by Michael Dorf
"My fellow Americans. It's so so great that the Electoral College has done its duty by electing me following my historic, tremendous victory in November. By the way, I totally could have easily won the popular vote by a landslide if it would have made any sense for me to campaign in California or my home state of New York, while Hillary would still have been wasting her time in the wrong states. And anyway a lot of people, it could be most people actually, are saying I really did win the popular vote, so thank you. Thank you.
"Now I want to address the concerns some sore losers have raised about alleged attempts by Russia or maybe China or some guy sitting in bed who weighs 400 pounds to influence the election by releasing John Podesta's risotto recipe.
"First of all, so what? Lots of stuff got released during the campaign. Some of it was supposed to be super-damaging to my campaign, but the American people saw it for what it was, just locker room talk and lies from the crooked media. One of Hillary Clinton's loudest supporters called the Wikileaks stuff that Russia supposedly got from Podesta's email--really, how dumb is that guy that he fell for a spearphishing scam?--but this other guy called it a nothingburger. I mean, it's a nothingburger, so what's the big deal?
"Now they're saying that I'm a Russian puppet, which is ridiculous. Actually a lot of people are saying the opposite. It's only a few people who are saying this puppet thing, like Saturday Night Live which is totally not funny, I mean nothing against Alec Baldwin, but seriously he isn't even the second most talented Baldwin brother. I kind of feel sorry for him.
"Okay, they want to investigate. Okay, so look, it's a tremendous waste of time and money, but sure. Knock yourself out. Hold hearings. Bring in the CIA, the FBI, the EPA, whatever. Talk to my staff. If you find that anybody who worked for me was a Russian agent or a Chinese agent or a 400-pound-guy agent, I want to know, because that would certainly be news to me. Try them for treason. Hang them from the highest flagpole.
"I don't know anything at all about who hacked, why they hacked, whatever. I don't know Putin. What I've said, 100 percent right, by the way, is that Putin's a strong leader and we have common interests. We should be fighting ISIS together in Syria and other terrorist countries. Do I agree with everything Putin says or does? No. But there are a lot of nasty dudes in the world. Not saying Putin's a nasty dude, not at all, but guys like Assad, just like Saddam was, which by the way I was totally against the Iraq war, the Howard Stern thing was just an off the cuff quick answer, not what I said over and over to Sean Hannity, you can even ask him--and we can't be the world's policeman, so if some nasty dude is good at killing terrorists, then we should work with them.
"So sure, okay fine. Have the investigation. If it turns out the Russians or the Chinese or maybe the Soros Foundation was trying to interfere with our elections, we deal with it. I'll tell you this. When I'm president, they'll respect us. Not that I want to say anything bad about Barack Obama, who is a terrifically nice guy, although I'm totally going to do more for African Americans than he or any Democrat ever did. The blacks, they love me, which is part of why I won such a historic victory. But I don't know maybe sometimes Obama doesn't have the smartest or the toughest people working for him, which is why he is so weak and that's why Putin or the Chinese or ISIS take advantage. But we can get along with everybody who wants to get along with us and it will be a beautiful thing because number one, they will want to get along with us because they'll respect me, and B, I can make a deal. It's what I do. I make the best deals because I have the best people who work for me, not like these guys they have now. You'll see, okay?
"Yeah, have your investigation. Let me know what you find. Maybe you'll find that the Russians or the Chinese or maybe Mexico tried to influence the election. Luckily we know they failed. But still, yeah, let's find out because you know what? I'm going to win an even bigger even historicker landslide in 2020, and I want to make sure no foreign country or 400 pound hacker interferes with that.
"Now that I'm going to be president, let me just add a couple of words that very soon won't be illegal to say anymore. Merry Christmas. Merry Christmas. And to all the terrific tremendously great Hispanics who voted for me despite the crooked media saying I was against them just because I want to build a wall to keep out illegals, not all Mexicans, just illegals, I say Feliz Navidad."
---------
Donald Trump could, but almost certainly won't, give a speech very much like the foregoing. Why not? I'll briefly consider four possibilities.
1) Trump is actually a Russian agent. If so, he can be impeached, removed, and then tried for treason.
I suppose that evidence that Trump committed treason could arise but until it does, I will assume that he is at worst a dupe, not a traitor. If I were a Russian spymaster, I would not regard Trump as a prime target for recruiting, given his lack of self-control. Thus, if Trump really were a Russian agent, by now he probably would have slipped up in some obvious ways.
2) Trump is not himself a Russian agent but he knows or has strong reason to suspect that one or more people who worked on his campaign and will work in his administration are Russian agents.
This is more plausible than proposition 1), but for now the evidence, while intriguing, is only circumstantial. We know that advisors to the Trump campaign had Russian ties. Trump's people apparently were responsible for eliminating a plank in the Republican Party Platform calling for arming Ukraine against Russia and its allies. Despite Trump's denials, we know that the U.S. intelligence community has concluded that Russian hacks appeared targeted to harm the Clinton campaign. We know that various Trump positions--such as questioning the U.S. commitment to NATO, denying the obvious fact that Russia annexed Crimea, and indicating a willingness to cooperate with Russia in the Middle East--are more Russia-friendly than positions taken by Clinton and most elected officials of both parties. And since the election, Trump announced plans to nominate Putin-BFF Rex Tillerson to be Secretary of State. There's no smoking gun there, but there's enough of an aroma of gunpowder that even if Trump himself doesn't know about a Russian mole (or colony of moles) in his operation, he or his advisors could fear what a full investigation might turn up.
