Tag Archives: immigration

The Shutdown, DACA, and Immigration: Where We Are

A few hours after last week’s Sift posted, a compromise ending the 3-day government shutdown, at least temporarily, passed the Senate. By evening President Trump had signed it, and federal employees returned to work Tuesday morning.

Here’s what was agreed to:

  • A continuing resolution maintained previous spending levels for another three weeks, until February 8.
  • The Children’s Health Insurance Program was reauthorized for another six years.
  • Three taxes that were part of the Affordable Care Act got delayed for a year: on medical devices, on so-called “Cadillac” health insurance plans, and a general tax on health insurance plans. The expected increase in the deficit is $31 billion.
  • A number of Republican senators agreed to work on a bill to protect the Dreamers from deportation, and Majority Leader Mitch McConnell agreed to let such a bill come to a vote in the Senate.

On the left, many angrily charged that the Democrats had “caved”, and that the Dreamers had been betrayed or abandoned. I don’t see it that way. For the most part I agree with Ezra Klein’s view: that if no larger agreement can be reached in the meantime, Democrats will be in a somewhat better position on February 8 than they were last Monday:

if Democrats do need to shut down the government in three weeks, they’ll do so with the Children’s Health Insurance Program funded for six years, rather than seeing it weaponized against them. That’s a big deal, both substantively and politically.

McConnell’s promise may or may not amount to much in itself, but I think it matters in the public perception. If some kind of DACA compromise can pass the Senate, the House can still kill it, but that will have a price.

What matters in a shutdown. The American public doesn’t like government shutdowns. Government workers and contractors don’t like not getting paid. People who depend on government services don’t like doing without them. Families don’t like being turned away at national parks.

For the two major political parties, it’s not even a zero-sum game; it’s a negative-sum game. A common knee-jerk reaction to a shutdown is to blame both parties and lose a little more faith in American democracy. (In a parliamentary system, failure to fund the government would result in new elections.) The only political justification for causing a shutdown is if you believe that the blame will overwhelmingly be charged to the other party. If that’s true, then it tends to snowball: More and more of the public doesn’t understand why the party that is losing the shutdown doesn’t give in.

How this one was playing out. At the outset, there was good reason to blame the Republicans: They control all three power centers, after all.

What’s more, the main issue on the Democratic side is a popular one: Hardly anybody wants to see the Dreamers deported, which could start happening in March, thanks to Trump’s executive order reversing Obama’s DACA executive order.

The problem is that support for the Dreamers among the general public is shallow. Lots of people sympathize, but not that many are willing to make sacrifices. Worse, Republicans had cynically held CHIP back as a bargaining chip rather than reauthorizing it back in September. No one was really against CHIP, but Ryan and McConnell saw it as something they use in precisely a situation like the one we just had.

So if the shutdown continued, the messaging war looked like it might turn around to favor the Republicans: Democrats were blocking a deal that included CHIP because it didn’t include DACA, so they were hurting kids to help illegal immigrants.

Schumer could see that snowball starting to roll, particularly in red and purple states where Democratic senators have to run for re-election in November, so he got out quickly, before any of the vulnerable Democratic senators felt like they had to defect.

Standing up for something. Schumer’s critics say that the Democrats should have made a stand. The problem with making a stand on a shutdown is that a shutdown doesn’t end in some natural way. Democratic stands on ObamaCare and the Republican tax cut ended: one in victory and the other in defeat. They are issues to take to the voters in 2018.

But a shutdown doesn’t end until somebody gives in, and if the other side is happier with their position than you are with yours, they’re not going to be the ones. So the question becomes: How far are you willing to take this? What if it gets to be March and the Dreamers start getting deported anyway? What if it gets to be June and nobody can go to Yellowstone? What if it’s November and voters are going to the polls? How far?

The endgame, in that scenario, is that Democratic senators defect one-by-one until the Republicans can pass what they want. Schumer didn’t want that.

The next showdown. Instead, he maneuvered, hoping to reach February 8 with a position that would be easier to defend. I think he succeeded at that: CHIP will be off the table. McConnell either will or won’t have allowed a vote on a DACA compromise. If he doesn’t, that’s another simple argument the public can understand: We tried to bargain in good faith, and the other side wouldn’t.

The ideal scenario for Schumer is that a DACA compromise passes the Senate before February 8, hopefully by a wide margin. (In 2013, the Senate passed an immigration bill 68-32.) It’s not clear that McConnell would be against this.

The fate of all immigration compromises is in the House, where they would also pass if they could get to the floor, but the Republican leadership blocks them. That sets up a shutdown demand that I think Democrats can sell: Ryan doesn’t have to support the Senate’s DACA compromise, he just has to let the House vote on it. Let my people vote!

An additional point is that the longer the DACA negotiations stay on the front pages, the more the Republicans undermine their own most popular arguments. What Trump wants in exchange for DACA isn’t just border security, but a sharp reduction in legal immigration, and a shift towards more white immigrants. That supports the Democrats’ main point: The whole issue isn’t about legality, it’s about race. It’s about Making America White Again.

Even if a permanent solution isn’t reached — that’s the current conventional wisdom, which could change —  a deal that prevents deportation temporarily and leaves the ultimate verdict to the 2018 voters is not the worst outcome.

Conclusion. In short, I think Schumer abandoned a losing position in order to set up one with more possibilities. I’m withholding judgment until I see how this plays out.

Lies, Damned Lies, and Trump-Administration Terrorism Statistics

If you define your categories just right, you can create the illusion that Trump’s Muslim ban has something to do with terrorism, and justify an irrational fear of immigrants.


Last February, President Trump told a lie to a joint session of Congress:

According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.

He used this claim to justify his executive order to keep people from seven (later reduced to six) Muslim countries out the United States.

Tuesday, the Departments of Homeland Security and Justice published a report to back up Trump’s lie. The Lawfare blog explains how you have to manipulate the data to support Trump’s claim and his executive order:

  • Substitute “international terrorism” for “terrorism”, so that you can ignore all the instances of domestic terrorism, where most of the perpetrators are native-born. When Wade Michael Page killed six people at a Sikh Temple in Wisconsin, for example, that would probably have been classified as domestic terrorism (if Page hadn’t short-circuited the legal process by killing himself). Dylann Roof’s shooting of nine at a black church in Charleston wasn’t classified as terrorism at all; it was a hate crime. Nobody knows what to call the Las Vegas shooting, but if shooter had been from Yemen it would of course count as “international terrorism”. The report considered only federal convictions, but according to another Lawfare analysis: “Other crimes that could easily fall under the domestic-terrorism umbrella are charged at the state level, making them even more difficult to track.”
  • Include nearly 100 foreign-born terrorists who didn’t come here, but were extradited here so that we could prosecute them. Imagine that we hadn’t killed Osama Bin Laden, but instead had brought him to New York and convicted him of conspiring in the 9-11 attacks. The HS/DoJ report would then count him as a foreign-born convicted terrorist. In addition to such foreign conspirators whose role in terrorism didn’t involve entering the U.S., our terrorism laws also cover attacks against American citizens on foreign soil, where American border security isn’t relevant in any way at all. So if Ahmed Abu Khattala is convicted of participating in the Benghazi attack, he will count as a foreign-born convicted terrorist also.
  • Fudge the difference between foreign countries in general and the ones mentioned in the travel ban. Even if you accept HS/DoJ’s skewed set of categories, the resulting analysis doesn’t support Trump’s executive order. Lawfare says: “The six listed countries are not among those with the greatest representation on the list of terrorism-related convictions from 2001 to 2015. Only one — Somalia — is even in the top five, and it ranks fifth.” For example, Saudi Arabia (not on Trump’s list) accounted for 15 of the 19 9-11 hijackers. None of the other four came from listed countries.

So what would happen if you did an honest analysis of the foreign-born role in American terrorism? Lawfare’s Nora Ellingsen and Lisa Daniels  found some of the flaws in the data too difficult to overcome (like the domestic terrorists charged under hate-crime and other non-terrorism laws), but ignoring those problems (which they admitted would still make their numbers too high), they made an attempt back in April.

So what would the numbers look like if we excluded extradited subjects while including all of these domestic terrorists—the approach that seems to us the unbiased way to express the real rate at which foreign-born, as opposed to domestic-born, people are committing terrorist or terrorism-related crimes?

If we clean up the data to account for the issues described above, instead of accounting for between 63 and 71 percent of terrorism convictions, foreign-born persons would likely account for only 18 to 21 percent of terrorism convictions.

Quartz pointed to another problem: Both the HS/DoJ report and its clean-up by Lawfare count not just acts of terrorist violence, but also “terrorism-related” crimes that could be just about anything.

[T]he vague term “terrorism-related charges” inflates numbers by including not just people who broke laws “directly related to international terrorism,” but others who were convicted of totally unrelated offenses, such as fraud or illegal immigration in the course of a terrorism-related investigation. … One example of how this can happen is the case of three Middle-Eastern grocers who were convicted for stealing boxes of Kellogg’s cereal in 2000 — but remained on the list of terrorism-related cases because the Federal Bureau of Investigation questioned them after a source inaccurately tipped agents that the three men had tried to buy a rocket-propelled grenade.

Another problem in the data: Maybe the Feds find so many “terrorism-related offenses” among people born in Muslim-majority countries because that’s where they’re looking. For example, the HS/DoJ report tells about Uzair Paracha, a Pakistani convicted of “providing material support to al Qaeda”. He was never connected to any actual act of terrorism, but was convicted of helping somebody whose hazy plans “to attack gasoline stations” never got specific enough to carry out. (The plot to bring him back into the U.S. failed, but exactly what he would have done if he got here is unclear.) The somebody “discussed” giving Paracha and his father $200K in exchange for their help, but the money never actually changed hands, and maybe never existed in the first place.

I have to wonder: If the Feds went after domestic terrorist groups with equal vigor, if they put all known white supremacists under constant surveillance and interpreted every big-talker’s violent fantasy as a “plot” that turned all his listeners into “conspirators”, how many additional terrorism-related convictions could they add to their total? (Dear FBI: In bars, I have materially aided plots against the Koch brothers by buying the next round. None of us had any weapons or knew exactly where the Kochs live, but if stuff like doesn’t matter, we’re guilty.)

