a significant number of Americans have supposed that the United States is exceptional because it has a special place in God’s unfolding plan for the world. Since the early 17th century founding of the Massachusetts Bay colony by Puritans, evangelicals have relished in their perceived status as God’s new Israel—His chosen people. America, they argued, is in a covenant relationship with God.

Like much of the Evangelical worldview, this idea is totally non-Biblical. (You’d have to do some serious stretching of the text to find some mention of America in the Bible.) It’s also false history. But Evangelicals have found their own pseudo-historians (David Barton being the most prominent) to promote the belief that the Founders intended to create the new Israel.

So why don’t real historians dispel all this nonsense?

We do.

We have.

But countering bad history with good history is not as easy as it sounds. David Barton and his fellow Christian nationalist purveyors of the past are well-funded by Christian conservatives who know that the views of the past they are peddling serve their political agenda. Barton has demonized Christian intellectuals and historians as sheep in wolves’ clothing. They may call themselves Christians on Sunday morning, but, according to Barton, their “world view” has been shaped by the secular universities where they earned their Ph.Ds. Thanks to Barton, many conservative evangelicals do not trust academic and professional historians—even academic and professional historians with whom they share a pew on Sunday mornings.

If you read the comments on Fea’s article, you’ll fine abuse from several Evangelical commenters. All of which proves Carl Sagan’s point:

One of the saddest lessons of history is this: If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle. We’re no longer interested in finding out the truth. The bamboozle has captured us. It’s simply too painful to acknowledge, even to ourselves, that we’ve been taken. Once you give a charlatan power over you, you almost never get it back.

No matter how low my opinion of this administration drops, I still get surprised sometimes: The Trump delegation at the World Health Organization strong-armed several small nations out of sponsoring a resolution to encourage breast-feeding.

Based on decades of research, the resolution says that mother’s milk is healthiest for children and countries should strive to limit the inaccurate or misleading marketing of breast milk substitutes. Then the United States delegation, embracing the interests of infant formula manufacturers, upended the deliberations.

… The Americans were blunt: If Ecuador refused to drop the resolution, Washington would unleash punishing trade measures and withdraw crucial military aid. The Ecuadorean government quickly acquiesced. … Health advocates scrambled to find another sponsor for the resolution, but at least a dozen countries, most of them poor nations in Africa and Latin America, backed off, citing fears of retaliation, according to officials from Uruguay, Mexico and the United States.

You know who finally stepped up to submit the resolution? Russia. For whatever reason, Trump never threatens Russia. (It would probably hurt his performance review.) So they get to be the good guys in this story.

and let’s close with something speculative

Inquiring minds want to know: Did Mary Poppins go to Hogwarts?

July 9, 2018 – 10:45 am Categories: Weekly summaries | Comments (10)

“America First!” means China wins

China either is already the world’s largest economy or soon will be. In order to compete for world leadership in the coming decades, the US will need to represent a community of like-minded nations, not go it alone.

America First. The foreign policy Donald Trump ran on came down to two words: “America First!”

He never spelled out exactly what policy agenda that slogan entailed — Trump 2016 was never the kind of campaign that constructed 12-point plans or posted white papers on its web site — but the attitude it expressed was clear: Both economically and militarily, the United States is the world’s 800-pound gorilla, and we need to start acting like it.

According to Trump’s populist critique, past administrations of both parties worried too much about principles like free trade and human rights, and invested too much of their hopes in multinational organizations like the UN, the WTO, and NATO. The Bushes and Clintons and Obama — and basically every president since Truman — tried to create a world of rules and mutual commitments, and failed to recognize something Trump finds obvious: Rules protect the weak. A world without rules is governed by the Law of the Jungle, and under that law the 800-pound gorilla always wins. That’s why he felt confident promising us “so much winning“.

To Trump and his followers, it makes no sense that the US has been trying to lead the world by setting a good example, rather than dominate it by telling other countries how things are going to work. It’s been crazy to keep our markets open when other countries close theirs, respect their intellectual property when they don’t respect ours, or extend our military shield over allies who don’t invest in their own armed forces the way we do. Our strength ought to get us a better deal, but it doesn’t because we keep volunteering to take a worse one.

So if it meant anything, “America First!” meant that it was high time we stopped volunteering to take the short end of the stick. Stop trying to create a world of rules that apply equally to everyone and stop averting our eyes when other countries cut corners. Instead, deal with every country one-on-one, a situation where our superior power will let us tell them what’s what. And what we will tell them is: “You need us more than we need you. So we win, you lose.”

During the campaign, examples of how Trump pictured this working would occasionally pop out: If we were going to liberate the Iraqi people from Saddam Hussein’s tyranny, we should have taken their oil to make it worth our while. If our military is going to keep defending Europe, they should pay us. Shortly after taking office he told the CIA the principle we ought to live by: “To the victor belong the spoils.”

Short-term and long-term. A year and a half into the Trump administration, we’re still waiting for those white papers and 12-point plans. (An anonymous staffer recently summed up the Trump Doctrine by expanding “America First!” from a two-word to a three-word slogan: “We’re America, bitch!“) But the outlines of a Trump foreign policy are starting to become clear: no TPP; no Paris Climate Accord; no Iran denuclearization deal; no UN Human Rights Council. We move our embassy to Jerusalem because we’ve taken Israel’s side, and aren’t trying to broker peace any more. We don’t accept other countries’ refugees. We insult our allies and leave them in the dark about our intentions. We can act like that because we’re America, bitch.

Once the Trump administration gets outside the restrictions of multinational agreements and into bilateral negotiations, it makes big demands and waits for other nations to back down, threatening terrible consequences if they don’t. Strangely, these tactics have yet to work anywhere. Mexico still isn’t paying for the wall and just elected a government more resistant to American pressure than ever. No one — not China, not Canada, not the EU — is knuckling under to our trade demands. North Korea gave us some pretty words, but doesn’t seem inclined to abandon its nukes.

Those problems, the administration assures us, are just short-term. As soon as other countries understand that we’re serious, they’ll realize who has the upper hand. Thursday night, Trump told a rally in Montana: “We’re going to win [the trade war with China] because we have all the cards.”