3) Trump rationally fears that a thorough public investigation of Russian hacking and other attempted interference in the election would undermine the legitimacy of his presidency, even if it cannot be shown conclusively that but for the hacking and other attempted interference, he would have lost the Electoral College vote. He and his advisors have calculated that any political damage from his continuing to dismiss the evidence of Russian hacking is less serious than the damage that would arise from the findings of a thorough investigation.
This hypothesis would make a great deal of sense were it not for the fact that, if there really was no coordination, the political calculation seems wrong. The intelligence services will conclude at least a preliminary investigation before Trump takes office. If, as expected, it confirms Russian involvement and enough documentation is made public to establish that conclusion definitively (except on Breitbart, Infowars, etc.), then Trump will look the worse for having opposed the investigation. By contrast, if Trump and his team really weren't participating in a Russian plot and they invite the investigation using a Trumpian statement like the one above, then the result of the investigation would not be very damaging.
4) Trump's opposition to an investigation is not based on any sort of rational calculation. It is simply the product of his huge-but-fragile ego. Anything that is in any way connected with the possibility that he didn't win a ginormous unpresidented victory without any help from anybody must be met with the overwhelming force of Trump's blustering denials and fabrications.
Explanation 4) is pretty clearly the most likely of the ones I've considered. Even though giving a speech like the one I've drafted for Trump would help him politically, he won't do it, because to do so would require him to acknowledge, even for a few moments and for the purpose of rebutting them, the reasons why people think that Russian interference might have influenced the electoral outcome.
If there are any members of the Trump transition team reading this essay and you are persuaded, feel free to pass the speech along to the president-elect for him to deliver (preferably without attribution). You're welcome.
-------------
I'm sure I speak for all of us here at DoL when I say Merry Christmas, Happy Hanukkah, Feliz Navidad, Happy Kwanzaa, Happy Yule, Happy Festivus, and belated Happy Dhanu Sankranti, Milad un Nabi, and Bodhi Day. Also, Happy Holidays and Season's Greetings.
Friday, December 23, 2016
Thursday, December 22, 2016
Desperate Measures for Desperate Times
by Neil H. Buchanan
The Democrats have spent quite a bit of the time since November 8 asking themselves what they did wrong, how they lost the presidency even after they had been given the gift of what seemed like the world's most beatable opponent. More importantly, what should they do moving forward?
Much of the immediate post-election discussion centered around a baseless theory attacking "identity politics" as the cause of Clinton's loss. Fortunately, that moment seems to have passed (although one must never underestimate the staying power of a bad idea), and the conversation has now turned to whether the Democrats are simply too timid.
This was captured best in a recent column by David Leonhardt titled "Democrats Had a Knife, and the G.O.P. Had a Gun," which The New York Times published shortly after running "Buck Up, Democrats, and Fight Like Republicans," by Dahlia Lithwick and David S. Cohen. The common theme running through those columns is that Democrats simply need to be willing to take more aggressive stands than they have traditionally been willing to take.
To be clear, Democrats have been very good at organizing national campaigns, raising money, and so on. They were able to retake the House and the Senate during George W. Bush's presidency, and they held the Senate longer than they might have simply because they were able to exploit Republicans' weaknesses. (On the other hand, how difficult is it to win when your opponent runs an ad saying, "I am not a witch"?)
But the point that the columns linked above drive home is that Democrats are not willing to make innovative, risky arguments when the chips are down, preferring instead to believe that their good manners will be rewarded by voters. Lithwick and Cohen point to the Republicans' scorched-earth strategy during the 2000 Florida recount and related court battles, and Leonhardt contrasts President Obama's decency in 2016 with the Republicans' actions in North Carolina after they lost the governorship there this year.
Professor Dorf has noted that the Lithwick/Cohen claim is a bit overdone, because the Republicans' ex ante chances of winning in the courts with novel (a better word would be absurd) legal theories was actually reasonably good under the unique institutional circumstances of that time. That is an important (and accurate) point, but I am raising a different issue here, which is whether Democrats need to be bigger risk-takers when it comes to litigating in the courts of law as well as in the court of public opinion.
The short answer is that they must. If ever there were desperate times calling for desperate measures, those times are upon us. There is every reason to think that Republicans will become even more shameless when it comes to rigging elections, and the Democrats will be doomed to irrelevance if they cannot bring a real fight to the Republicans.
In some sense, this is all very obvious. "Politics ain't beanbag" is an old cliche, and it is not as if Democrats have treated politics as an idealized system. Even so, there is something very obviously self-defeating about the way that Democrats respond to Republicans' excesses, and it boils down to a matter of appearances. Democrats, it seems, are worried that they will look like sore losers and that Republicans will call them pathetic.
For example, during the final stages of the 2016 campaign, Trump surrogates were going on the news shows to deliver his talking points. Some of those surrogates were newcomers who were obviously in over their heads, stunned to find themselves in high places in a presidential election campaign. Others, however, were old Washington hands who were willing to join what looked like a losing campaign.
I recall watching a clip of one of Trump's spokesmen being interviewed by a network political commentator. (I think it was Chuck Todd on NBC, but those details hardly matter.) The Trump guy was saying that online polls showed that Trump had won one of the debates, but the interviewer was not having any of it, pointing out that the surveys on which the Trump campaign was relying were unscientific.
The exchange was fascinating, because the Trump guy absolutely would not be budged, saying repeatedly with a straight face that up was down and wisdom is ignorance. Finally, the interviewer's frustration boiled over, and he fairly pleaded, "Look, I know you. I know that you know better than this. You can't possibly believe what you're saying!" This had no impact, and Trump's man robotically repeated his points, with no evidence of embarrassment.