In short, the numbers in the report really have nothing to do with the terrorist tendencies of immigrants or refugees, and say nothing about whether we need to change the way we let foreigners enter the United States. They’re just artifacts of the way the terms are defined. They do not at all support the White House’s subsequent claim that “Our current immigration system jeopardizes American security.”

And finally, the Cato Institute’s Alex Nowrasteh puts the whole foreign-born terrorism problem in context:

[Between 1975 and 2015], the chance of an American being murdered by a foreign-born terrorist was 1 in 3,609,709 a year. The chance of an American being killed in a terrorist attack committed by a refugee was 1 in 3.64 billion a year. The annual chance of being murdered by somebody other than a foreign-born terrorist was 252.9 times greater than the chance of dying in a terrorist attack committed by a foreign-born terrorist.

So if the Trump travel ban isn’t about terrorism, what is it about? Nativism.

What picks those countries out is that their residents are largely non-white Muslims, and (unlike Saudi Arabia, which is a much larger source of both terrorists and material support for terrorism) the Trump Organization has no business interests there. If you think of America as a white Christian nation, and worry that it’s losing that identity, then you don’t want people coming here from Iran, Libya, Somalia, Sudan, Syria or Yemen.

If you’re also against letting in brown-skinned Spanish-speakers from Mexico or Central America, you’re happy to lump them in with the “foreign-born” as well. That’s all that’s going on here.

The Real Immigration Issue

“Illegal” immigration has always been a red herring. The more fundamental question is whether the United States will continue to be a country dominated by English-speaking white Christians.


When an issue sharply divides America, we tend to avoid discussing our real division, and instead fight proxy wars about side issues. So, for example, our legislatures and our election campaigns seldom engage the real debate about abortion: A large chunk of the country strongly believes that abortion is a difficult decision that a pregnant woman needs to make for herself, possibly in consultation with her husband, parents, friends, and doctors. Another large chunk believes that abortion is a form of murder and so the government should forbid it, possibly punishing the people involved.

But day-to-day, neither of those positions is discussed by our pundits or politicians. Instead, they raise smaller, related issues that they hope will push the battle lines in the direction they want: Should late-term “partial birth” abortions be legal? Should abortion be legal after a fetus has a detectable heartbeat or can experience pain? (And when is that?) Should abortion (or forms of birth control that could result in the loss of a newly-fertilized ovum) be covered under Medicaid or ObamaCare? Such debates are like the occasional shooting wars that erupted out of the Cold War. The underlying struggle — the U.S. vs. the U.S.S.R. — always stayed under wraps, while the actual battles were fought in Korea or Vietnam or Angola.

For a long time, something similar has been going on with regard to immigration. Anti-immigration politicians and pundits want to talk about “illegal” immigration: the people (usually estimated to number around 11 million) who live in the U.S. without official permission. Some sneaked across one of our borders and have never had any legal status, while an almost equal number came through our ports-of-entry legally as tourists and then overstayed their visas. But however they got here, the anti-immigration folks say, they should leave. It’s nothing personal or racial; it’s just about the rule of law and maintaining border security. And even more than the generic undocumented immigrant, they want to talk about criminals like the M-13 gang, the people President Trump primarily blames for the “American carnage” he made the centerpiece of his inaugural speech.

Meanwhile, pro-immigration politicians and pundits want to talk about the Dreamers: undocumented residents who were brought here as children and know no other country. Or about refugees who came (or want to come) from Syria or Haiti or some other country stricken by natural disaster or war. Or Latin American children whose parents sent them away to America rather than see them forced to become either soldiers or prostitutes for local drug gangsters. Whatever your views on immigration in general, pro-immigration voices say, these are human beings in trouble who deserve our compassion.

It’s easy to get drawn into the details of any of these issues, and find yourself listing victims of illegal-immigrant crime, or correcting misconceptions about DACA or the refugee-screening process. But it’s always worthwhile to remember that these aren’t the fundamental issues; these are proxy wars, and the energy behind them comes from somewhere else.

The more important groupings, the U.S/U.S.S.R. of this struggle, look more like this:

  • One side likes living in a multi-cultural society, and believes that America is stronger because it draws ambitious, freedom-loving people from all over the world.
  • The other side sees the U.S. as a white, Christian, English-speaking country. They believe we can tolerate and assimilate a certain number of people who don’t fit that description, but beyond a certain point (and we’re getting well beyond it now) we will lose our national identity.

Occasionally, some comparatively trivial comment draws the line between these two groups very sharply. For example, when the founder of Latinos for Trump said: “My culture is a very dominant culture. It is imposing and it’s causing problems. If you don’t do something about it, you’re going to have taco trucks on every corner.”

The second group knew exactly what he was talking about: The America they grew up in is in danger of being overrun by people who eat differently, speak differently, and probably live totally different lives than they do. “I’m losing my country,” they believe. But the first group responded to the taco-truck vision with something like: “That would be fabulous. I can never find taco truck when I want one.” Or a truck that sells falafels or sushi or samosas.

Unsurprisingly, this is largely a rural/urban split. If you grew up someplace like San Francisco or New York City, being surrounded by people of all colors chattering in all sorts of languages feels normal, and the idea that this represents a threat to the essential identity of America seems absurd. (Whites are already a minority in California. But when I’ve been there, it still feels like America to me.) But if you’re accustomed to living in a small town that has only recently begun to have a sizeable non-white minority, that not-like-us presence can seem dangerous. Who knows what is going on inside those mosques and temples, or what is being discussed in those foreign languages? Maybe they’re insulting us, making fun of us, or plotting some violence against us. How would we know?

The result is a bit perverse: The native-born English-speaking whites who seem to be in the most danger of being overrun by immigrants — the ones in the polyglot cities — are precisely the ones most comfortable with a vision of a multi-cultural future. But those in the least danger are the ones easiest to rile up against Sharia law or M-13 gangsters or taco trucks on every corner.

The Trump administration has consistently put forward policies that reflect the nativist, keep-America-white position. But they  haven’t promoted it openly, hiding instead behind rhetoric about illegal or criminal immigrants. However, look at what they’ve done:

All of these actions are directed at legal immigrants and visitors. They submit (or have submitted) to a legal process, we know who they are, we have a chance to investigate them. We just don’t want them here.

Even with regard to undocumented immigrants, the Trump administration’s actions belie its rhetoric. The rhetoric is all about criminals, “really bad dudes” as Trump has said many times. The reality is quite different. ICE frequently targets undocumented people living otherwise normal lives, supporting families by working exhausting low-wage jobs. This week, ICE launched a nationwide campaign of raids not on drug dens or underworld hangouts, but on 7-Elevens — 98 stores in 17 states. That brown-skinned girl making your Slushie is the threat Trump wants to protect you from.

Unless some deal is reached — and Trump insists on getting a price for this “concession” — the government is going to start deporting Dreamers in March. (Or at least it was, until a court ordered the administration to keep taking renewal applications. “These allegations raise a plausible inference that racial animus towards Mexicans and Latinos was a motivating factor in the decision to end DACA,” the judge wrote. The administration is obeying the order while it seeks to reverse it on appeal.) There is nothing criminal about Dreamers; the decision ignore the legal immigration process was their parents’, and a felony or significant misdemeanor would make them ineligible. They are no threat to national security or public order. The only reason to expel them is that Americans don’t want them. Or at least some Americans don’t.

We can only hope that Trump’s recent comment about “shithole countries” will shift the immigration debate onto the fundamental issue that is really at its core: Is America a set of ideals that anyone can adopt, or is it an ethnic tribe you need to be born into? Is it about a democratic form of government pledged to defend individual rights? Or is it about being white, speaking English, and loving Jesus?

Because what Trump was questioning at the time were plans for legal immigration from Africa, from Haiti, and from El Salvador. “Why are we having all these people from shithole countries come here? … Why do we need more Haitians?” He then asked why we couldn’t have more immigrants from countries like Norway instead. [1]

It’s not that we have no room left for immigrants, it’s that they’re wrong color. They don’t fit the “ideal American” stereotype many of us carry around in our heads. They make white English-speaking Christians feel like they’re losing their country.

That’s the real issue. It’s the issue Trump’s immigration policy is based on, why his base stands by him. It’s an issue we need to debate, without getting distracted by the red-herring issues of documentation.


[1] In general, people don’t leave their home countries if life is going well there. That applies to most white Americans also. (Consider, for example, the Irish Potato Famine or the pogroms that brought many Eastern European Jews to this country.) It’s also the answer to Trump’s question about bringing in more Norwegians: Life is good in Norway, so few of them want to come here.

Taking Hostages

In one setting after another — DACA, Iran, ObamaCare — Trump has set a clock ticking towards disaster in hopes of getting concessions from Congress.


During the Obama years, I frequently found it necessary to explain the difference between negotiating and hostage-taking. If we’re negotiating, I push for what I want, you push for what you want, and we hope to meet somewhere in the middle. But if I demand that you give me what I want, under the threat that otherwise I’ll send us into a scenario that NO ONE wants, that’s hostage-taking. The defining mark of a hostage-taker is that the demand for cooperation unaccompanied by any positive offer: My proposed “compromise” isn’t that you’ll get some of what you want, but that I’ll remove a threat of my own making. “Do what I say and nobody gets hurt.”

The clearest examples of hostage-taking in recent American politics have been the debt-ceiling confrontations of 2011 and 2013, as well as the occasional posturing over the debt ceiling we still see from time to time. If Congress ever actually does refuse to raise the ceiling on the national debt, the country will be thrown into both a constitutional and an economic crisis that will benefit no one (possibly not even our enemies, who might get caught in the global economic downturn likely to follow the market’s loss of faith in U.S. bonds). In 2011 and 2013, Republicans wanted President Obama to agree to deep spending cuts and the end of ObamaCare. What they offered in exchange was nothing, beyond dropping their threat to set off a global crisis.