So far, that hasn’t been true: We hit them, they hit back — as if we were equals or something. But who knows? Maybe in the medium term Trump’s strategy works out. Maybe over the next year or so Canada and Mexico will decide that they do need to renegotiate NAFTA so that it tilts more in our favor. Maybe China and the EU will drop their reprisal tariffs and be content to let us buy less from them. Maybe we’ll get a new Iran deal that restricts their nuclear program for longer than Obama’s deal did, or adds provisions about ballistic missiles or exporting terrorism. Maybe the North Korea denuclearization agreement will turn into more than a handshake and a photo op.

I’d be surprised, but what do I know? Stranger things have happened.

But now let’s expand our time horizon and recognize one obvious fact: In the long run, it’s China who will be the world’s 800-pound gorilla. If the world is running according to the Law of the Jungle in 2030 or 2050, they win, not us.

How the US and China stack up. At the moment, China has around 1.4 billion people, about 1/6th of the world’s population and four times America’s. Per capita, it’s still a much poorer country than we are, but the national totals are starting to even out.

Depending on how you measure, China either has already overtaken us as the world’s largest economy or soon will. [1] It’s more-or-less inevitable: As Japan and South Korea and Singapore have shown, it’s much easier to bring your people up to a standard that some other nation has already achieved than to create an entirely new standard of wealth. So China’s GDP grows over 6% in a bad year, while ours grows 3% in a good year. [2]Over time that adds up. If China ever manages to achieve a per capita income that is just half of ours, its total economy will be twice as large. That will give it a leading role on the world stage.

Already China is flexing its muscles in terms of soft power. Its Belt and Road Initiative is a multi-trillion-dollar plan to rebuild Eurasia’s infrastructure around China-centered trade routes and financial institutions.

Think about what this means diplomatically. China can approach Pakistan with its plan for a Pakistan-China Economic Corridor. What’s our vision for Pakistan? China foresees a high-speed-rail network that connects Shanghai to Singapore and Bangkok. What do we foresee?

It may not happen right away, but over time you have to expect China to exert the kind of world influence that comes with being the world’s largest economy. They will have the tax base to outstrip us in military spending eventually, if they choose to. Someday Shanghai or Hong Kong might replace New York as the world financial capital. Already, China can challenge us as a regional military power in Asia. Eventually it will have the resources, if it wants, to challenge us around world — at least if we are foolish enough to take them on by ourselves.

We need allies. We need institutions. In short, this is a uniquely bad time for the US to set up the world to be dominated by an 800-pound gorilla. Because before much longer, that gorilla won’t be us.

For the United States to continue to be the world’s most influential nation, we’re going to have to rely on two factors that Trump wants to turn his back on.

  • We represent values that the world admires, not just our own money and power.
  • We lead a community of nations who share those values.

If those two things are true, then America is the leading member of a coalition China won’t be able to bully for a very long time, or maybe ever: ourselves, the EU, Japan, the English-speaking parts of the British Commonwealth, South Korea, Taiwan, and maybe a few other countries. As India, Brazil, and other nations achieve relative economic equality with the countries in that coalition, there’s reason to hope that they will find it a club worth joining.

Whatever you may think of how the Trans-Pacific Partnership turned out in its final form, this was the geo-political vision that got it started: We would not negotiate trade with China by ourselves, but would get together with a large number of like-minded nations to write rules of the road. Long-term, we hoped that China might someday accept our rules in order to get the benefits of belonging to our club. There are many reasonable arguments against the TPP as it eventually was negotiated, but to scrap it and replace it with nothing will eventually prove to be a huge missed opportunity. (Pulling out of the WTO, which Trump is reported to be considering, would be even worse.)

Going forward, we want to live in a world of multinational institutions, because in a world of bilateral agreements, more and more it will be China who tells other nations how things are going to be.

The benefits of being a benign superpower. Since the end of World War II, the United States has been the chief promoter and protector of the international financial system. Trump and his followers see only the costs of this role and ignore all the ways that it has enhanced American power.

In the world today, the dollar is the international currency. National banks of almost all countries hold large reserves of dollars, and international trade is denominated in dollars. Just about any international transfer of money at some point passes through the US banking system.

What this means is that the market for dollars goes well beyond the needs of the US economy. The Federal Reserve creates dollars at zero cost, by entering numbers into its database. Many of those dollars go overseas eventually, and we get real goods in return: cars, iPhones, oil, steel, and Ivanka Trump’s fashion line. This is the seldom-discussed flip side of our trade deficit: We get away with running that deficit — consuming more than we produce — because the international economy needs a currency, and the dollar plays that role. The dollar is our chief export.

Similarly, US Treasury bills are the world’s default investment. This has allowed us to finance our budget deficit year after year, without suffering any of the ill effects that budget hawks are constantly predicting: Our national debt hasn’t caused inflation. The dollar’s value hasn’t collapsed. We don’t have to offer higher and higher interest rates to get investors to loan us money.

Short of military attack, the most potent weapon we can aim at an adversary is to cut them off from the US banking system. When fully enforced, that sanction can reduce another nation’s international trade to barter, and induce it to invent elaborate and expensive money-laundering schemes. The sanction that hurts Putin’s oligarchs most is the Magnitsky Act, which prevents sanctioned individuals from using the US banking system. The Atlantic explains:

What made Russian officialdom so mad about the Magnitsky Act is that it was the first time that there was some kind of roadblock to getting stolen money to safety. In Russia, after all, officers and bureaucrats could steal it again, the same way they had stolen it in the first place: a raid, an extortion racket, a crooked court case with forged documents—the possibilities are endless. Protecting the money meant getting it out of Russia. But what happens if you get it out of Russia and it’s frozen by Western authorities? What’s the point of stealing all that money if you can’t enjoy the Miami condo it bought you? What’s the point if you can’t use it to travel to the Côte d’Azur in luxury?

Once your wealth is expressed in dollars and recognized by the US banking system, you can take it anywhere and do anything you want with it. But otherwise, it’s barely money at all.

In a lot of ways, our banking power is better than military power. Unlike tanks or even nuclear missiles, our enemies have no answer for it. What are they going to threaten in return — to cut us off from the Russian or North Korean or Iranian banking system? Why would we care?

You might ask: How did we get power like this? Why do other nations let us keep it?