In a moment of even greater clarity, there was a panel discussion at Harvard shortly after the election, with the political professionals from the Clinton and Trump campaigns getting into a nasty on-stage argument about their opponents' tactics. Trump's campaign manager, Kellyanne Conway, turned to her counterpart on the Clinton campaign at one point and asked, "Do you think I ran a campaign where white supremacists had a platform? Are you going to look me in the face and tell me that?"
When I saw that, I flashed back to a time when I was sitting across a desk from a car salesman at an automobile dealership. I had caught him in one of many blatant lies, and I thought that he would at least back off of that claim. Instead, he looked at me with a combination of feigned hurt feelings and anger and said, "Are you calling me a liar? Are you actually saying to my face that you think I'm a liar?"
It was a brilliant tactic, drawing its strength from the mismatch between a person with no shame and another person who cares about normal human decency. Reeling from the accusation, I immediately backtracked and thought that maybe he is not really a liar, and I tried to think of any innocent explanations. I am happy that I was raised to be the kind of person who hesitates to confront another person so aggressively. Even so, trying not to be mean came at a cost, and I ended up not only buying the car from that liar but actually overpaying for it.
Looking for the most generous versions of other people's claims is, in fact, all but the prime directive for professors. We reflexively say things like, "Well, to be fair, it is true that ... ," and "I can see where my argument does not apply in all cases, but still I think it is not too much of a stretch to say ..." As avidly as we advance our arguments, our highest aspiration is to be able to say that we gave every alternative argument more than a fair hearing.
As scholars, that is absolutely what we should be doing. When that attitude translates into political strategy, however, it can cause problems. Earlier this year, I noted how the standard academic style (which carries over into many of the precincts of mainstream journalism) caused people who think of themselves as fair-minded to bend over backwards not to call Trump a liar.
When Trump claimed that the true unemployment rate was not 4.9 percent (as reported by the Bureau of Labor Statistics) but was actually somewhere between 28 and 42 percent, the best answer would have been to say, "No, it isn't." Instead, journalists and economists were soon tying themselves in knots. "Well, it's true that more than five percent of the population is not working, so if you redefine 'unemployed' to mean not currently holding a job, there are some numbers that get you to Trump's number."
Again, however, anyone not working for the Trump campaign should have simply said, "No, the unemployment rate is not one of those higher numbers. He is wrong." No reasonable person has ever said that "not working" means the same thing as unemployed, and playing with alternative definitions -- in an effort to say that maybe the person is not lying -- is an honorable instinct that unfortunately no longer has a place in modern American politics.
Similarly, when I first heard that Trump was claiming to have won by a "landslide" in the Electoral College, my professorial instinct was to say, "Well, I guess everyone can have their own definition of a vague word like landslide, but ... ." The right answer was, "No, he did not win in a landslide."
Part of the problem for Democratic spokespeople is, I think, that they worry about going on the TV interview shows and not being able to stay on message with a straight face. When Chuck Todd says, "You have to admit that your argument has weaknesses, don't you?" the default is to say, "Well, yes, you have a point, but ... ."
For example, there was some post-election discussion among Democrats about bringing a constitutional challenge to the winner-take-all approach to awarding electoral votes. Why did they not do that? As Lithwick and Cohen suggest, there is no doubt that the Republicans would have done that and more, if the roles had been reversed.
The short answer is surely that the top minds among Democrats rejected the argument out of hand, because it sounded ridiculous to them. Sitting across the desk from Wolf Blitzer and saying that there was a plausible argument against the way the Electoral College has worked since 1789 could have been embarrassing. Why look desperate?
Again, however, the Democrats are desperate at this point. They understandably worry about losing credibility by making arguments that their opponents will mock, but they fret about this even as those opponents have shown their willingness time and time again to stand behind absurdity with straight faces.
This was one of the infuriating things about President Obama during the majority of his presidency. He continually took an approach that suggested a defeatist mindset: "Well, to be fair, I can see why people might not understand why I might do X, so I'll back off."
Happily, Obama did finally learn the lesson that trying to avoid being criticized or even mocked is a fool's errand. In an interview earlier this year, he said: "You start realizing at a certain point, well, folks aren’t even trying to be consistent. They’re not even trying to be fair-minded in their assessments or recommendations. In which case the best thing for me to do is to try to figure out what the right thing to do is and just do it, and worry later about how Washington is grading me."
Of course, what Obama was saying there was that he no longer trimmed his sails when it came to policies and arguments that he thought were quite strong. That is a step forward -- an essential one -- but it is not quite what Lithwick and Cohen or Leonhardt are talking about. The idea is that Democrats need to be willing to take very aggressive positions and not undermine themselves by saying, "Well, I know that this is an extreme position, but ... ."
There are plenty of examples of how this strategy works. Democrats were positively freaked out when David Boies and Ted Olson brought their same-sex marriage case to the courts. There was (quite reasonable) concern about backlash and so on. That it turned out well is not proof that it could not have turned out poorly, but (to state the tautology bluntly) it is proof that it could turn out well.
Consider how successfully the Republicans have played this game over the years. What became D.C. v. Heller was the longest of longshots, based on an utterly ahistorical re-reading of the Second Amendment (see Justice Stevens's devastating dissent) that required a complete repudiation of settled law.
Or how about the first challenge to the Affordable Care Act, NFIB v. Sebelius? There, an argument that was utterly laughable when first proposed -- the "broccoli argument," based on a logically incoherent action/inaction distinction that was nowhere to be found in the law -- was adopted by five justices, four of whose earlier writings should have caused them to reject the commerce clause challenge out of hand.
The oft-forgotten second part of NFIB v. Sebelius is even more astounding. There, seven justices actually agreed that the Medicaid expansion amounted to impermissible coercion of the states. This was disastrous for the poor and middle class people in Republican-led states who were thus denied medical care, but it was a victory for people who were willing to make extreme legal claims and keep pushing them forward.