Recently, the Trump administration has brought us something I don’t think the U.S. has ever seen before: presidential hostage taking. American presidents usually assume that they’ll be blamed for whatever goes wrong, so they have nothing to gain from taking hostages; any catastrophe that spins out of the confrontation will ultimately be charged against them. But Trump has an unfortunate combination of character flaws that we’ve never seen in a president before:

  • He seems not to feel empathy for the people his policies might hurt.
  • He is convinced that no bad outcome can ever be his fault. If he sets up a confrontation that results in disaster, that just demonstrates that his enemies should have given in to him.

The failure of brute force. In the first half-year or so of his administration, Trump believed he didn’t need Democratic cooperation. With Republican majorities in both houses of Congress, he thought he could ignore Democratic resistance and win by brute force. In his first confrontation, that strategy worked: Nominating Neil Gorsuch to the Supreme Court gave Trump’s base what it wanted without offering Democrats any hint of compromise. A Democratic filibuster was defeated not by convincing any Democrats to support Gorsuch, but by eliminating the filibuster on Supreme Court nominations. Take that, Democrats!

But from spring into summer, right up to the September 30 reconciliation deadline, repeated attempts to win a brute-force victory on healthcare failed. Offered nothing, Democrats stayed united. But Republicans didn’t, so the small Republican majorities in both houses weren’t enough to push a bill through.

Trump’s current policy push, a tax-reform package centered on a major cut in corporate taxes, seems headed for a similar outcome. A proposal that reduces government revenue mainly by cutting taxes on corporations and the rich contains no provisions that a Democrat can take to his or her voters and say, “We got what we could out of the deal.” So Democrats will stay united. Republicans — each of whom represents a somewhat different configuration of interests — probably won’t.

Each of those efforts assumed the once-a-year reconciliation process that circumvents the filibuster in the Senate. Trump has urged the Senate to do away with the filibuster altogether, but there are enough traditionalists in the Republican Senate caucus to defeat that effort. For every other piece of legislation, Trump needs 60 votes in the Senate and only has 52 Republicans.

In short, Trump has already reached the limits of brute force in Congress. This is unlikely to change as the 2018 elections get closer, and if Republican majorities shrink (as seems likely, at least in the House), brute force is even less like to succeed in 2019 and beyond. So if Trump wants to get anything through Congress, he needs at least a small amount of Democratic cooperation. How to get it?

Start the time-bombs ticking. In the last couple of months we’ve seen a new tactic from Trump: Rather than propose even a framework of a policy and seek congressional approval, Trump unilaterally sets a clock ticking towards some outcome that hardly anybody wants. Congress is expected to do something to avert the looming disaster, though precisely what Trump wants it to do is usually unclear. This sets up the following possibilities.

  • If Congress does something popular, Trump can claim credit.
  • If Congress does something unpopular, Trump can save the country from it with a veto and/or a clock reset.
  • If Congress does nothing, he can denounce Congress for obstructing the “agenda” that he never actually proposed.

We’ve seen this set-up three times already in a fairly short time-period: DACA, ObamaCare, and Iran.

DACA. It’s not true that no one wants to deport the so-called Dreamers (the name derives from the DREAM Act — Development, Relief, and Education for Alien Minors, which Congress never passed; that’s what motivated Obama’s DACA — Deferred Action for Childhood Arrivals — executive order), but they are the most popular of America’s undocumented immigrants. A poll in September found that 58% of Americans want Dreamers to have a path to citizenship. Another 18% would let them be permanent residents without citizenship. Only 15% want them deported.

In the face of that public opinion, even Republicans say nice things about the Dreamers. Orrin Hatch, for example:

I’ve long advocated for tougher enforcement of our existing immigration laws. But we also need a workable, permanent solution for individuals who entered our country unlawfully as children through no fault of their own and who have built their lives here.

But on September 5, Trump started a clock running.

Under the plan, announced by Attorney General Jeff Sessions, the Trump administration will stop considering new applications for legal status dated after Tuesday, but will allow any DACA recipients with a permit set to expire before March 5, 2018, the opportunity to apply for a two-year renewal if they apply by October 5.

So after March 5, Dreamers will start becoming subject to deportation. And they’ll be easy to find, because the DACA program required them to register with the government.

At first, Trump himself seemed to share the public’s sympathy for the Dreamers, tweeting “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?” His problem seemed to be mainly that DACA was established by executive order rather than by an act of Congress. Democrats briefly thought they had reached a deal with him to fix that. Nancy Pelosi and Chuck Schumer released a joint statement after a meeting with Trump:

We agreed to enshrine the protections of DACA into law quickly, and to work out a package of border security, excluding the wall, that’s acceptable to both sides.

At the time, Trump seemed to endorse the Democrats’ version:

“DACA now, and the wall very soon,” Trump told reporters on the south lawn of the White House in mid-September. “But the wall will happen.”

But this week he disavowed any such deal, and issued his ransom note of 70 demands. Not only did it include funding for his border wall, but it also had one giant poison pill: It criminalizes millions of immigrants who (under current law) have only committed the civil infraction of overstaying their visas.

Of the 11 million unauthorized aliens in the country, about two million are DREAMers [1] and 4.5 million are visa overstays who entered the country legally but whose visas expired (the rest entered the country without proper papers). Currently, these latter folks are guilty of a civil infraction akin to an unpaid parking ticket. They can be deported for it but can’t be thrown in jail.

Many of them are eligible for a visa renewal or for refugee status, but haven’t been able to navigate our byzantine process. [2]

But Trump’s proposals (according to the Cato Institute)

would create a new misdemeanor offense for overstaying a visa. Immigration fraud is already a crime. This would criminalize the technical violation, regardless of the reason.

If, for example, your application gets lost in the mail, or vanishes into some bureaucrat’s files, you become a criminal. But there’s more:

It would also create new criminal penalties for filing “baseless” asylum applications and increase penalties for those who recross the border after a deportation.

So if you are in danger in your home country, be sure you thoroughly document your situation and bring the paperwork with you when you run for your life. Otherwise you may go to jail in the U.S. for filing a baseless asylum application.

In short, Trump’s price for giving the Dreamers legal status (he still hasn’t said what kind) isn’t just to build a wall, but to criminalize at least twice as many people as he legalizes. “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?” he asks. But he’ll start doing it on March 5 unless his demands are met.

ObamaCare. The Constitution says that a primary duty of the President is to “take Care that the Laws be faithfully executed”. It doesn’t say “unless they were passed under your predecessor and you don’t like them”. But that’s the spin Trump has been putting on the Affordable Care Act since he took office.

The initial sabotage was low-level and seemed like the grousing of teen-agers who complain about going to school as they go to school. For example, HHS took some of the money appropriated to publicize the program and used it to create videos that criticized ObamaCare instead. Somewhat more seriously, the Trump administration has also made it harder to sign up by cutting the open enrollment period.

But this week he made two direct attempts at sabotage: He ordered HHS to expand the role of interstate association healthcare plans, which provides a way to siphon off healthier, younger people into cheaper plans, leaving older, sicker people behind in a more expensive risk pool that is in greater danger of collapsing. And he announced that he will cut off the cost-sharing-reduction payments that help people just above the poverty line cover their deductibles and make co-payments.

It’s important to realize that this is not the main ObamaCare subsidy, the one that helps people pay their premiums. (If people get the impression that all ObamaCare subsidies have been eliminated, that will sabotage sign-ups beyond what the actual situation implies.) Eliminating it will actually not help anybody.

If the payments are stopped, insurers would still be required to give low-income consumers plans with small deductibles and co-payments. But insurers would no longer be able to get financial help for the costs they are bearing.

Some insurance companies would likely decide that it was no longer worth selling health plans on the marketplaces. Others might conclude that they have to raise premiums across-the-board to cover the additional losses.

Insurance regulators predict that premiums nationwide will go up an average of 12% to 15% because of Trump’s decision. But the increase in some areas could be much larger.

Many of the people hurt worst will be Trump voters.

An estimated 4 million people were benefiting from the cost-sharing payments in the 30 states Trump carried, according to an analysis of 2017 enrollment data from the U.S. Centers for Medicare and Medicaid Services. Of the 10 states with the highest percentage of consumers benefiting from cost-sharing, all but one — Massachusetts — went for Trump.

It won’t even save the government money. Increasing premiums increases the primary ObamaCare subsidies, which will cost the government money.The point of all this, then, isn’t to improve anything for anybody. (It’s worth pointing out that Trump still hasn’t put forward any healthcare plan at all. The Republican plans Congress has rejected were all constructed in Congress. So far, there is no reason to believe that Trump has any ideas for improving healthcare.) It’s to fulfill his promise to “let ObamaCare implode” so that Democrats will have to give in to a repeal-and-replace plan that throws millions of people out of the health-insurance system.

In other words: Agree to hurt a bunch of people, or I’ll hurt even more people.

Iran. The people in the Trump administration who are supposed to understand such things tell us that Iran is fulfilling the terms of the 2015 deal that keeps them from pursuing nuclear weapons. But Friday, Trump “decertified” the agreement.

When you first hear that, it sounds like the deal is kaput. But actually decertification just starts another clock running. Presidential certification actually isn’t part of the international agreement, it’s just part of an American law, the Iran Nuclear Agreement Review Act.

The immediate consequence of this is not that sanctions snap back into effect. Rather, it’s that the issue gets kicked back to Congress — giving them a 60-day window to reimpose Iran sanctions suspended by the deal using a special, extremely fast process.

The sanctions are part of the agreement, so if they go back into effect, we are in violation, even though Iran is not. So Congress has a special opportunity (again avoiding the Senate filibuster) to kill the deal.

Trump’s stated reasons for decertifying are that Iran continues to do bad things the deal doesn’t cover, like aiding Hezbollah and propping up the Assad regime in Syria. (Russia is also propping up the Assad regime, but Trump can’t criticize Russia.) Also, they are developing ballistic missiles (which the deal doesn’t cover). So they are violating “the spirit” of the agreement.

Trump wants Congress to do something (it’s not clear exactly what) that will re-open negotiations on the deal, not just with Iran, but with the United Kingdom, Russia, France, China, and Germany, who are also part of the agreement.  None of the other countries have expressed an interest in renegotiating, or in reimposing the sanctions that pushed Iran to make concessions. But

in the event we are not able to reach a solution working with Congress and our allies, then the agreement will be terminated. It is under continuous review, and our participation can be cancelled by me, as President, at any time.