And the answer is that we have been entrusted with this kind of power because (for the most part) we have used it benignly. In theory, the other nations of the world could cut us out of the picture by deciding to use the yen or the Euro instead, or by getting together and creating a truly international currency and a truly international banking system to go with it. But the new currency would be like the Euro on a larger scale: negotiating and managing that new monetary system would be a huge headache, and who knows what holes and glitches it might develop? It’s just much more convenient for everybody to stick with the dollar and the US banking system, because our occasional abuses of that power have stayed within reasonable bounds.

In short, we have been fairly faithful stewards of other nations’ trust.

Or, translating the same idea into Trump-speak: We’ve been suckers. We haven’t put America first. We haven’t used every tool at our disposal to drive other nations to the wall and make them do what we want.

But that’s why other nations trusted us in the first place. And over time, we have benefited a great deal from that trust.

Bad timing. During this era, when we can see China gaining on us in the race for power (and in some areas already beginning to pass us), it’s tempting to try to squeeze all the juice we can out of our superpower status before we lose it. It’s also the worst strategic decision we could possibly make. At best, such a policy might produce a brief flare of American brilliance before our power winks out completely.

Now more than ever, the United States needs an international system based on principles and enforced by international institutions supported by multilateral agreements that all parties can live with and see benefit from. We need a system that isolates rogue nations and draws them into the rules-based community. We need to stand for universally attractive ideals like democracy, human rights, and opportunity for all. If China wants to compete with us for leadership, let it compete to lead the ideals-based coalition we have assembled. Let it compete to be a more admirable nation or a better steward of the world’s trust.

On the other hand, over the next five or ten years there might be some gains to cash in by becoming a rogue nation ourselves, flouting the principles we previously tried to establish, undercutting international cooperation on issues like global warming, and imposing win/lose agreements on weaker countries. The international institutions we helped design would likely wither, and to the extent they survived they would become alliances against our abuses of power. As we turned inward, other nations would as well, and the world as a whole would become a less prosperous place.

None of this would thwart China’s rise. And as the American Era ended, our legacy would not be an international system of mutually beneficial principles, rules, and institutions, but a Law-of-the-Jungle world, where the 800-pound gorilla always wins.

Unfortunately, that 800-pound gorilla would be China. China would owe us a great debt of gratitude for establishing a world system that allowed it to throw its weight around, dominating smaller nations (including us). However, I suspect China would never feel obligated to offer us anything to settle that debt. After all, gratitude is for suckers.

[1] If you google “countries ranked by GDP“, you’ll see lists from various international organizations that make it look like we still have a wide lead. For example: $19.4 trillion to $12.2 trillion in the World Bank list for 2017.

However lists like that are suspect for the following reason: They usually start by estimating a country’s annual GDP in the local currency, and then convert that estimate to dollars using the current exchange rates. But it’s widely suspected that China’s currency is undervalued; that’s what gives it such a big advantage in trade. Once you adjust for that undervaluation, you get very different numbers.

Economists argue about how to make that adjustment. One complex tool called “purchasing power index” says that the Chinese GDP really represents $21.4 trillion of purchasing power.

That’s calculation is hard for a non-economist to follow, but one quick-and-dirty (not to mention amusing) method for comparing the value of products across currencies is to use the Big Mac Index: Express all prices in units of locally produced Big Macs, which are assumed to be more-or-less identical around the world. (Example: If an iPhone 8 costs about $700 and a Big Mac sells for $3.50, an iPhone 8 costs 200 Big Macs.) At current exchange rates, you can buy 1.8 Chinese Big Macs for the price of 1 US Big Mac. So (adjusting everything by a factor of 1.8) annual Chinese GDP represents a number of Big Macs that would sell for around $22 trillion in the United States.

[2] In his 2012 campaign, Mitt Romney made the wildly optimistic prediction that his economic policies would lead to 4% growth. If Chinese growth got down to 4%, it would be a national emergency.

July 9, 2018 – 8:32 am Categories: Articles | Comments (14)

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The Monday Morning Teaser

Tonight we get to find out just how bad Trump’s Supreme Court pick will be. I refuse to speculate.

The featured post is something I’ve been working on for a while. The main thesis is that we’re at a point in history where China is about to pass us in a variety of measures, and so this is the worst possible time for us to go it alone in an “America First” foreign policy. We have a few more years where we could reap some benefits by acting like the world’s 800-pound gorilla, abandoning all principles, and trashing multilateral agreements and institutions. But then we will start wishing we had those institutions and alliances to rein in China. Long-term, the only way we will be able to compete with China is by representing values that the world admires and leading a coalition of nations that share those values.

The post is called “‘America First!’ means China wins”. It should be out shortly.

The weekly summary will talk briefly about the Supreme Court (still refusing to speculate). Then I’ll discuss Scott Pruitt, the trade war, immigration, the Republican senators’ trip to Russia, the ongoing discussion of “civility”, and a few other things, before closing with a speculation that the first Hogwarts grad to headline a movie was actually not who you think.

July 9, 2018 – 7:33 am Categories: Morning tease | Post a comment

The Wrong Week

I picked the wrong week to quit sniffing glue.

– Lloyd Bridges, Airplane! (1980)

This week’s featured posts are “Minority Rule Snowballs” and “Giving up is a prerogative of privilege.”

This week everybody was talking about the Supreme Court

Not only did the Court end it’s spring term with a number of disappointing decisions — I listed them in the previous post — but we also got an additional piece of bad news: Justice Kennedy is retiring, giving Trump an opportunity to appoint his replacement while Republicans still control the Senate.

In general, Kennedy has been part of the Court’s conservative majority, as he was on several decisions this week. But in the past he has also sided with the liberals on a number of key social-issue decisions: most notably the series of cases leading to the Obergfell decision, which affirmed a same-sex couple’s right to marry, but also upholding Roe v Wade, which keeps Congress or the states from outlawing abortion altogether.

As the Court stands now, Alito, Gorsuch, and Thomas are doctrinaire far-right extremists, particularly on social issues. They routinely award special rights to Christians, and have only a hazy notion of the separation of church and state. (Thomas believes that the Establishment Clause of the First Amendment only prevents the federal government from establishing a religion. If Texas wanted to declare itself a Baptist state or Utah wanted to establish Mormonism, he’d be fine with that. I’m not exaggerating.)