The people who pushed those theories, especially the professors who contributed intellectual firepower, took a beating on the talk shows and especially in the seminar rooms. What they did not do was show any sign of shame or embarrassment. Some of them surely believed every word of what they said, but Barack Obama also believed what he said even as he maintained a defensive crouch for most of his presidency.
Where are the opportunities for Democrats to take some risks and to face the possibility of being told that their legal theories are outside the mainstream? One obvious example is the post-election insanity in North Carolina, where the state Republicans have stripped the governor of many of his powers, most importantly the power to undo the Republicans' voter suppression efforts.
I do not doubt that the current state of legal doctrine makes any challenge to the N.C. Republicans' actions an uphill climb. But why not throw the kitchen sink at this one? For example, the so-called Guarantee Clause in Article Four of the Constitution says that "The United States shall guarantee to every State in this Union a Republican Form of Government."
What does that mean? No one really knows, but the basic idea has always been that the federal government must make sure that the "consent of the governed" is the basis for democratic legitimacy. In order to win a case based on this clause, the Democrats would have to overcome the "political question" obstacle (courts refusing to decide cases that could be handled by the political branches), and then they would have to prove that "republican governments" do not change the rules after the election to favor the losing side. The Democrats might lose. In fact, I would bet against them.
More generally, however, Democrats need to appreciate how strong their big arguments are. Republicans win by suppressing the votes of likely Democrats and redrawing legislative districts. Democrats can honestly argue that they do not want to suppress the votes of likely Republicans (or anyone else) and that they are willing to win or lose in fairly drawn districts.
In the end, what Democrats need to say is that the political branches (at both federal and state levels) are not self-regulating. It is understandable that the courts would avoid involving themselves in election-related decisions, but the admonishment to "take it to the people's representatives" is entirely empty when the people's will has been systematically subverted in the elections that determined those representatives.
There is nothing fun about losing, and there is nothing fun about being forced to make arguments that might be rejected. Democrats, and progressives more generally, habitually restrain themselves to their own disadvantage. That must change. Soon.
The Democrats have spent quite a bit of the time since November 8 asking themselves what they did wrong, how they lost the presidency even after they had been given the gift of what seemed like the world's most beatable opponent. More importantly, what should they do moving forward?
Much of the immediate post-election discussion centered around a baseless theory attacking "identity politics" as the cause of Clinton's loss. Fortunately, that moment seems to have passed (although one must never underestimate the staying power of a bad idea), and the conversation has now turned to whether the Democrats are simply too timid.
This was captured best in a recent column by David Leonhardt titled "Democrats Had a Knife, and the G.O.P. Had a Gun," which The New York Times published shortly after running "Buck Up, Democrats, and Fight Like Republicans," by Dahlia Lithwick and David S. Cohen. The common theme running through those columns is that Democrats simply need to be willing to take more aggressive stands than they have traditionally been willing to take.
To be clear, Democrats have been very good at organizing national campaigns, raising money, and so on. They were able to retake the House and the Senate during George W. Bush's presidency, and they held the Senate longer than they might have simply because they were able to exploit Republicans' weaknesses. (On the other hand, how difficult is it to win when your opponent runs an ad saying, "I am not a witch"?)
But the point that the columns linked above drive home is that Democrats are not willing to make innovative, risky arguments when the chips are down, preferring instead to believe that their good manners will be rewarded by voters. Lithwick and Cohen point to the Republicans' scorched-earth strategy during the 2000 Florida recount and related court battles, and Leonhardt contrasts President Obama's decency in 2016 with the Republicans' actions in North Carolina after they lost the governorship there this year.
Professor Dorf has noted that the Lithwick/Cohen claim is a bit overdone, because the Republicans' ex ante chances of winning in the courts with novel (a better word would be absurd) legal theories was actually reasonably good under the unique institutional circumstances of that time. That is an important (and accurate) point, but I am raising a different issue here, which is whether Democrats need to be bigger risk-takers when it comes to litigating in the courts of law as well as in the court of public opinion.
The short answer is that they must. If ever there were desperate times calling for desperate measures, those times are upon us. There is every reason to think that Republicans will become even more shameless when it comes to rigging elections, and the Democrats will be doomed to irrelevance if they cannot bring a real fight to the Republicans.
In some sense, this is all very obvious. "Politics ain't beanbag" is an old cliche, and it is not as if Democrats have treated politics as an idealized system. Even so, there is something very obviously self-defeating about the way that Democrats respond to Republicans' excesses, and it boils down to a matter of appearances. Democrats, it seems, are worried that they will look like sore losers and that Republicans will call them pathetic.
For example, during the final stages of the 2016 campaign, Trump surrogates were going on the news shows to deliver his talking points. Some of those surrogates were newcomers who were obviously in over their heads, stunned to find themselves in high places in a presidential election campaign. Others, however, were old Washington hands who were willing to join what looked like a losing campaign.
I recall watching a clip of one of Trump's spokesmen being interviewed by a network political commentator. (I think it was Chuck Todd on NBC, but those details hardly matter.) The Trump guy was saying that online polls showed that Trump had won one of the debates, but the interviewer was not having any of it, pointing out that the surveys on which the Trump campaign was relying were unscientific.
The exchange was fascinating, because the Trump guy absolutely would not be budged, saying repeatedly with a straight face that up was down and wisdom is ignorance. Finally, the interviewer's frustration boiled over, and he fairly pleaded, "Look, I know you. I know that you know better than this. You can't possibly believe what you're saying!" This had no impact, and Trump's man robotically repeated his points, with no evidence of embarrassment.