Several administration officials say we want to remain in the deal. Just blowing it up sets Iran back on the path to nuclear weapons and the United States on the path to war. No one benefits. But Trump says he’ll blow it up if his demands aren’t met.

So far, no one is giving in. There’s no indication that Democrats will pay ransom for DACA or ObamaCare, or that Iran and the other signers of the Iran nuclear deal will pay ransom to preserve the agreement. Like any terrorist, Trump will have to shoot some hostages before his enemies start taking his threats seriously. What remains to be seen is what Trump supporters, both in Congress and in the general public, will do once they understand that the hostages include people they care about.


[1] You’ll see a fairly wide range of estimates of the number of Dreamers, with this one on the high end. The number of people who have registered for DACA is usually estimated between 700K and 800K. I’m assuming that two million represents a guess at the number of undocumented immigrants who qualify in the vaguest sense: They came to this country as children and so could apply for DACA. An undocumented family might have any number of reasons not to call attention to itself by registering its DACA-eligible child.

[2] The goal of the sanctuary movement in liberal American churches isn’t to shelter forever people who can’t legally stay in this country, but to prevent the government from deporting people who would be eligible to stay if some neutral court could examine their cases. Such people are given temporary sanctuary so that the bureaucratic process has time to work.

Nationalism Reconsidered

For decades nationalism was a taboo term, but now it’s back. Why are so many people attracted to it, and why aren’t I one of them?


A few weeks after the election, in “Should I Have White Pride?“, I put forward the idea that we now needed to start answering questions we used to write off, and discussing issues we used to think were settled. OK then: Nationalism. What about it?

For decades the concept was in the doghouse, but the Trump administration has put nationalism back into the public conversation. In his 60 Minutes interview earlier this month, Steve Bannon talked glowingly about “Donald Trump’s populist, economic nationalist agenda” and claimed that “Economic nationalism is what this country was built on.”

Trump himself tends not to use the term, but often invokes the concept. “America First” is fundamentally a nationalist slogan. In his speech to the United Nations on Tuesday, he repeatedly invoked “sovereignty” and stated: “the nation-state remains the best vehicle for elevating the human condition.”

Now we are calling for a great reawakening of nations, for the revival of their spirits, their pride, their people, and their patriotism.

This is a big change. Between and after the world wars, books like All Quiet on the Western Front portrayed nationalism as a kind of collective insanity that induced millions of otherwise sensible Frenchmen and Germans to repeatedly try to kill each other. But in his UN speech, Trump draws a different lesson from the wars. He ignores the nationalism embodied in slogans like “Ein Volk, ein Reich, ein Führer!” or enacted by Japanese kamikaze pilots crashing their planes into American ships, and focuses only on the “good” nationalism of the Allies:

In remembering the great victory that led to this body’s founding, we must never forget that those heroes who fought against evil also fought for the nations that they loved. Patriotism led the Poles to die to save Poland, the French to fight for a free France, and the Brits to stand strong for Britain.

For decades, a “national liberation movement” was at best a phase a Third World society — Vietnam, say, or Zimbabwe — might go through while escaping colonialism and finding its place in the world. But the whole point of international institutions like the UN was to help First Worlders rise above such atavistic motivations. Not any more. Trump’s vision of the UN seems less influenced by Star Trek‘s Federation of Planets than by Robert Frost’s often-misquoted maxim that “Good fences make good neighbors.”

Our success depends on a coalition of strong and independent nations that embrace their sovereignty to promote security, prosperity, and peace for themselves and for the world. … Strong, sovereign nations let diverse countries with different values, different cultures, and different dreams not just coexist, but work side by side on the basis of mutual respect.

(That quote invites a question: Can different values, cultures, and dreams respectfully coexist within a nation? Or is that a problem?) In the Trump administration, globalism is the dirty word. The nation-state is an end in itself, not something we should be trying to transcend.

Nationalism and essentialism. Before criticizing nationalism, it’s important to understand the attraction of it. The root idea of nationalism is that nations are, or should be, more than just lines on a map. Ideally, a nation represents a convergence of territory, culture, and government. A variety of factors — typically ethnicity, language, religion, and/or shared history — give a population a common identity as “a people”. That people occupies a territory, and expresses its common will through a government that is sovereign over that territory.

In this vision, being English or French or Japanese means far more than simply living inside the boundaries of England or France or Japan, or satisfying the legal conditions for citizenship. It means sharing the almost mystical essence that unites the English, French, or Japanese people.

At its best, this identity as a people gives a country a unity that makes it governable, and a common purpose that allows it to accomplish great things. We can easily see the lack of such a national essence in the failure of American “nation building” in Iraq and Afghanistan. It is comparatively easy to draw borders on a map, to write a document that defines a constitutional republic within those borders, and to establish a government by holding elections under that constitution. Whether or not that government actually takes hold, though, depends on whether it corresponds to something its citizens can identify with and feel loyal to. Constitutions and elections can be how the popular will expresses itself. If there is no national identity, though, and hence no popular will, elections simply become a way of deciding who will dominate who. Officials will be corrupt, and citizens will show them no loyalty beyond what the police can force out of them.

But nationalism also has a down side: It creates dissonance between the actual citizenry and the ideal citizenry. Some Frenchmen are just “more French” than others. Some U.S. citizens are real Americans, while others are not quite so real. Even if their ancestors had lived in Germany since before there was a Germany, even if they spoke perfect German and loyally paid their taxes, and even if they had fought for the Kaiser in World War I, Jews could never be part of the German Volk.

Nationalism also provokes a disruptive desire to get the boundaries right. Hitler’s initial expansions — Austria, the Sudeten region of Czechoslovakia, and the Danzig corridor of Poland — were justified by his ambition to unite the German Volk under a single Reich. Similarly today, Putin’s annexation of Crimea and the pressure he is putting on the eastern provinces of Ukraine are part of a vision that unites all the ethnic Russians in the nation of Russia.

And if boundaries won’t move, then people must. Ethnic cleansing and genocide are the ultimate expressions of nationalism. If you don’t fit the national identity and you aren’t willing to accept slavery or some other subordinate status, then you have to go.

Finally, national identity often comes packaged with a national mythology that justifies dominating others. It’s no coincidence that nationalists are also the Americans most likely to believe in American exceptionalism.

When nationalism and democracy were allies. One of the key ideas underlying President Wilson’s 14 Points for establishing peace in Europe after World War I was “self determination“. In the 19th century, the world had been dominated by big cosmopolitan empires like Austria-Hungary or the Ottomans. The Czars ruled far more than just the Russians, and the English governed both nearby Ireland and distant India. Even France, if you looked closely, was a polyglot of Normans, Bretons, Provencals, Burgundians, and many others who were only beginning to identify as a nation and speak a common language (for more than just government and trade).

In an era where democracy was only beginning to catch on in Great Britain, the United States, and a handful of other places, cosmopolitan empires seemed normal. Government wasn’t supposed to express the popular will, it was an organizing service offered by a central authority. If the ruling House established trade, promoted the arts, and kept the peace — what more did you want?

But when World War I left Austria-Hungary and the Ottoman Empire in tatters, the victorious nations had to decide what to do with the pieces. Their internal squabbles had been the sparks the lit the war to begin with — the assassination of Archduke Ferdinand and all that — so the victors weren’t inclined to just prop up new Austro-Hungarian and Ottoman emperors. So what, then?

Wilson’s solution was to identify natural ethnic boundaries and create new nations to match them.

National aspirations must be respected; people may now be dominated and governed only by their own consent. “Self determination” is not a mere phrase; it is an imperative principle of action.

Having been established around the peoples who lived there, Wilson expected the new nations to be fertile ground for government by the people. In this sense, nationalism and democracy would go hand in hand.

From self-determination to ethnic cleansing. In fact Wilson’s vision was not implemented all that well; the borders established by the Treaty of Versailles involved as much national score-settling as self-determination. But Wilson got perhaps more credit than he deserved for his idealism. (In retrospect, his support for nationalism abroad paralleled his racism at home. Wilson re-segregated government offices, and screened Birth of a Nation in the White House.)

On the ground, ethnic boundaries were never quite so natural as he had imagined, and many Romanians, Hungarians, Bulgarians, and others wound up on the wrong side of the borders defining the nations of their peoples. Many moved, while others stayed and were now oppressed by the local majority rather than by a distant emperor. Jews, Roma, and other dispersed peoples were often worse off than they had been in a cosmopolitan empire.

As the remaining empires dissolved in the subsequent decades, national self-determination was often associated with either ethnic cleansing or a semi-voluntary mass migration motivated by fear of the new majority. The British Raj, for example, split into Hindu India and Muslim Pakistan. But there had never been a clear territorial separation between the two religions, so millions moved or were moved, with much violence on both sides.

In the long run, does democracy require nationalism? It’s worth considering why the Versailles negotiators couldn’t have just declared a unified Republic of Austria-Hungary; written a modern constitution that defended the rights of all the Serbians, Jews, Maygars, and other ethnic groups inside it; and held elections for a new Parliament. For that matter, why couldn’t we do the same today with Earth?

The answer is that the inherent political discord of a democratic republic is only stable if it is an island floating on a broader sea of public consensus. Constitutional rights only matter if the public actually believes in them, so that whoever gains power will feel constrained to defend everybody’s rights, and not just the rights of a particular party or ethnic group. As the U.S. Senate has been finding out over the last decade or so, unwritten but broadly shared standards of fair play are as important — and perhaps more important — than constitutional guarantees.

In many countries, a disputed presidential election like the U.S. had in 2000 would have led to civil war. Instead, the Supreme Court ruled, Gore conceded, and subsequent elections were held on schedule in 2004 and 2008. When Bush’s chosen successor lost the 2008 election, we had a peaceful transfer of power.

That happened because all sides had confidence in American standards of fair play. If Gore’s supporters in 2000 (or the outgoing Bushies in 2008) had believed that they were all about to be rounded up and shot, civil war might have seemed like a more attractive option.