If Trump appoints another Gorsuch to the Court, then Chief Justice Roberts becomes the fifth-and-deciding conservative vote. Roberts also has a conservative voting record, but is cagier than the other three: He seldom writes a ringing opinion that enunciates some new conservative principle, but instead has a way of seeming to re-affirm a previous decision while actually gutting it. (In 2012, for example, his vote upheld the constitutionality of ObamaCare, but did so by destroying the Commerce Clause justification Congress had in mind when it passed the law. He invented a much narrower constitutional basis for ObamaCare, which is now under fire in a new case. Similarly, he upheld the Voting Rights Act while destroying the main mechanism for enforcing it.)

So on social-issue cases — gay rights, civil rights, abortion, etc. — the typical decision will be a ringing piece of conservative rhetoric representing Alito, Gorsuch, Thomas, and the new guy, and then a more reasonable-sounding concurrence by Roberts that comes to the same conclusion on this particular case in a less sweeping way.

On economic issues, it won’t even be close: Roberts is an economic royalist; he’s for anything that increases corporate power, the influence of the 1%, or the voting power of the white Christian conservative bloc. Kennedy may have written the Citizens United opinion, but it was Roberts who maneuvered the case into position. Roberts is consistently anti-union and anti-consumer. He’ll support voter suppression and gerrymandering, as long as it has a fig leaf of alternative explanation.

I try not to speculate much on this blog, because I think way too much of the media’s “news” coverage is devoted to speculation about things that may never happen, rather than reports about what is happening. But I can’t resist here: In picking Gorsuch, Trump followed conservative orthodoxy. Gorsuch had appropriate experience and looked the part, so he might also have been appointed by President Rubio or President Cruz. I think in his second pick, Trump will want to make the point to Evangelicals that nobody else would have done this for them. That’s why they should be loyal to him personally rather than the GOP generally. So this one is going to be off the wall. If Roy Moore didn’t have that teen-age girl baggage, he’d be perfect.

Reportedly, Trump is using a candidate list created by Leonard Leo, until recently a vice president of the Federalist Society, an organization of right-wing lawyers. Trump has reportedly said he won’t ask candidates about specific issues like Roe v Wade, but that doesn’t reassure me for three reasons:

  • Undoubtedly Leo already has asked about Roe, and a judge who wasn’t sufficiently committed to overturning it wouldn’t be on the list. So Trump doesn’t need to ask; he already knows.
  • Trump lies and has no self-control. The fact that he says he won’t ask about something doesn’t mean much.
  • What really worries me is that Trump will ask for “loyalty”, as he did with James Comey. The Court may soon have to rule on questions like whether Trump can be subpoenaed, how far civil suits against him can go, and whether he can either pardon himself or pardon fellow members of a criminal conspiracy. I don’t want him negotiating a favorable ruling with judges as a condition of appointment.

Democrats currently have 49 senators. If they hold together against Trump’s nominee and John McCain’s health doesn’t allow him to attend, then only one Republican needs to cross over to block the nomination. Susan Collins said Sunday that she “would not support a nominee who demonstrated hostility to Roe v. Wade.” But as we saw in the tax-cut debate, Collins looks for reasons to go along, not reasons to resist. She happily settles for empty promises about tomorrow in exchange for a real vote today. So if the nominee says s/he hasn’t promised Trump anything about Roe, and professes a false open-mindedness in committee hearings, I’m sure Collins will be satisfied. When the Court finally overturns Roe she will tut-tut her disapproval, never admitting that she did nothing when she had the chance to prevent it.

and immigration

The government is still keeping about 2,000 immigrant children away from their parents. When the Trump administration took them, apparently it didn’t make any plan for how to return them. A judge has given them 30 days, and it’s not clear if they’ll meet that deadline.

OK, it’s official now: The Trump administration wants to replace family separation with family detention.

In federal court Friday night, Trump’s Department of Justice, led by Attorney General Jeff Sessions, filed an announcement that it is now keeping families in detention “during the pendency of” their immigration cases. That could easily mean months of detention (or longer) for some asylum-seekers — or, alternatively, a form of “assembly-line justice” that moves families’ cases through too quickly to allow for real due process.

The whole we-have-to-enforce-the-law chorus is ignoring an important point: The law says we grant asylum to people who face persecution in their home countries. If the Trump administration sends them home without a hearing or rams them through a kangaroo court, it is breaking the law. The rule of law means that laws don’t just apply to the powerless, they apply to the government too.

Hundreds of thousands of people attended protest rallies around the county Saturday, the largest being in Chicago, Washington, and New York. In little Nashua, NH, I was at a rally with about 400 others.

A slogan at many of this weekend’s protest rallies was “Abolish ICE”. Trump interprets this as an anarchic slogan that calls for no policing of the border and predicts “Next it will be all police.” Actually, the proposal is quite a bit more sensible than that, as Alt. U.S. Press Secretary explains in a tweet storm:

Let’s talk about : What it is and what it means. Does this mean getting rid of all border enforcement, or “open borders”? NO. ICE is an interior enforcement agency. They don’t guard the border. Who suggested abolishing ICE? ICE Special Investigators & Special Agents.

ICE consists of two portions with two differing missions. ICE HSI consists of trained investigators who handle highly significant drug tracking, child pornography, and other highly important translational law enforcement. And ICE ERO. ICE ERO does interior enforcement: Arresting people at courthouses, including domestic violence victims, and their places of work. Over 200 people have died in their custody. ICE routinely reallocates resources away from the important work of ICE HSI to ERO.

… ICE HSI and ICE ERO should be immediate separated within DHS, and ERO should be entirely restructured. In the interim, a more established agency such as FBI should manage both of the functions of both ICE HSI and ICE ERO.

and primaries

Progressive candidates did well in Democratic primaries Tuesday. Three in particular, in very different circumstances:

Alexandria Ocasio-Cortez defeated Rep. Joe Crowley, who was part of the Democratic House leadership. The race drew comparisons to Dave Brat beating Eric Cantor in 2014. Ocasio-Cortez is in New York’s 14th district, which is very blue. She seems very likely to hold the seat.