In a moment of even greater clarity, there was a panel discussion at Harvard shortly after the election, with the political professionals from the Clinton and Trump campaigns getting into a nasty on-stage argument about their opponents' tactics. Trump's campaign manager, Kellyanne Conway, turned to her counterpart on the Clinton campaign at one point and asked, "Do you think I ran a campaign where white supremacists had a platform? Are you going to look me in the face and tell me that?"
When I saw that, I flashed back to a time when I was sitting across a desk from a car salesman at an automobile dealership. I had caught him in one of many blatant lies, and I thought that he would at least back off of that claim. Instead, he looked at me with a combination of feigned hurt feelings and anger and said, "Are you calling me a liar? Are you actually saying to my face that you think I'm a liar?"
It was a brilliant tactic, drawing its strength from the mismatch between a person with no shame and another person who cares about normal human decency. Reeling from the accusation, I immediately backtracked and thought that maybe he is not really a liar, and I tried to think of any innocent explanations. I am happy that I was raised to be the kind of person who hesitates to confront another person so aggressively. Even so, trying not to be mean came at a cost, and I ended up not only buying the car from that liar but actually overpaying for it.
Looking for the most generous versions of other people's claims is, in fact, all but the prime directive for professors. We reflexively say things like, "Well, to be fair, it is true that ... ," and "I can see where my argument does not apply in all cases, but still I think it is not too much of a stretch to say ..." As avidly as we advance our arguments, our highest aspiration is to be able to say that we gave every alternative argument more than a fair hearing.
As scholars, that is absolutely what we should be doing. When that attitude translates into political strategy, however, it can cause problems. Earlier this year, I noted how the standard academic style (which carries over into many of the precincts of mainstream journalism) caused people who think of themselves as fair-minded to bend over backwards not to call Trump a liar.
When Trump claimed that the true unemployment rate was not 4.9 percent (as reported by the Bureau of Labor Statistics) but was actually somewhere between 28 and 42 percent, the best answer would have been to say, "No, it isn't." Instead, journalists and economists were soon tying themselves in knots. "Well, it's true that more than five percent of the population is not working, so if you redefine 'unemployed' to mean not currently holding a job, there are some numbers that get you to Trump's number."
Again, however, anyone not working for the Trump campaign should have simply said, "No, the unemployment rate is not one of those higher numbers. He is wrong." No reasonable person has ever said that "not working" means the same thing as unemployed, and playing with alternative definitions -- in an effort to say that maybe the person is not lying -- is an honorable instinct that unfortunately no longer has a place in modern American politics.
Similarly, when I first heard that Trump was claiming to have won by a "landslide" in the Electoral College, my professorial instinct was to say, "Well, I guess everyone can have their own definition of a vague word like landslide, but ... ." The right answer was, "No, he did not win in a landslide."
Part of the problem for Democratic spokespeople is, I think, that they worry about going on the TV interview shows and not being able to stay on message with a straight face. When Chuck Todd says, "You have to admit that your argument has weaknesses, don't you?" the default is to say, "Well, yes, you have a point, but ... ."
For example, there was some post-election discussion among Democrats about bringing a constitutional challenge to the winner-take-all approach to awarding electoral votes. Why did they not do that? As Lithwick and Cohen suggest, there is no doubt that the Republicans would have done that and more, if the roles had been reversed.
The short answer is surely that the top minds among Democrats rejected the argument out of hand, because it sounded ridiculous to them. Sitting across the desk from Wolf Blitzer and saying that there was a plausible argument against the way the Electoral College has worked since 1789 could have been embarrassing. Why look desperate?
Again, however, the Democrats are desperate at this point. They understandably worry about losing credibility by making arguments that their opponents will mock, but they fret about this even as those opponents have shown their willingness time and time again to stand behind absurdity with straight faces.
This was one of the infuriating things about President Obama during the majority of his presidency. He continually took an approach that suggested a defeatist mindset: "Well, to be fair, I can see why people might not understand why I might do X, so I'll back off."
Happily, Obama did finally learn the lesson that trying to avoid being criticized or even mocked is a fool's errand. In an interview earlier this year, he said: "You start realizing at a certain point, well, folks aren’t even trying to be consistent. They’re not even trying to be fair-minded in their assessments or recommendations. In which case the best thing for me to do is to try to figure out what the right thing to do is and just do it, and worry later about how Washington is grading me."
Of course, what Obama was saying there was that he no longer trimmed his sails when it came to policies and arguments that he thought were quite strong. That is a step forward -- an essential one -- but it is not quite what Lithwick and Cohen or Leonhardt are talking about. The idea is that Democrats need to be willing to take very aggressive positions and not undermine themselves by saying, "Well, I know that this is an extreme position, but ... ."
There are plenty of examples of how this strategy works. Democrats were positively freaked out when David Boies and Ted Olson brought their same-sex marriage case to the courts. There was (quite reasonable) concern about backlash and so on. That it turned out well is not proof that it could not have turned out poorly, but (to state the tautology bluntly) it is proof that it could turn out well.
Consider how successfully the Republicans have played this game over the years. What became D.C. v. Heller was the longest of longshots, based on an utterly ahistorical re-reading of the Second Amendment (see Justice Stevens's devastating dissent) that required a complete repudiation of settled law.
Or how about the first challenge to the Affordable Care Act, NFIB v. Sebelius? There, an argument that was utterly laughable when first proposed -- the "broccoli argument," based on a logically incoherent action/inaction distinction that was nowhere to be found in the law -- was adopted by five justices, four of whose earlier writings should have caused them to reject the commerce clause challenge out of hand.
The oft-forgotten second part of NFIB v. Sebelius is even more astounding. There, seven justices actually agreed that the Medicaid expansion amounted to impermissible coercion of the states. This was disastrous for the poor and middle class people in Republican-led states who were thus denied medical care, but it was a victory for people who were willing to make extreme legal claims and keep pushing them forward.