Confidence in the underlying consensus limits the stakes of an election, and allows the losers to retreat and regroup rather than panic. Because of that consensus, we argue vociferously over things like tax rates and health insurance, but we don’t consider killing off all the old people. Anti-gay bakers may or may not have to make cakes for same-sex weddings, but they won’t be sent off to re-education camps. Larger or smaller numbers of undocumented Hispanics may be deported, but Hispanic citizens will not be ethnically cleansed. We may or may not create hurdles to voting that many people will lack the will to jump, but we will not revoke the voting rights of entire races or religions. In some future progressive administration, billionaires may have a harder time multiplying their wealth and passing it on to their descendants, but they won’t become enemies of the people whose estates are confiscated and whose children are impoverished.

In short, we can vote about the things that divide us, and live with the outcome, because we share a broad consensus on the graver issues that large numbers of people would be willing to kill or die for. (When the consensus ruptured on slavery, we did have a civil war.) A country that doesn’t have such a consensus won’t be a stable democracy, no matter what its constitution says.

A nationalist believes that such a consensus can only come from a shared identity as a people, which is based on shared culture, language, religion, and history. Anything that dilutes that identity — say, by bringing in a bunch of immigrants who don’t fit the national identity — undermines the national consensus that democracy depends on.

National identity in America. Trump/Bannon American nationalism has a nuanced relationship with racism. Both will deny that they are racist, and in one sense they are justified. Bannon put it like this:

We look after our own. We look after our citizen, we look after our manufacturing base, and guess what? This country’s gonna be greater, more united, more powerful than it’s ever been. And it’s not– this is not astrophysics. OK? And by the way, that’s every nationality, every race, every religion, every sexual preference. As long as you’re a citizen of our country. As long as you’re an American citizen, you’re part of this populist, economic nationalist movement

But last summer he told Mother Jones that he had made Breitbart “the platform for the alt-Right“, which clearly is racist. Both Bannon and Trump appeal to the racist leanings of their base voters, sometimes pretty explicitly.

Here’s how I interpret the nuance: The national identity Bannon/Trump are trying to defend against dilution is white, Christian, straight, English-speaking, and perhaps a few other things. That’s why Bannon can correct Charlie Rose’s statement about “the Trump base” with “the American people”. To the extent that Americans are “a people”, Bannon sees them as the Trump white Christian base.

But that’s a description of an ideal. Few Americans fit the ideal perfectly; most of us are only “real Americans” up to a point. So Trumpists don’t have to be against any individual Hispanics or Muslims purely because of their race or religion. It’s only when large numbers of people differ significantly from the ideal that dilution becomes an issue. If America stopped being a white country or stopped being a Christian country, that would be a problem for them.

So whether they’re bigots depends on what you mean: They don’t necessarily hate individuals based on their race or religion. But all races and religions are not created equal, at least not if you want to fit in with the American people.

Why I’m not a nationalist. If you look back at American history, our national identity has always been an issue, and in retrospect it is obvious that the people who wanted to defend it have always defined it too narrowly. The Founding generation seriously debated whether Catholics could be good Americans, and most doubted that they could. The flood of German immigrants in the early 1800s (my ancestors) threatened the nation’s English heritage. The subsequent waves of Irish, Italian, Jewish, Polish, and Slavic immigrants were also controversial in their day. How could we possibly assimilate so many of them all at once?

One reason the South hung onto slavery so desperately was that Southern whites didn’t believe that whites and blacks could share a society, certainly not as citizens with equal rights. If blacks became the majority (as they already were in South Carolina and Mississippi) and had equal rights, then they’d define a black society, and whites would be the slaves. Or else there would be a race war, and one would wipe out the other. That’s what Jefferson was talking about when he described slavery as having “a wolf by the ear. We can neither hold him nor safely let him go.” The choice was slavery or genocidal race war, because the national identity had to be either white or black.

In retrospect, the national identity has changed a lot over the years, and the broad consensus underlying our democracy has shifted from one era to the next. Even using the most generous estimates, English-Americans are only 1 out of every 4, and may be less than 1 out of 10. (John Adams, I’m sure, would be horrified.) Whites are less than half of the population of California, and yet democratic institutions continue to function there. White protestants are less than half of the population nationwide, but blacks, Catholics, Jews, and even atheists and agnostics seem to have caught on to being Americans.

These changes can be disturbing if you are part of a declining majority. (I still get edgy when I am surrounded on public transit by people speaking a language I don’t understand.) But it’s important not to confuse personal discomfort with a danger to the Republic.

In short, I see a wide gap between a white/Christian/English-speaking identity and the national consensus that keeps democracy functioning. The idea of America has always been more flexible and resilient than the Americans of any given era have imagined. People come here because they find the idea of America attractive, and not because they want to tear it down. But they have also always tried to hang onto part of the heritage of the old country, wherever it was.

I have much more faith in the American people than I have in our ability to define what makes us a people, or to determine what kind of people we should be in the future. We will evolve, and in another 250 years we’ll be as unrecognizable as today’s America would be to a young Ben Franklin. That is as it should be.

The Message in Joe Arpaio’s Pardon

[Disclosure: I was part of a protest outside of Tent City in 2012. That’s the trip I wrote about in “I Was Undocumented in Arizona“. I had misplaced my driver’s license before leaving home. But being white, I had no problems.]

President Trump’s pardon of Joe Arpaio got a lot of attention this weekend, but no one seemed to be pulling together everything we know.

Who is Arpaio and why do people have such strong feelings about him? For background on Arpaio’s 24-year reign of terror against Arizona’s Latinos, I recommend Rolling Stone‘s “The Long, Lawless Ride of Sheriff Joe Arpaio” from 2012. Arpaio is best known for his Tent City

the infamous jail he set up 20 years ago, in which some 2,000 inmates live under canvas tarps in the desert, forced to wear pink underwear beneath their black-and-white-striped uniforms while cracking rocks in the stifling heat. … From the start, the jail was notorious for its minimalist living conditions, which Arpaio says have saved Maricopa County millions of dollars in building and operational costs. Arpaio fed prisoners two meals a day (valued at 30 cents each), banned cigarettes and coffee, and boasted that temperatures in the summer can hit 141 degrees.

Any savings, though, have been more than eaten up by legal settlements paid to abused prisoners or their heirs. Way back in 2007, Phoenix New Times calculated:

[T]he cost to insure for and defend against Arpaio lawsuits totals $41.4 million.

Francisco Chairez gives a first-person account of serving a year in Arpaio’s jails on a drunk-driving charge. Reading it makes sense of what PNT found regarding the death rate in Arpaio’s jails.

[P]eople hang themselves in the sheriff’s jail at a rate that dwarfs other county lockups. And many of the deaths are classified as having occurred in the county hospital or in a cell without further explanation. People die and no one asks how; no one asks why.

Asking Arpaio’s office for the number of dead prisoners proved useless, but the coroner documented 157 deaths: 39 by hanging. 34 prisoners were found dead in the jail with no cause of death given, and 39 other unexplained deaths came after prisoners were transferred to the county hospital.

That’s 73 deaths — nearly half of all deaths — that county authorities list as “who knows?”

A 2011 report from the Justice Department found “a chronic culture of disregard for basic legal and constitutional obligations.”

Based upon our extensive investigation, we find reasonable cause to believe that [Maricopa County Sheriff’s Office] … engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices.

MCSO also

routinely punishes Latino [limited English proficient] inmates for failing to understand commands given in English and denies them critical services provided to the other inmates, all in violation of Title VI and its implementing regulations.

… MCSO has implemented practices that treat Latinos as if they are all undocumented, regardless of whether a legitimate factual basis exists to suspect that a person is undocumented.

DoJ brought in “a leading expert on measuring racial profiling through statistical analysis” who

concluded that this case involves the most egregious racial profiling in the United States that he has ever personally seen in the course of his work, observed in litigation, or reviewed in professional literature.

DoJ also found “a pattern of retaliatory actions intended to silence MCSO’s critics”.

MCSO command staff and deputies have arrested individuals without cause, filed meritless complaints against the political adversaries of Sheriff Arpaio, and initiated unfounded civil lawsuits and investigations against individuals critical of MCSO policies and practices.

For example, the two founders of PNT received a $3.75 million settlement from the County to compensate for Arpaio arresting them in the middle of the night on bogus charges.

The opposite of law and order. The manpower and resources for Arpaio’s anti-Latino crusade seem to have been drawn away from investigations of crimes with actual victims, making a joke out of Trump’s claim that “He kept Arizona safe!” The DoJ report says:

The Sheriff’s office has acknowledged that 432 cases of sexual assault and child molestation were not properly investigated over a three-year period ending in 2007. These cases only came to light after a review by the El Mirage Police Department of a period in which MCSO was under contract to provide policing services to that community. It appears that many of the victims may have been Latino.

Phoenix’ local CBS station highlighted the case of Sabrina Morrison, who at age 13 was raped by her uncle. MCSO told her mother that there was no evidence of a rape. “So I thought she was lying the whole time.”

What the family did not know was the sheriff’s detective sent the rape kit to the state crime lab. Two weeks later, the crime lab sent a notice to the MCSO Special Victim’s Unit confirming the sample contained semen, and asking for a blood sample from the suspect, Patrick Morrison.

Instead of making an arrest, a detective filed the crime lab note and closed the case for four years. It was five years before they arrested Patrick Morrison.

Meanwhile, Patrick continued raping Sabrina, who became pregnant, had an abortion, and was sent to live in a group home for “acting out”. An internal MCSO memo “blames a high case load, says the special victims unit had gone from five detectives to just three, and the detectives left were often called off their cases to investigate special assignments.” The County had to pay $3.5 million on that one, though it’s hard to imagine how any amount of money could truly compensate.

As outrageous as all that seems, county sheriff is an elected position, so as long as Arpaio had the support of the voters of Maricopa County — and vast quantities of outside money to convince those voters — there wasn’t much anybody else could do. Arpaio finally was defeated in 2016.

What he was convicted of. Crimes by law enforcement officers are notoriously hard to prove beyond a reasonable doubt, particularly when those crimes happen inside jails, where the perpetrators themselves control the crime scene. That’s why most of the cases against Arpaio have been tried in civil court, where the standard of proof is lower, but judgments are limited to monetary damages.