Ben Jealous won the Democratic nomination for governor of Maryland. The incumbent Republican, Larry Hogan, is very popular even though Maryland is a blue state. The conventional wisdom is that Jealous will lose, but that a centrist Democrat would have lost too.

Dana Balter defeated a candidate backed by the Democratic establishment in NY-24. This is precisely the kind of district Democrats need to win if they’re going to take the House: carried by Hillary Clinton but represented by a Republican. So this is a real test of the electability of progressives.

Alexandria Ocasio-Cortez tweeted:

A major point of my campaign: in the safest blue seats in America, we should have leaders swinging for the most ambitious ideas possible for working-class Americans. You’re largely not going to get gutsy risk-taking from swing-district seats.

This makes perfect sense to me. It’s the flip side of Doug Jones running on middle-of-the-road ideas in Alabama and Joe Manchin having some conservative positions in West Virginia.

and a new kind of mass shooting

Thursday, a gunman rampaged through the newsroom of the Capital Gazette in Annapolis, Maryland, killing four editors and a member of the advertising staff. Police charged Jarod Ramos, who was captured at the scene and had previously lost a defamation suit against the newspaper. Ramos is an MS-13 gang member Muslim jihadist angry white guy with a gun. His defamation suit was in regard to a story about his harassment of a former classmate whom he had re-contacted on Facebook.

If I had to pick out one class of people to watch closely for violence, it would be men who have had harassment/domestic violence issues with women. To me, they seem way more dangerous — to the general public, and not just to the women in their lives — than any group defined by race, religion, or country of origin.

Have you ever read one of Carl Hiaasen’s Florida novels? Carl’s brother Rob, apparently a first-class journalist in his own right, was one of the victims.

White House Press Secretary Sarah Sanders tweeted:

A violent attack on innocent journalists doing their job is an attack on every American.

Apparently, the White House only endorses Twitter attacks on innocent journalists doing their job, such as:

The FAKE NEWS media (failing , , , , ) is not my enemy, it is the enemy of the American People!

It’s a good thing the American People know not to take this “enemy” stuff literally. That Trump, what a kidder!

and you also might be interested in …

NBC News quotes five anonymous intelligence officers as saying that North Korea is in fact increasing its production of weapons-grade nuclear material.

U.S. intelligence agencies believe that North Korea has increased its production of fuel for nuclear weapons at multiple secret sites in recent months. … While the North Koreans have stopped missile and nuclear tests, “there’s no evidence that they are decreasing stockpiles, or that they have stopped their production,” said one U.S. official briefed on the latest intelligence. “There is absolutely unequivocal evidence that they are trying to deceive the U.S.”

The scenario that has most worried me since the Trump/Kim summit was announced is that Kim will take advantage of Trump’s tendency to exaggerate his accomplishments and his inability to admit mistakes. Having already taken a victory lap for getting Kim to talk about denuclearization (which North Korea has pledged many times before), Trump will be strongly tempted to deny or explain away any evidence that diminishes his premature claims of historic progress.

Puerto Rico appears to have drawn a conclusion from the federal government’s botching of Hurricane Maria recovery: It needs to be a state.

Rep. Jenniffer González-Colón (R) filed a bill on Wednesday that would pave the way for the island to become a state no later than January 2021. The measure is co-sponsored by 21 Republicans and 14 Democrats and fulfills the promises of González-Colón and Puerto Rico Gov. Ricardo Rosselló, who campaigned on a statehood platform and said statehood is a civil rights issue for Puerto Ricans.

I did a calculation as part of my article on minority rule: Puerto Rico has about the same population as Alaska, the Dakotas, Vermont, and Wyoming put together. Puerto Ricans are already American citizens, but they have no voting representatives in Congress. Does anybody doubt that if the island were populated by English-speaking white people, it would have been a state a long time ago?

There’s an ongoing debate about civility, which somehow is supposed to apply to everyone but Trump. I should say more about this eventually, but for now I’ll settle for this:

We’re at the stage of “just say shit and hope your base repeats it”. White House economic adviser Larry Kudlow says the federal budget deficit is “is coming down, and it’s coming down rapidly.” This contradicts figures from the administration itself:

The White House’s Office of Management and Budget says the deficit is rising from $665 billion in 2017 to $832 billion in 2018, and will approach $1 trillion annually in 2019.

We’re at the point in the economic cycle when classic Keynesian theory says the government should be running a surplus, not building towards one of the highest deficits in history. When the next recession hits — and one always does, eventually — tax receipts will fall, automatic payments like unemployment compensation will rise, and the economy will need a stimulus. If you start from a baseline of a trillion-dollar deficit, you might suddenly be looking at $2 trillion or $3 trillion.

and let’s close with something amusing

I can’t decide whether this is cute or cruel, but I can’t help laughing at how dogs react to seeing their humans disappear.

July 2, 2018 – 1:06 pm Categories: Weekly summaries | Comments (15)

Giving up is a prerogative of privilege.

There’s no point trying to sugarcoat it: This was an ugly week.

The biggest disappointments came from the Supreme Court, where the conservative majority does not seem to grasp the challenge Trump — and the larger pattern of minority rule I described in the previous post — pose to American democracy. It also has more or less abandoned one of the core principles of American jurisprudence: stare decisis, the doctrine that the current Court must work within the precedents of past Courts, unless and until they prove to be unworkable. This Court will do whatever it wants, regardless of precedent.

The Court’s spring term always ends in late June with a flurry of decisions, which are usually a mixed bag of good and bad. This batch was uniformly bad. The Court ruled that:

  • Trump’s ban on accepting visitors or immigrants from certain Muslim-majority countries deserves the benefit of the Court’s doubt, and should not be interpreted in light of the unconstitutional Muslim Ban he campaigned on and sought to implement in two previous executive orders. Neither should the Court examine too closely the flimsy national-security justifications the administration offers. Justice Sotomayor’s dissent reviews Trump’s anti-Islam statements both before and after taking office, and concludes: “In sum, none of the features of the Proclamation high­lighted by the majority supports the Government’s claim that the Proclamation is genuinely and primarily rooted in a legitimate national-security interest. What the unrebutted evidence actually shows is that a reasonable observer would conclude, quite easily, that the primary purpose and function of the Proclamation is to disfavor Islam by ban­ning Muslims from entering our country.” She contrasts the Court’s unwillingness to consider Trump’s anti-Islam statements with the seriousness it ascribed to Colorado officials’ lack of respect for the baker’s Christian beliefs in the Masterpiece Cakeshop case. But those were Christians and these are Muslims. As I have pointed out many times in the past, this Court grants Christians special rights.
  • Public-sector unions (which account for nearly half of the total union membership in the US) can’t insist that the workers they represent pay dues, as had been ruled constitutional by the Supreme Court in 1977. A worker who wants the benefits of the union-negotiated contract without contributing anything to the union is now free to make that choice. How unions of teachers and firefighters will survive is now an open question. Justice Kagan’s dissent points out that nothing (other than the personal beliefs of the justices) has changed to make the 1977 decision unworkable. “The majority … has overruled Abood because it wanted to.” This decision follows another in May that sharply limits the ability of workers to file class-action suits against their employers.
  • The Texas legislature’s gerrymander to maximize white power will stand, except for one state-legislature district. Justice Sotomayor dissents: “This disregard of both precedent and fact comes at serious costs to our democracy. It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process.” This decision follows a ruling earlier in June upholding Ohio’s voter-suppression scheme.
  • A California law requiring licensed family-planning centers to inform patients about their abortion options and unlicensed facilities to state clearly that they are unlicensed is likely unconstitutional, so an injunction against enforcing the law is warranted while court challenges proceed. The Court’s conservative majority finds that such a disclosure law violates the free-speech rights of centers that oppose abortion, but stands by previous opinions that centers performing abortions are obligated to inform patients about their adoption options. Justice Breyer’s dissent notes the implicit contradiction, and claims that the foggy reasoning necessary to justify it casts doubt on all public-disclosure laws.
  • The Court once again found a way not to defend the rights of same-sex couples against discrimination in the marketplace.

But that bad news was topped by the subsequent announcement that Justice Kennedy is retiring, allowing Trump to replace the swing vote on the Court. Many of us had hoped that Kennedy would look at Trump’s appointment of Neil Gorsuch and realize that retiring now would undermine his entire legal legacy. But apparently not. Adding another Gorsuch to the Court will undoubtedly lead to the reversal of Roe v Wade and undermine same-sex couples right to marry. But Kennedy appears not to care.

It was, of course, foolish to hope that Mitch McConnell would follow the principles he laid out in 2016 and refuse to hold hearings on such an important appointment without letting the voters weigh in. McConnell isn’t about principle, he’s about power. In 2016 he could claim power for his side by refusing to hold hearings or vote on Obama’s nominee; now he can claim power by approving Trump’s nominee as quickly as possible. He is, in this respect, perfectly consistent. Trump is expected to name his choice next Monday, and McConnell predicts approval in time for the Court to begin its fall term in October.

Quite likely, then, Trump is picking someone who will rule on his own legal issues: whether he can be subpoenaed or indicted, what payments the Constitution’s emolument clause forbids, whether he can pardon himself, when a pattern of self-serving pardons or other presidential prerogatives constitutes obstruction of justice, and so on.

And then, you know, we’re still holding children who we’ve taken away from their parents. Apparently, nobody thought about how to give them back.

So yeah, it was a bad week.

If you’re having a awfukkitt reaction, I hear you. This democracy thing just doesn’t seem to be working out. You vote, you demonstrate, you give money, you campaign, and what does it get you? Not only haven’t we made things better, we haven’t even stopped them from getting worse. Looking ahead, they’re likely to keep on getting worse at least until we get a new Congress, and who knows if we’ll even be able to do that? (See the previous post for more details.)

I don’t want to stop people who feel beaten down from taking care of themselves. If you need to take a step back to regain your sanity, if you feel your urge to engage coming from a shrill, wounded place that has never led you to do anything healthy or anything that turned out well, then by all means do what you need to do. Rest, re-center, get back in touch with your best self, and return to the fray stronger somewhere down the road.

But there’s also another awfukkitt reaction that I can see in myself and I want to speak out against: one that is rooted in my sense of privilege and seeks to protect my fragile sense of self-importance.

One of the speakers at the Keep-Families-Together rally I went to Saturday (in Nashua, NH, about a mile from where I live) was a minister who described himself as “the least discriminated-against person in America”. I could probably challenge him for that title: I’m white, male, educated, native-born, English-speaking, financially secure, straight, married, comfortable in the gender society assigned to me, free of any obvious disabilities, and so on.

People like me are not used to the idea of injustice. It isn’t something we run into every day. Life doesn’t force it on us. We volunteer for the fight against injustice, and we can’t help knowing at some level that we could always un-volunteer and go home to our un-discriminated-against lives.

Detective-novel fans know that there are two major types: the British detective novel (think Sherlock Holmes or Miss Marple) where a puzzle needs to be solved, but once the truth is known things will turn out right, and the American detective novel (think Phillip Marlowe or Sam Spade) where lots of people have known the truth for a long time, and the problem is getting them to do anything about it.

People like me live in a British-detective-novel world. We think that if we have a good case and tell enough people about it, of course the right thing will be done eventually. We are accustomed to being listened to. We expect our concerns to be taken seriously. It shocks us to confront the American-detective-novel world, where injustice has been around for a long time and could be around a lot longer. Making people see it isn’t the problem; making them do something about it is.

Our lives have not trained us for the situation we are in now. We usually don’t need moral stamina; we just need to understand what’s wrong and explain it to the right people. Then, taking care of it will be somebody’s else’s job. We’re weekend athletes. The first mile of the marathon was really energizing, but shouldn’t it be over by now? My side hurts. Can’t I quit?

And the scary thing is: Yes, yes I could. Nobody is going to break up my family. Nobody’s looking for some ancient infraction that will let them pull my green card. They’re not combing through my citizenship application from decades ago, looking for an error that will let them deport me. They’re not making it harder for me to vote. They’re not forcing a gender on me, or making me hide some important part of my identity. I don’t have to flinch when I see police. They don’t look at me like a criminal; they’re not going to be threatened if put my hand in my pocket; they’re not going to gun me down and ask questions later.

My health care might get more expensive, but I’ll manage. I don’t count on the minimum wage. Social security will be nice, but I won’t have to eat cat food if it goes away. Deregulation means I deal with more monopolies; corporations are more arrogant and probably their monopoly power costs me money, but I’m getting by. It’s a shame kids in Flint and a bunch of other places are getting lead poisoning, but I’m not.