The people who pushed those theories, especially the professors who contributed intellectual firepower, took a beating on the talk shows and especially in the seminar rooms. What they did not do was show any sign of shame or embarrassment. Some of them surely believed every word of what they said, but Barack Obama also believed what he said even as he maintained a defensive crouch for most of his presidency.
Where are the opportunities for Democrats to take some risks and to face the possibility of being told that their legal theories are outside the mainstream? One obvious example is the post-election insanity in North Carolina, where the state Republicans have stripped the governor of many of his powers, most importantly the power to undo the Republicans' voter suppression efforts.
I do not doubt that the current state of legal doctrine makes any challenge to the N.C. Republicans' actions an uphill climb. But why not throw the kitchen sink at this one? For example, the so-called Guarantee Clause in Article Four of the Constitution says that "The United States shall guarantee to every State in this Union a Republican Form of Government."
What does that mean? No one really knows, but the basic idea has always been that the federal government must make sure that the "consent of the governed" is the basis for democratic legitimacy. In order to win a case based on this clause, the Democrats would have to overcome the "political question" obstacle (courts refusing to decide cases that could be handled by the political branches), and then they would have to prove that "republican governments" do not change the rules after the election to favor the losing side. The Democrats might lose. In fact, I would bet against them.
More generally, however, Democrats need to appreciate how strong their big arguments are. Republicans win by suppressing the votes of likely Democrats and redrawing legislative districts. Democrats can honestly argue that they do not want to suppress the votes of likely Republicans (or anyone else) and that they are willing to win or lose in fairly drawn districts.
In the end, what Democrats need to say is that the political branches (at both federal and state levels) are not self-regulating. It is understandable that the courts would avoid involving themselves in election-related decisions, but the admonishment to "take it to the people's representatives" is entirely empty when the people's will has been systematically subverted in the elections that determined those representatives.
There is nothing fun about losing, and there is nothing fun about being forced to make arguments that might be rejected. Democrats, and progressives more generally, habitually restrain themselves to their own disadvantage. That must change. Soon.
Wednesday, December 21, 2016
Self-Inflicted Abortion and the Difficulty of Classification
by Sherry F. Colb
In my Verdict column for this week, I discuss the case of a Tennessee woman, Anna Yocca, who has been charged with several offenses, including attempted murder and attempted criminal abortion, for allegedly using a coat hanger to try to terminate her pregnancy at 24 weeks gestation. My column analyzes the "murder" classification and suggests that it has something to it but that it should ultimately not apply, because the act being prosecuted took place while the fetus was located inside the woman's body. I also consider some lessons that both pro-choice and pro-life activists can take from what is inarguably a tragic situation for Anna Yocca.
In this post, I want to consider why I believe that so long as the fetus is located inside the woman's body, her action should be considered an abortion rather than a murder (or in Yocca's case, an attempted abortion rather than an attempted murder). On the one hand, the fetus is viable. This is important because it means that if Yocca truly wanted to stop being pregnant, she could in theory have done so without killing (or attempting to kill) the fetus. She could, for example, have induced labor and given birth to the fetus whom/that she no longer wanted to carry.
But is it fair to ask of a woman that she deliver what will inevitably be a compromised infant at 24 weeks as the price of not wanting to be pregnant anymore? In other words, if a woman is to have the right to terminate her pregnancy at 24 weeks (which, due to fetal viability, she does not have under existing constitutional law), does it make sense to demand that she deliver the fetus alive rather than performing a life-ending abortion, given that the baby will confront many serious health difficulties as a result of being born so prematurely? Arguably, it does not. Unless the fetus has reached a stage at which its prematurity will likely not have a major effect on its life prospects (e.g., at 32 or 33 weeks), it may be the most humane thing to say that if a woman is to terminate her pregnancy, she should do so in the usual way, by simultaneously ending her pregnancy and ending the life of the fetus. I am torn about this, though, because once the baby is born alive, I would not favor euthanizing him or her, and it seems like that position is inconsistent with supporting the right of the woman not only to terminate her 24-week pregnancy but to kill the fetus in the process.
This gets us back to the relevance of the fact that the fetus is located inside the woman's body at the time that she kills it. That fact seems to make it an abortion rather than a murder that is taking place. This is at least in part because she is doing something to her body, and murder feels like a category that ought to apply only when someone does something to someone outside of her body. Our understanding of the prototypical murder, then, is informed by a view of the perpetrating individual as one person, separate from the victim, rather than one person containing another person who is the victim of the murder. This may reflect the fact that the man's life cycle continues to be the model for our law and accordingly, the uniquely female state of being one person who contains another does not make its way into any of the neat categories designed by the law. This reality suggests that when we encounter this uniquely female state of being, we ought to be careful about classifying it as though it were identical to the more familiar, male ways of being (i.e., where an individual who aggresses against another individual is physically separate from the other individual at the time).