The crime Arpaio was pardoned for is criminal contempt of court, which carries a maximum sentence of six months in prison. Convicting him of contempt was somewhat like nailing Al Capone for tax evasion: It was far from the worst thing he did, but at least the evidence was clear. The satisfaction for Arpaio’s victims was mostly symbolic. Finally he had been recognized as a criminal.

That case has its origins in a 2007 civil suit about racial profiling. (Dan Magos, who joined the suit later and testified against Arpaio, describes what it’s like to be stopped and searched without any cause other than your ethnicity.) Vox tells how it became a criminal matter:

In 2011 … the judge in the racial profiling lawsuit issued an injunction preventing Arpaio from apprehending or detaining anyone purely on the basis of being a suspected unauthorized immigrant or turning such people over to federal agents.

In 2013, Arpaio officially lost the civil suit. But by that point, it had become clear that his department hadn’t actually been complying with Judge Murray Snow’s 2011 injunction. They’d continued to engage in immigration “sweeps,” turn people over to ICE (or, when ICE stopped accepting detainees from Arpaio’s deputies, Border Patrol), and hold suspected immigrants in jail after they’d otherwise be released for federal agents to pick them up.

After a series of hearings about the Maricopa Sheriff’s Office’s failure to comply with the 2011 order, Judge Snow cited Arpaio and a handful of his subordinates for civil contempt of court in 2015. Then, in 2016, he asked the US Attorney’s Office to charge Arpaio and three others with criminal contempt — which someone can only be convicted of if it’s shown they were willfully refusing to obey the court order, not just failing to make sure it was obeyed.

What job was he doing? During his recent rally in Phoenix, Trump asked the crowd “Was Sheriff Joe convicted for doing his job?” which strongly yelled its agreement that he was. Former Solicitor General Walter Dellinger tweeted:

Of bad pardons, this is the worst because it is an assault on law itself. Says Joe’s “job” was violating a federal court order.

And The Week ‘s Scott Lemieux commented:

To allow [Arpaio] to go unpunished is to celebrate the arbitrary use of state violence and to show contempt for the legal restraints public officials are supposed to be constrained by.

The best case for the just-doing-his-job point was made by Arizona Republic columnist Robert Robb. The court order didn’t just tell Arpaio to stop racial profiling — which would have been hard to enforce, since individual examples are easy to explain away. Instead, the judge ordered Arpaio to stay clear of the situations that led to abuses.

He ordered Arpaio to get out of the immigration enforcement business altogether. Even with a legal stop, Arpaio was to either charge people with a state crime or let them go. No detaining them or turning them over to federal officials for immigration violations. … Arpaio wasn’t criminally convicted for illegally using race in traffic stops. He was criminally convicted for turning illegal immigrants over to federal officials. And here things get messy.

To me, though, this is no more messy than getting convicted of violating a restraining order in a domestic violence case. Robb’s complaint (or Arpaio’s behalf) is like the guy who says, “They didn’t catch me hitting her again, they just arrested me for walking behind her on the street.”

Even Robb admits:

even if Snow’s order was an overreach, Arpaio’s duty was to obey it while appealing it.

“Constitutional” sheriffs. However, there’s another point of view at issue: Robb is assuming that federal judges have authority over county sheriffs. Not everybody, and not all sheriffs, agree.

One radical right-wing movement that gets little publicity has to do with so-called “constitutional sheriffs“. The idea is that the county sheriff is the only elected law enforcement officer, and so his authority is primary within his jurisdiction, superseding the authority of state and federal officials. So if agents of the FBI or IRS or BLM show up in your town, the county sheriff has the authority to tell them to go away. (So far as I know, no court recognizes this authority.)

If you have run into these folks before, it was probably during the standoff with the Bundy militia at Malheur National Forest last year. The constitutional sheriffs and the Bundies draw from the same well of crazy.

Like Nazis and Klansmen, constitutional sheriffs (and the people who support them) are part of a small radical fringe that Trump panders to and refuses to offend. Often he dog-whistles by using phrases that mean something special to them. The idea that Arpaio was “doing his job” rather than following federal court orders is right up their alley.

Sending a message. We have to wonder why the Arpaio pardon happened when it did, because the case was not in any sense ripe. Arpaio still had options to appeal his conviction. If the Supreme Court agreed with Robert Robb, that the order Arpaio disobeyed was an over-reach by the judge, they might have thrown the whole thing out. Even if the conviction stood, he hadn’t been sentenced yet, and might not have gotten jail time at all. (Since he isn’t sheriff any more, courts might not be motivated to teach him a lesson.)

So Trump might have gotten the result he wanted just by watching and doing nothing. If not, he could have intervened down the road, before Arpaio began serving his sentence. So why now?

One obvious implication is that the pardon is meant to send a message: to Trump’s base, obviously, but also to other law enforcement officers, to the courts, and to Trump associates who might be tempted to cut a deal with the Mueller investigation.

Law enforcement people have to see this as part of a package with other messages: Trump’s speech urging police to be “rough” with Hispanic gang suspects, his even-handed approach to Nazis and the people who protest against Nazis, and his unwillingness to speak out against the bombing of a Minneapolis mosque.  Put together, those all say: Violence is OK, as long as people Trump likes are doing it to people Trump doesn’t like. In particular, if you are in law enforcement and feel like violating the civil rights of non-whites or non-Christians, don’t worry; the President has your back.

Judges have to see the pardon as an attack on the independence of the judiciary. Contempt of court is the only real enforcement mechanism behind judicial injunctions. If a pardon is an option for local officials who follow the Trump agenda in defiance of court orders, that shakes up the balance of power between the judicial and executive branches of government.

Finally, it seems more and more apparent that the Mueller investigation is closing in on Michael Flynn, Paul Manafort, and maybe some lesser figures associated with them. If this were an investigation into a Mafia family or a corrupt corporation, investigators would be expecting to flip one of these underlings against the guy at the top. In this case, however, the guy at the top wields the pardon power. Trump just reminded everybody that he isn’t afraid to take heat for using it.

Returning to the Well of White Resentment

As Republicans in Congress back away from Trump, he throws red meat to his base.


When things go wrong, you go back to basics. As the down-home saying has it: “I’ll dance with who brung me.”

What “brung” Donald Trump to the White House was not the support of establishment Republicans like Paul Ryan or Mitch McConnell, but the white resentment that had built up during the eight years of the Obama administration. And as Congressional Republicans start to back away from him, Trump is responding by going back to that well.

Sociologist Arlie Russell Hochschild started studying the Trump base years before anybody knew they’d be the Trump base. In her book Strangers in Their Own Land,  she summed up their “deep story” — the narrative of how life feels to them — like this:

You are patiently standing in the middle of a long line stretching toward the horizon, where the American Dream awaits. But as you wait, you see people cutting in line ahead of you. Many of these line-cutters are black — beneficiaries of affirmative action or welfare. Some are career-driven women pushing into jobs they never had before. Then you see immigrants, Mexicans, Somalis, the Syrian refugees yet to come. As you wait in this unmoving line, you’re being asked to feel sorry for them all. You have a good heart. But who is deciding who you should feel compassion for? Then you see President Barack Hussein Obama waving the line-cutters forward. He’s on their side. In fact, isn’t he a line-cutter too? How did this fatherless black guy pay for Harvard? As you wait your turn, Obama is using the money in your pocket to help the line-cutters. He and his liberal backers have removed the shame from taking. The government has become an instrument for redistributing your money to the undeserving. It’s not your government anymore; it’s theirs.

It’s tricky to argue with this narrative, because they’re not wrong about being stuck in an unmoving line: Middle-class wages have been stagnating for decades. The jobs you can get without a college education are going away, except for the insecure ones that don’t pay much. And college is increasingly a highly leveraged gamble: If you don’t finish your degree, or just guess wrong about where the future jobs will be, you may end up so deep in debt that you’re worse off than if you hadn’t tried.

What’s wrong with that deep story is in who it blames: Immigrants, blacks, and Muslims, not the CEOs who send jobs to Indonesia, or the tax-cutting politicians who also cut money for education and training, or the lax anti-trust enforcement that keeps monopolies from competing for workers and funnels so much of America’s economic growth to corporations that occupy a few key choke points. The story, in a nutshell is: Get angry about the real problems in your life, and then let yourself be manipulated into blaming people who are even worse off than you.

Writing in The Washington Post on Friday, Christine Emba summarized how Trump uses this deep story.

First, Trump taps into a mainstream concern, one tied to how America’s economic system is changing and how some individuals are left at the margin: Employment? Immigration? College? Take your pick. Then, instead of addressing the issue in a way that embraces both its complexity and well-established research, [administration] officials opt for simplistic talking points known to inflame an already agitated base: Immigrants are sneaking into the country and stealing your jobs! Minorities are pushing you out of college!

Misdirecting blame onto well-chosen scapegoats is the heart of the Trump technique. Two weeks ago I described how environmentalists have been scapegoated for the decline in coal-mining jobs, taking the real causes — automation and fracking — out of the conversation. This week, in the wake of TrumpCare’s failure, a brewing rebellion in Congress, and the increasing likelihood that the special counsel’s investigation into the Trump campaign’s collusion with Russia will actually get somewhere, those dastardly immigrants and minorities were front-and-center again.

Why can’t working-class kids get into Harvard? Tuesday, the NYT’s Charlie Savage reported that the Justice Department’s Civil Rights Division is looking for lawyers interested in “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” This appears to presage an attack on affirmative action programs which disadvantage white and sometimes Asians applicants.

Such cases have been litigated for decades, with the outcome so far that affirmative action programs are OK if they are narrowly tailored to serve the goal of creating a diverse student body, which can improve the university’s educational experience for all its students. (Two examples: A history class’ discussion of slavery is going to be more real if some participants are black. And an all-white management program might be poor preparation for actual management jobs.)

Black comedian Chuck Nice lampooned the affirmative-action-is-keeping-my-kid-out-of-Harvard view Friday on MSNBC’s “The Beat”:

I am so happy this has finally come to the fore the way it should be, because whenever I walk onto an Ivy League campus, I always say to myself “Where are the white people?”