I can’t un-know all that stuff. The temptation to be a “good German” and let the fascists do their thing will always be with me.

But I also can’t let myself rationalize what it means. There’s a moral death in that direction. Once you start not looking, not seeing, not worrying about things that don’t affect you, the part of the world you have to ignore keeps growing. Eventually, you have to start ignoring more or less everything.

So I don’t get to shrug and say, “Well, I tried. It just didn’t work.” The world is full of countries in much worse shape politically than the United States. The United States is full of people in much less hopeful positions than I am. Should they all give up too?

They can’t, because injustice doesn’t wait for them to notice it and decide they care about it. It gets in their faces and won’t leave them alone.

So OK: I explained the problem and nobody listened to me. I voted, I marched, I contributed, and things still got worse. That’s an unusual experience for me. My life hasn’t trained me for stamina. I’m used to races that are over by now. A voice in my head is saying, “This isn’t fair. I don’t want to play this game any more. Things shouldn’t be this way.”

But they are this way. I may not have trained for this race, but it’s the race I find myself in. I need to keep going.

July 2, 2018 – 11:19 am Categories: Articles | Comments (15)

Minority Rule Snowballs

When I did my annual end-of-the-year review in 2013, “the biggest single theme” I picked out was Minority Rule:

Republicans have given up on the idea of persuading a majority to agree with them. Instead, conservatives plan to rule from the minority.

I listed a number of the tactics they had been using: voter suppression, gerrymandering, and judicial activism among them. I didn’t expect these tactics to work nearly so well as they have. Consider:

  • In 2016, Mitch McConnell led a Senate majority that represented far fewer Americans than the Democratic minority. [1]
  • He used that minority-rule majority to radically change the way the Senate considers presidential appointments, blocking President Obama (who had defeated Mitt Romney 51%-47% in the 2012 election) from appointing a new swing vote on the Supreme Court. Instead, McConnell delivered that appointment to Donald Trump (who, even with the assistance of a hostile foreign power, lost the popular vote in 2016 to Hillary Clinton 46%-48%).
  • Trump’s appointee, Neil Gorsuch, was approved by the Senate 53-46. The senators voting for him represented far fewer Americans than the senators voting against him. [2]
  • Thanks largely to gerrymandering, Republicans in the House have a larger majority of seats than they have of voters. In 2012, Republicans won a 33-seat majority even while losing the popular vote. This year, as Democrats run considerably ahead in generic-ballot polls, political scientists argue over how big the Democratic voting margin needs to be to take control of the House. Is 5% enough? Seven percent? Eleven? One very likely outcome from this fall’s elections is that Democrats win a clear majority of voters, while Republicans win a clear majority of seats.
  • At the state level, things are often worse. Last year in Virginia, Democrats failed to gain a majority in the House of Delegates, despite a landslide 53%-44% victory in the popular vote. In North Carolina, the population is split relatively evenly between the two parties; Trump won the state with just under 50% of the vote compared to Clinton’s 46%, but the Democratic candidate won the governor’s race 49.0%-48.8%, despite one of the country’s most outrageous attempts at voter suppression. Meanwhile, gerrymandering gives the Republicans a 74-46 supermajority in the General Assembly, making Governor Cooper (and hence, the voters who elected him) virtually powerless.
  • Since Gorsuch joined the Court, several partisan gerrymandering cases have come up. The Court has not taken a stand. Gorsuch apparently does not even have a problem with racial gerrymandering.
  • Gorsuch was also the deciding vote in a 5-4 decision allowing purges of the voting roles in a manner than is likely to disenfranchise many legitimate voters while preventing virtually zero illegal votes.

In summary, minority rulers in Congress, the White House, and state capitals keep changing the rules to make it possible to rule with ever-smaller minorities. And a minority-appointed Supreme Court is fine with that.

A certain amount of minority rule was built into the Constitution in institutions like the Senate and the Electoral College, but I don’t think the Founders envisioned even those mechanisms becoming as skewed as they are today. [3] The Founders hoped the United States could avoid splitting into political parties, so they certainly never envisioned the vicious cycle of minority-rule entrenchment we’re seeing now: A political party centered in the small states that the Constitution favors (and representing the interests of the very rich) has used that extra boost of power to make the system increasingly more anti-democratic, giving themselves legislative and executive sway well beyond their voting numbers, making it increasingly difficult for the majority to vote them out, disenfranchising many citizens who might vote against them in the future, tearing down any limits on the use of money in politics, and packing the courts with judges who will rubber-stamp their power-grab.

With Justice Kennedy’s retirement, the minority-rule president and minority-rule Senate have a chance to appoint another Supreme Court justice, tipping the Court’s balance further in their favor for many years to come.  Jonathan Chait notes:

Democrats have won the national vote in six of the last seven presidential elections, which, with the retirement of Anthony Kennedy, will have resulted in the appointment of eight of the Supreme Court’s nine justices. And yet four of those justices will have been appointed by presidents who took office despite having fewer votes than their opponent.

We can expect this new justice to make it virtually impossible for the Court to limit or mitigate the techniques of minority rule. [4]

Increasingly, that minority-appointed and minority-approved Court majority has become nakedly partisan. Justice Kennedy’s opinion-of-the-Court in Citizens United is a flight of fantasy in which unlimited corporate money improves the public debate prior to an election, because money (even money from profit-making corporations seeking government favors) is speech, and “There is no such thing as too much speech.” Chief Justice Roberts’ gutting of the Voting Right Act contains very little legal reasoning beyond his vague assertion that “things have changed dramatically” since the first version of the VRA in 1965.

It is no longer necessary to understand the laws or the Constitution to guess which side the Court will favor: Whatever improves Republican chances in the next election is good law. The Constitution’s guarantee of “a republican form of government” increasingly leans on the word form; if the formal process of an election is carried out, it doesn’t matter whether the sovereignty of the People is respected.

We know where this process can go: The end result is plainly apparent in Putin’s Russia, where Potemkin elections are held on a regular basis. The path is laid out by authoritarian “democracies” in Hungary and Poland, whose rulers have not yet achieved Putin’s level of security against the People, but are on their way.