If we imagine an artificial uterus, things become far simpler. At the point that we can take a fertilized egg and place it inside a working artificial uterus for the entire gestational period, the question of when a rights-bearing life begins will become far more important than it currently is. There will, at that time, be the possibility of a woman wishing to terminate the life of a fetus without the fulfillment or frustration of this wish having any potential impact on the woman's bodily integrity. At that point, the woman will be more like a man (with the caveat that she will not be intruding on anyone's bodily integrity by either forcing a gestating woman to remain pregnant against her will or forcing a gestating woman to terminate her pregnancy against her will). In the view that Michael Dorf and I put forth in our book, Beating Hearts: Abortion and Animal Rights, the fetus becomes "someone" who has interests, and can therefore have rights, at the point of fetal sentience. There are disputes about when this occurs, but the consensus places it somewhere between week 20 and week 30 of pregnancy. If this line were to be adopted in the world of the artificial womb, then the woman (or the man) could terminate the life of the fetus up until that point and not beyond it. Disputes might come to revolve around whether the right to avoid becoming a parent trumps the right to become a parent, in the event that the father and mother of the pregnancy disagree on termination prior to the point of fetal sentience. But since viability would coincide with conception (due to the availability of the artificial uterus), killing the fetus would no longer be a necessary consequence of terminating a pregnancy at any stage. This would mean that once the fetus acquires the status of a rights-bearing being (at sentience, as we would suggest), killing the fetus would really be no different from killing a born person.
In the world we live in, however, there is no artificial uterus, and viability seems to happen at around 23 or 24 weeks of pregnancy. Therefore, an attempt to terminate a pregnancy will generally entail the killing of the fetus and even where it might not, it will necessarily involve a woman doing something to her own body rather than to a being located outside of her body. For this reason, regardless of whether the fetus is viable and even sentient, it would seem that an abortion calls for a distinct classification from that which we would attach to killing someone whose body and life are physically separate from that of the perpetrator.
Consider the following potential counterexample. If a woman is watching her baby boy and she takes a drug that she knows will make her fall asleep, she could be held criminally responsible for any harm that comes to her baby as a result of her neglect. If the baby were to die, she might be guilty of manslaughter or some other homicide crime, despite the fact that her wrongdoing involved her doing something to her own body rather than directly to another body outside of herself. So why shouldn't a late-term abortion fall into the same category? In both cases, the woman acts upon her own body with the consequence of harm coming to a sentient being (a baby or sentient fetus). What is the difference?
The difference, I would suggest, is that when we hold the mother accountable for taking drugs that result in child neglect, we are not truly condemning the fact that she took the drugs. Instead, we are condemning her for the fact that when she took the drugs, her baby was dependent on her for safety. Had she called a babysitter or a friend or someone else to watch the baby while she slept, her taking sleeping pills would not represent a culpable act toward her baby. Her action on her own body is thus separable from the harm that comes to the baby and is only contingently linked to that harm, because of other circumstances that might have been different.
In the case of a pregnant woman, by contrast, there is no circumstance under which the woman could have done "the same thing" to her body without having the harmful consequence to her fetus. She is pregnant, so she has no choice when she acts upon her body but to act upon her fetus as well. This is true whether she is taking drugs or vitamins or inserting a coat hanger into her uterus. She is tied to the fetus because of the pregnancy and therefore has no option of acting only upon herself, the way that a woman planning to take a sleeping pill does. It is true, of course, that the woman who terminates her pregnancy (and her fetus's life) is likely aiming to kill the fetus rather than just to do something to herself (by contrast to the woman who takes a sleeping pill). Yet the fact that the pregnant woman has no option of severing her own actions on her body from the impact of those actions on her fetus places her in a vulnerable position that people who live in physically separate bodies from other individuals in their lives are not. For that reason, homicide seems like the wrong category into which to place the killing of a fetus still located inside one's body.
None of this is to say that killing a fetus located inside one's body is always a morally neutral act or even that the law should have nothing to say about it. Once the fetus is truly viable (as opposed to viable in a way that will result in a very compromised and suffering child if born alive), it seems generally to be legitimate to ask of the woman that she deliver the fetus alive rather than kill it at the point that she feels she no longer wishes to be pregnant. And if the reason that she no longer wishes to be pregnant is that she wants her fetus to be dead, then there may be a point in pregnancy (what I would call "true viability") at which she does not get to enact that wish without facing legal consequences. Though she continues to have an interest in no longer being pregnant, that is, she does not continue to have an interest in procuring the death of her fetus. Yet even if the act is an illegal abortion, it should continue to be called and treated as an abortion, a less serious offense than if she were to kill a physically separate being, in virtue of her lacking the option of acting on her body without simultaneously acting on the body of the fetus. I am interested in knowing whether readers share this intuition, that so long as a woman has no option of acting solely on her own body, her actions on her body (including the killing of her fetus at an impermissible point in pregnancy) should fall into a different category from the killing of a physically separate baby (or sentient fetus in an artificial womb).
In my Verdict column for this week, I discuss the case of a Tennessee woman, Anna Yocca, who has been charged with several offenses, including attempted murder and attempted criminal abortion, for allegedly using a coat hanger to try to terminate her pregnancy at 24 weeks gestation. My column analyzes the "murder" classification and suggests that it has something to it but that it should ultimately not apply, because the act being prosecuted took place while the fetus was located inside the woman's body. I also consider some lessons that both pro-choice and pro-life activists can take from what is inarguably a tragic situation for Anna Yocca.
In this post, I want to consider why I believe that so long as the fetus is located inside the woman's body, her action should be considered an abortion rather than a murder (or in Yocca's case, an attempted abortion rather than an attempted murder). On the one hand, the fetus is viable. This is important because it means that if Yocca truly wanted to stop being pregnant, she could in theory have done so without killing (or attempting to kill) the fetus. She could, for example, have induced labor and given birth to the fetus whom/that she no longer wanted to carry.