Emba’s article was more analytic:

Affirmative action is a consistent hobbyhorse on the right because it combines real anxieties with compelling falsehoods.

The real concern is how hard it is for children of the white working class to either get a top-flight education or succeed without one. Nobody’s laughing about that. But the compelling falsehood is to scapegoat blacks, who have an even smaller chance of getting ahead. The truly blameworthy people who get taken off the hook are the rich, and particularly the old-money families whose children have been going to Yale for generations. They’re the ones who are sucking up all the opportunity.

At Harvard, Yale, Princeton, Georgetown and Stanford universities, the acceptance rate for legacy applicants is between two and three times higher than the general admissions rate.

If you want to blame somebody for why your children didn’t get into their first-choice schools, consider Jared Kushner. Daniel Golden had already researched Jared’s case for his 2006 book, The Price of Admission. In November, when Trump’s win made Jared (and Golden’s book) newsworthy, Golden summarized his findings:

My book exposed a grubby secret of American higher education: that the rich buy their under-achieving children’s way into elite universities with massive, tax-deductible donations. It reported that New Jersey real estate developer Charles Kushner had pledged $2.5 million to Harvard University in 1998, not long before his son Jared was admitted to the prestigious Ivy League school. At the time, Harvard accepted about one of every nine applicants. (Nowadays, it only takes one out of twenty.)

I also quoted administrators at Jared’s high school, who described him as a less than stellar student and expressed dismay at Harvard’s decision.

“There was no way anybody in the administrative office of the school thought he would on the merits get into Harvard,” a former official at The Frisch School in Paramus, New Jersey, told me. “His GPA did not warrant it, his SAT scores did not warrant it. We thought for sure, there was no way this was going to happen. Then, lo and behold, Jared was accepted. It was a little bit disappointing because there were at the time other kids we thought should really get in on the merits, and they did not.”

It’s not that Somali immigrants are cutting in line ahead of your kid. It’s that there’s a different line for the very rich; your kid was never allowed to get into it.

Let’s shut down immigration, especially by people who don’t speak English. Donald Trump literally loves immigrants; that’s where his mom came from, and two of his three wives. His Mom, though, came from Scotland, where they speak something closely resembling English. And while Melania has a distinct Eastern-European accent, she was what Julia Ioffe calls “the right kind of immigrant. She is a beautiful white woman from Europe, and we like those.”

Those grubby brown Spanish-speaking immigrants, though, something has to be done about them. So Wednesday Trump endorsed a plan by Republican Senators Cotton and Perdue to cut legal immigration in half, and introduce a point system that favors English-speaking, youth, wealth, and education. (Homework: Try to figure out whether your own ancestors could have made it into the country under this system. I’m not sure about mine.)

The plan has virtually no chance of becoming law. Since it was introduced in the Senate a few months ago, no new sponsors have signed on. A number of other Republican senators criticized it, and it seems unlikely even to come up for a vote.

So the point of Wednesday’s push by the White House was purely to throw some red meat to the base. It also gave White House adviser Stephen Miller (who you may remember from his chilling quote in February that “the powers of the president to protect our country are very substantial and will not be questioned”) a chance to get in front of the cameras and repeat a number of falsehoods about immigrants and their effect on the economy.

He also got to dog whistle to white nationalists. When CNN’s Jim Acosta challenged how this plan aligns with the inscription on the base of the Statue of Liberty (“Give me your tired, your poor, your huddled masses yearning to breath free … ), Miller waved aside the poem as something that was “added later” and accused Acosta of “cosmopolitan bias”.

The added-later part is true, sort of. Emma Lazarus wrote “The New Colossus” as part of a fund-raising campaign for the statue’s base, and it has been part of the monument for only 114 of its 131 years. The idea that its addition was somehow a usurpation of the statue’s original meaning is popular on the alt-right:

We’re having this “great war of national identity” because our New York-based Jewish elite no longer has the power to control the Narrative. The fake news Lügenpresse has steadily lost its legitimacy. Thanks to the internet, the smartphone and social media, they are losing control over everything from radio to publishing to video. I now have the capability to fire an Alt-Right cruise missile of truth from rural Alabama right back at David Brooks in New York City.

The “Occidental Dissent” blog recognized that Miller was repeating its case and felt suitably validated.

Chances are, you have never heard cosmopolitan used as an insult before, either. But that’s because you travel in the wrong circles. Nationalist movements have often used it to denote fellow citizens they thought might fit in better somewhere else. Stalin used it against Jews. It also traces back to Mussolini and Hitler. American white nationalists know this kind of history, which is what makes the word a good dog whistle.

Both these incidents go with Trump’s endorsement of police violence last week, the transgender ban, and his attempt to revive anti-Hillary-Clinton animus in West Virginia Wednesday. Governing is proving to be difficult, so he is trying to relive the glory days of the campaign. We should expect to see a lot more of it.

Three Misunderstood Things, 7-17-2017

This week: healthcare costs, the “Biblical” view of abortion, and sanctuary cities.


I. Cutting healthcare costs.

What’s misunderstood about it: Liberals and conservatives both talk about cutting costs, but mean different things. Liberals are usually talking about cutting the cost to society as a whole, while conservatives focus on cutting the cost to the federal government. Either side might be talking about cutting the cost to certain individuals.

The right follow-up question: When a proposals claims to “cut healthcare costs”, are those costs going away, or just being passed on to someone else? Or did that money pay for some needed care that someone is now going to do without?

*

Nearly everyone agrees that American healthcare is too expensive. Americans spend far more on healthcare, both per capita and as a percentage of GDP, than any other country in the world. That might be fine if our extra money bought us better health, but in fact the reverse is true: Our life expectancy at birth is similar to much poorer countries like Costa Rica and Cuba, and on average Americans die four years sooner than the Japanese or the Swiss.

So cutting healthcare costs is a sure applause line for a politician. But what does it mean?

An win/win outcome would be to deliver the same or better care more efficiently and effectively: Hospitals make fewer mistakes and produce fewer unnecessary complications. Treatment gets targeted better, so that no one has to suffer through (or pay for) a test or treatment had no chance of helping. Drugs replace surgeries, and diet/exercise regimens replace drugs. Preventive care catches conditions before they become serious (and expensive). Environmental and job-safety and product-safety standards expose people to fewer health-threatening risks.

Admittedly, it’s not always obvious how to get those win/win results. ObamaCare made some small steps in this direction, but we really don’t know yet whether they’re working, and those changes may not survive the ObamaCare repeal process.

So most cost-cutting proposals are not about those win/win solutions. Liberals often try to offer the same treatment for less money by squeezing providers: cutting insurance companies out of the loop via single-payer plans, capping the prices that drug companies or hospitals can charge, or paying doctors less. Those are great ideas unless you’re an insurance company, a drug company, a hospital, a doctor, or a lobbyist for one of those powerful vested interests.

Conservatives often cut costs by getting somebody to do without healthcare they would otherwise want, usually rationing by cost: Everything is available if you can pay, but you might “choose” not to pursue some treatment that would bankrupt your family. Perhaps Americans (especially poor and working-class Americans) really do seek massive amounts of unnecessary treatments, and they would stop if only they had more “skin in the game“, but I haven’t seen that in my own life. What I have seen is my wife taking monstrously expensive drugs to keep her cancer from coming back. If we were poor and had to pay for them ourselves, it would be really tempting to cross our fingers and hope.

And finally, both sides talk about cutting costs by transferring those costs to somebody else. For liberals, “somebody else” is usually the government, or (passing the buck one step further) the taxpayer. For conservatives, it’s the individual — especially if he or she is unhealthy. Capping what the government is willing to put into Medicare or Medicaid, for example, may help the government control its budget deficit, but it doesn’t do anything to lower the need for treatment or the cost of providing it.

Similarly, letting individuals design their own (cheaper) health insurance — letting people opt out of insurance for care they won’t need, like prenatal care for men or geriatric care for young people — may lower some people’s individual expenses, but the total number of pregnancies and old people hasn’t changed. The cost of caring for them hasn’t gone away, it has just shifted to somebody else.

II. Christianity and abortion.

What’s misunderstand about it: The belief that a newly fertilized ovum has the full moral worth of a baby (or an adult) is often described as the “Christian” or even “Biblical” position.

What more people should know: The Bible says nothing about conception, and what it does say about fetuses and souls points in a different direction. The current ensoulment-at-conception dogma didn’t solidify among conservative Protestants until well after Roe v Wade.

*

Religiously, the question of whether abortion is murder comes down to when the fetus acquires a soul. Souls, after all, are the difference between murder and what butchers have done for millenia. (If you believe a chicken has an immortal soul, you really should be a vegetarian.) Anti-abortion arguments often (and usually inaccurately) point to the number of weeks before a fetus has a heartbeat or can feel pain, but such physical traits are just placeholders for a metaphysical trait that can’t be recognized in a secular setting like a legislature or a courtroom: the presence of a soul.

Unfortunately, microscopes and ultrasound machines didn’t exist when the Bible was being written, so scripture never mentions the miraculous moment when a sperm enters an ovum, nor gives a detailed description of fetal development. The observable sequence at the time was: sex, the woman shows signs of pregnancy, the fetus begins to move on its own, and birth. No one knew how to break the process down much finer than that, and apparently God never whispered His superior knowledge into anybody’s ear.

But anti-abortion Christians really, really want Biblical support for their position, so they thrust an enormous amount of interpretation onto a handful of texts that are either vague or really about something else. For example, Jeremiah 1:5, which you will occasionally see on billboards: “Before I formed you in the womb I knew you.” That might be a lyrical way of saying that God had been planning Jeremiah’s mission for a long time, or it might more literally say that Jeremiah’s soul existed before his conception, but it actually doesn’t say anything about precisely when that soul entered the body that was forming in his mother’s womb.

Which is not to say that the Bible is silent about souls entering bodies. There is a text — I believe it’s the only one — that quite explicitly describes a soul entering a body. But it doesn’t say what anti-abortion folks want to believe, so it seldom gets mentioned in abortion arguments. I’m talking about Genesis 2:7, which describes the creation of Adam.