None of that is inevitable, but it gets harder to turn things around the further we go. If the Supreme Court won’t protect democracy, then we will have to count on elected officials to do it. If it takes a 7% margin to control the House, we need to get that 7% margin. If winning the popular vote by three million votes isn’t enough to elect a president, then we need to win by four million votes. Gerrymander-ending laws that can’t get through gerrymandered legislatures need to be passed by referendum.

If a majority ever regains power, it shouldn’t be shy about using it: We need a constitutional amendment that controls corporate political spending. Voting rights need protection, and gerrymandering has to be stopped — by legislation if the Supreme Court will allow it, and by amendment if it won’t. The Electoral College has to be abolished. Citizens without representation in Congress need to get it: Puerto Rico needs to be offered statehood, and the District of Columbia needs representation. Breaking up the big states needs to be on the table.

The sovereignty of the People is a principle that runs deep in the DNA of American voters, even those who might favor conservative social policies. We need to make them understand the trade-off they’ve been making: An American Putin would do many things they’d like, but is it worth surrendering the Republic?

If we’re going to pull this out, we need to have all hands on deck. Apathetic citizens need to be convinced to care and to vote. The canards that “it doesn’t really matter” and “both sides are the same” need to be rejected. For the next few cycles, and maybe for the rest of our lifetimes, democracy itself is going to be the most important thing on the ballot. It’s going to be on the ballot in every election from president to school board. It needs to win.

[1] I couldn’t find a source to reference, so I calculated for myself. (You can check me if you want.) From a list of the senators by state, I determined that in 2016, 20 states had two Republican senators and 16 states had two Democratic senators (counting Bernie Sanders and Angus King as Democrats), accounting for an 8-seat Republican majority (54-46). I then went to the 2010 census and added up: The 20 two-Republican states had a total population of 99,576,045 and the 16 two-Democrat states totaled 126,215,202. I had not expected the margin to be quite so wide.

[2] By the same methods as above, 22 states had two senators voting for Gorsuch and one (Georgia) had one for and one not voting, so I’ll count Georgia’s population for Gorsuch. Those states total 108,613,347. Eighteen states totaling 135,574,383 people had two senators voting against Gorsuch. The other states had one senator for and one against, which I’ll regard as canceling out.

[3] The first census, in 1790, showed that the most populous state was Virginia, with 454,983 free inhabitants. The least populated state was Delaware, with 50,207, a ratio of about 9-to-1. In the 2010 census, California had over 37 million people and Wyoming 568,300, a 66-to-1 ratio. If you combine the populations of the seven states with less than a million people — Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming — you have 5.3 million people represented by 14 senators. That’s 1/7th the population of California with 7 times the senators.

The situation gets worse when you consider the Americans not represented in the Senate at all: 3.4 million in Puerto Rico and 700K in the District of Columbia. Puerto Rico’s population almost exactly matches that of Alaska, the Dakotas, Vermont, and Wyoming put together; those states have 10 senators.

The situation is somewhat better in the Electoral College, but still considerably less fair than in 1790. The first census gave Virginia 21 electoral votes and Delaware 3; 9 times the population produced 7 times the electoral votes. But today California has 55 electoral votes to Wyoming’s 3; 66 times the population produces 18 times the electoral votes.

It’s also clear what the Founders’ solution would be: Break up large states. In their time, Kentucky was created from land claimed by Virginia, and Vermont from land New Hampshire and New York were arguing over.

[4] Trump’s legal situation creates yet another problem: Probably, the Supreme Court is going to have to make some serious rulings about whether the president can be subpoenaed, when a corrupt pattern of pardons constitutes obstruction of justice, and even whether the president can pardon himself. Trump may well be deciding those issues himself right now, by choosing a justice who will rule in his favor.

July 2, 2018 – 9:17 am Categories: Articles | Comments (7)

Tagged , |

The Monday Morning Teaser

OK, this was not our best week. If you went to one of the keep-families-together demonstrations on Saturday, you might have gotten energized by that. But overall, the news was pretty depressing.

As I warned last week, that sense of victory we felt when Trump appeared to reverse the family-separation policy was premature. It’s still uncertain whether or not the policy will come back or what will replace it. In the meantime, about 2,000 kids are still separated from their parents, and the government is either unwilling or unable to reunite them. We’re now seeing the spectacle of kids too young to know which country they came from facing an immigration hearing.

And then there was the Supreme Court. Every year, there’s a flurry of decisions at the end of the term in June, and usually there’s a little something for everybody. You’re happy about this, sad about that, you hoped for more here, and so on. This year, the news was uniformly bad. The Muslim ban, voting rights, gerrymandering, unions, gay rights … it all came out wrong. Some of the decisions were merely disappointing, while others were horrible.

And then, guess what? We found out that it’s going to get worse. Justice Kennedy is retiring. Unless a miracle happens, Trump will replace him with a clone of Gorsuch, making Roberts the new swing vote. Since Roberts is already Chief Justice, he’ll be the most powerful American jurist in a long, long time. If you know anything about him, that’s seriously bad news.

Personally, I bounce back and forth between being depressed and being energized, so I wrote two featured posts this week. The depressing one is “Minority Rule Snowballs”. Back in 2013, I outlined what I saw as the new Republican strategy: They were going to stop trying to appeal to a majority of the American people, and instead see if they could rule from the minority. That’s been way more successful than I thought was possible, and this post will describe how. It should be out shortly.

Then there’s a post about not giving up — actually, the depressing post ends with a riff on not giving up too — that I haven’t titled yet. When I look at the aw-fuck-it temptation in my own heart, it’s uncomfortably rooted in my sense of privilege. That’s why I wasn’t prepared for a decades-long struggle against fascism: Once people like me get mobilized, what we want is supposed to happen pretty quickly. And it’s also why I imagine that giving up is an option: If the worst happens, I could easily melt into the population of “good Germans” who get along relatively well.  Aw-fuck-it-we’re-going-to-lose-anyway is a much too easy way out. If the Gandhis and Kings and Mandelas had gone that way, the world would be a much worse place.

So let’s call that for 11 EDT and the weekly summary for noon or so.

July 2, 2018 – 8:37 am Categories: Morning tease | Comments (2)