And the Lord God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul.

In other words: God formed Adam’s body completely, and then his soul entered that body with the breath. The obvious implication is that a fetus is soulless until it breathes. The Christian Left blog does a more detailed discussion of how this view aligns with other places where the Bible mentions pregnancy and miscarriage.

From the early Christian era through the Middle Ages, many Christian thinkers identified the soul with motion, and so held that it entered the fetus at the quickening, which was variously identified at anywhere from 40 to 120 days.

The Catholic Church has been against abortion in any form at least since the 1600s, when it began hoping for Catholic families to outpopulate Protestant families. But Protestant opinion varied widely, even among theological conservatives, until after abortion became a unifying conservative political issue in the late 1970s: The theology appears to have followed the politics, rather than leading it. The history of this discussion has been completely written over in the ensuing years. Slacktivist characterizes this process with a line from George Orwell’s 1984: “We have always been at war with Eastasia.”

As for why this corruption of church history and biblical interpretation is necessary, I believe the root issue is female promiscuity. Pregnancy is a great blessing to families that are ready to raise children, but traditionally it has also been the ultimate comeuppance for unmarried women who think they can have sex without consequences. When abortion is freely available, pregnancy becomes a much less effective threat for keeping women in line. That’s what social conservatives are really worried about, and why they don’t see effective birth control as a solution to the abortion problem.

III. Sanctuary cities

What’s misunderstood about them: What they are. In no American city, whether it identifies as a “sanctuary city” or not, do local officials actively prevent federal immigration officials from detaining or deporting undocumented immigrants. The issue is entirely about the extent to which local officials help ICE.

What more people should understand: Federalism. Under the Constitution, state or local government officials can’t block federal agents from enforcing federal laws, but they don’t have to help.

*

The word sanctuary evokes the idea that once you get there, you’re safe. That’s certainly how it worked for Esmeralda in The Hunchback of Notre Dame.

No city in the United States is a sanctuary for undocumented immigrants in that sense. Federal agents of Immigration and Customs Enforcement (ICE) can go anywhere in the country and arrest anyone they believe has broken federal immigration laws. Local officials can’t stop them, any more than they could stop the FBI from arresting terrorists or the Secret Service from arresting counterfeiters. (Legally, churches aren’t sanctuaries either, even though many of them — including the one I belong to (that’s me in the back, under the chandelier) — are supporting a sanctuary movement. So far ICE hasn’t been willing to break down church doors to haul somebody away, but fear of public opinion is all that stops them.)

However, unlike in some other countries, American state and local governments are not divisions or departments of the national government. The system we know as federalism prevents the national government from simply issuing orders to state and local officials. In particular, cooperation between various levels of law enforcement is mostly voluntary. (This is not an entirely liberal or conservative thing; conservatives want local police not to cooperate with federal gun laws.)

Vox has a pretty clear video explaining the situation.

Whenever local police arrest somebody, fingerprints are taken and submitted to the FBI, which then shares them with ICE. If ICE recognizes those fingerprints as belonging to someone they want to deport, they can send the local police a request to hold the person for an additional 48 hours, which gives ICE time to send out its own agents to make an arrest. But local police don’t have to comply.

Depending on where you live, local police might respond on a case-by-case basis, or the local government might establish a policy. The extent to which that policy refuses cooperation is what defines a sanctuary city.

A separate issue is whether the national government can cut off funds to uncooperative cities. (Again, this is a not a strictly liberal/conservative issue. The Affordable Care Act said that states that didn’t expand Medicaid in the way the law described would lose all federal Medicaid money. But the Supreme Court ruled against that kind of strong-arming.) In January, Trump issued an executive order threatening to pull federal funding from sanctuary cities, but, a judge blocked the enforcement of this order, writing:

Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration-enforcement strategy of which the president disapproves.

In May, the Trump administration appeared to back off. Attorney General Sessions issued a definition of sanctuary cities that applied to very few places, and the restricted funds were only law enforcement grants from the Departments of Justice or Homeland Security.

[BTW: If you show a Trump supporter the Vox video, they’ll likely respond with this video from 1791L. However, that video does not actually identify any mistakes in the Vox video.]

The Ban: Ten Days of Drama

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

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

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

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

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

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

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

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

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

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

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

Also Monday night, Samantha Bee weighed in.

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

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

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

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

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

Yonatan Zunger put a dark spin on it:

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

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

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

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

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

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

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

Trump again personalized the conflict, tweeting:

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

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

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

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

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

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

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

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

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

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

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

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

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

The Skittles Analogy

If endangered people are nothing more than tiny candies, trying to save them just seems stupid.


It’s been a while since I’ve talked about framing. In a nutshell, the idea is that people think in metaphors, so if you can influence the metaphor people use to think about some situation, you can shape their thinking about it, possibly without them even realizing it. For example, someone who thinks in terms of a war on drugs will come up with different proposals than someone who is thinking about addiction as an illness. So if you suggest one metaphor or the other with the phrasing of your question, you can change the odds on getting the answer you want.

Like any other communication tactic, framing can be used for good or ill. If you’re teaching, a good metaphor can stick in students’ heads better than a long explanation. And if a metaphor is apt, it can make obvious some connections that might otherwise be confusing. (One of my favorites when I was teaching math was to encourage students to think of mathematics as a language and equations as sentences in that language. Then it becomes obvious that first step in solving any word problem is to translate the paragraph from sentences-in-English to sentences-in-mathematics.)

One uncontroversial metaphor that just about everyone uses (usually without thinking about it) is to talk about life as a journey: We come to forks in the road, the path can be rocky or smooth, two people have a parting of the ways, and so on. We all do this because (1) we’re used to it, and (2) it’s convenient. It’s actually kind of difficult to talk about long-term life issues without using a journey metaphor somehow.

But metaphors also tilt our thinking. The life-is-a-journey metaphor, for example, tilts us towards belief in an afterlife, because journeys have destinations.

Using the wrong metaphor can make your thinking absurd, even if all the steps you take are logical within the frame. A lot of jokes are based on absurdities created by mis-framing some situation. (A comedian was in line at the supermarket behind somebody who was buying a single roll of toilet paper. “What?” he asked. “Are you trying to quit?” The question would make perfect sense if rolls of toilet paper were like packs of cigarettes.)

Metaphors become sinister when people create them in order to encourage and take advantage of these sorts of mistakes. A sinister metaphor can sneak in assumptions that would be either obviously false or too ugly to defend if they had to be explained explicitly.

And that brings us to Skittles.

Monday, Donald Trump Jr. tweeted this image with the comment:

This image says it all. Let’s end the politically correct agenda that doesn’t put America first.

If you stay within the frame, the answer is obvious: Of course you wouldn’t eat a Skittle if there were any chance of getting a poisonous one.

But what assumptions has the Skittles metaphor tried to sneak past you? Implicitly, it says that the refugees themselves are of no consequence: Skittles are inanimate objects that have only momentary significance. The implication is that you might get a brief feeling of sweetness from the thought of rescuing some Syrian from ISIS, but nothing more.

If a few of the refugees become terrorists, though, that’s a huge deal. Because now we’re talking about our lives, not their lives. And because we are Americans, our lives are very, very much more important than theirs. Vox sums up:

The only agenda that will “put America first,” according to Trump, is one that assumes even a tiny risk to Americans outweighs every other consideration. It’s a policy that assumes Americans’ lives are infinitely precious and that Syrians might as well be Skittles, abstract pieces in a calculation of risk.

It’s worth considering how badly this frame clashes with Americans’ self-image as a heroic people. In all our wars (at least since we were “keeping the world safe for democracy” in World War I), we’ve recruited with the idea that our soldiers and sailors risk their lives to save others. The young men and women who have felt that heroic impulse — were they just stupid?

Also, consider the phrase “Syrian refugee problem”. Again, they’re not people, they’re a problem. And this is where you should start noticing that you’ve seen this frame before. Chris Hayes gives you a big hint.

swap in “Jews” for everything Trump and Co says about refugees, Muslims and immigrants it’s immediately clear what they’re doing.

That’s the model for this kind of propaganda: Germany didn’t have Jewish citizens or residents, it had a “Jewish problem“. So the Nazis weren’t abusing people, they were trying to solve a national problem. (No wonder they eventually they came up with a final solution.) They had a poisonous food metaphor too, but it wasn’t candies, it was mushrooms. Nazi writer Julius Streicher (who would be hanged at Nuremberg in 1946) published it in 1938 in a children’s book called The Toadstool.

Just as a single poisonous mushrooms can kill a whole family, so a solitary Jew can destroy a whole village, a whole city, even an entire Volk.

It’s not just liberals who see the connection, American neo-Nazis see it too, and have seen it all the other times when Trump Jr. has retweeted white supremacist and alt-right memes.

When you understand what has been left out of a metaphor or hidden by it, sometimes you can put it back in. That’s what Eli Bosnick did in a Facebook post that (last time I checked) had been shared 47,000 times. He brought back the point of taking in refugees: Quite likely, you are saving their lives. If every Skittle you eat saves a life, then the calculation changes for everybody with even the slightest amount of heroism in their souls.

I would GORGE myself on skittles. I would eat every single fucking skittle I could find. I would STUFF myself with skittles. And when I found the poison skittle and died I would make sure to leave behind a legacy of children and of friends who also ate skittle after skittle until there were no skittles to be eaten. And each person who found the poison skittle we would weep for. We would weep for their loss, for their sacrifice, and for the fact that they did not let themselves succumb to fear but made the world a better place by eating skittles.

That’s what heroic people do. I don’t know if I have that much heroism in me, to gorge with the knowledge that it would probably kill me, but be worth it in the larger scheme of things. Even so, though, I also don’t think I could just pass the bowl to the next person and say “No thanks.” I may not feel as heroic as Bosnick, but I also don’t think I have it in me to be that selfish.

Trump Jr. does, though. And when he looks at the rest of us, those who would eat at least two or three Skittles before passing the bowl along, he thinks we’re being stupid. What kind of idiot, after all, takes even a tiny risk to help others?