But is it fair to ask of a woman that she deliver what will inevitably be a compromised infant at 24 weeks as the price of not wanting to be pregnant anymore? In other words, if a woman is to have the right to terminate her pregnancy at 24 weeks (which, due to fetal viability, she does not have under existing constitutional law), does it make sense to demand that she deliver the fetus alive rather than performing a life-ending abortion, given that the baby will confront many serious health difficulties as a result of being born so prematurely? Arguably, it does not. Unless the fetus has reached a stage at which its prematurity will likely not have a major effect on its life prospects (e.g., at 32 or 33 weeks), it may be the most humane thing to say that if a woman is to terminate her pregnancy, she should do so in the usual way, by simultaneously ending her pregnancy and ending the life of the fetus. I am torn about this, though, because once the baby is born alive, I would not favor euthanizing him or her, and it seems like that position is inconsistent with supporting the right of the woman not only to terminate her 24-week pregnancy but to kill the fetus in the process.
This gets us back to the relevance of the fact that the fetus is located inside the woman's body at the time that she kills it. That fact seems to make it an abortion rather than a murder that is taking place. This is at least in part because she is doing something to her body, and murder feels like a category that ought to apply only when someone does something to someone outside of her body. Our understanding of the prototypical murder, then, is informed by a view of the perpetrating individual as one person, separate from the victim, rather than one person containing another person who is the victim of the murder. This may reflect the fact that the man's life cycle continues to be the model for our law and accordingly, the uniquely female state of being one person who contains another does not make its way into any of the neat categories designed by the law. This reality suggests that when we encounter this uniquely female state of being, we ought to be careful about classifying it as though it were identical to the more familiar, male ways of being (i.e., where an individual who aggresses against another individual is physically separate from the other individual at the time).
If we imagine an artificial uterus, things become far simpler. At the point that we can take a fertilized egg and place it inside a working artificial uterus for the entire gestational period, the question of when a rights-bearing life begins will become far more important than it currently is. There will, at that time, be the possibility of a woman wishing to terminate the life of a fetus without the fulfillment or frustration of this wish having any potential impact on the woman's bodily integrity. At that point, the woman will be more like a man (with the caveat that she will not be intruding on anyone's bodily integrity by either forcing a gestating woman to remain pregnant against her will or forcing a gestating woman to terminate her pregnancy against her will). In the view that Michael Dorf and I put forth in our book, Beating Hearts: Abortion and Animal Rights, the fetus becomes "someone" who has interests, and can therefore have rights, at the point of fetal sentience. There are disputes about when this occurs, but the consensus places it somewhere between week 20 and week 30 of pregnancy. If this line were to be adopted in the world of the artificial womb, then the woman (or the man) could terminate the life of the fetus up until that point and not beyond it. Disputes might come to revolve around whether the right to avoid becoming a parent trumps the right to become a parent, in the event that the father and mother of the pregnancy disagree on termination prior to the point of fetal sentience. But since viability would coincide with conception (due to the availability of the artificial uterus), killing the fetus would no longer be a necessary consequence of terminating a pregnancy at any stage. This would mean that once the fetus acquires the status of a rights-bearing being (at sentience, as we would suggest), killing the fetus would really be no different from killing a born person.
In the world we live in, however, there is no artificial uterus, and viability seems to happen at around 23 or 24 weeks of pregnancy. Therefore, an attempt to terminate a pregnancy will generally entail the killing of the fetus and even where it might not, it will necessarily involve a woman doing something to her own body rather than to a being located outside of her body. For this reason, regardless of whether the fetus is viable and even sentient, it would seem that an abortion calls for a distinct classification from that which we would attach to killing someone whose body and life are physically separate from that of the perpetrator.
Consider the following potential counterexample. If a woman is watching her baby boy and she takes a drug that she knows will make her fall asleep, she could be held criminally responsible for any harm that comes to her baby as a result of her neglect. If the baby were to die, she might be guilty of manslaughter or some other homicide crime, despite the fact that her wrongdoing involved her doing something to her own body rather than directly to another body outside of herself. So why shouldn't a late-term abortion fall into the same category? In both cases, the woman acts upon her own body with the consequence of harm coming to a sentient being (a baby or sentient fetus). What is the difference?
The difference, I would suggest, is that when we hold the mother accountable for taking drugs that result in child neglect, we are not truly condemning the fact that she took the drugs. Instead, we are condemning her for the fact that when she took the drugs, her baby was dependent on her for safety. Had she called a babysitter or a friend or someone else to watch the baby while she slept, her taking sleeping pills would not represent a culpable act toward her baby. Her action on her own body is thus separable from the harm that comes to the baby and is only contingently linked to that harm, because of other circumstances that might have been different.
In the case of a pregnant woman, by contrast, there is no circumstance under which the woman could have done "the same thing" to her body without having the harmful consequence to her fetus. She is pregnant, so she has no choice when she acts upon her body but to act upon her fetus as well. This is true whether she is taking drugs or vitamins or inserting a coat hanger into her uterus. She is tied to the fetus because of the pregnancy and therefore has no option of acting only upon herself, the way that a woman planning to take a sleeping pill does. It is true, of course, that the woman who terminates her pregnancy (and her fetus's life) is likely aiming to kill the fetus rather than just to do something to herself (by contrast to the woman who takes a sleeping pill). Yet the fact that the pregnant woman has no option of severing her own actions on her body from the impact of those actions on her fetus places her in a vulnerable position that people who live in physically separate bodies from other individuals in their lives are not. For that reason, homicide seems like the wrong category into which to place the killing of a fetus still located inside one's body.
None of this is to say that killing a fetus located inside one's body is always a morally neutral act or even that the law should have nothing to say about it. Once the fetus is truly viable (as opposed to viable in a way that will result in a very compromised and suffering child if born alive), it seems generally to be legitimate to ask of the woman that she deliver the fetus alive rather than kill it at the point that she feels she no longer wishes to be pregnant. And if the reason that she no longer wishes to be pregnant is that she wants her fetus to be dead, then there may be a point in pregnancy (what I would call "true viability") at which she does not get to enact that wish without facing legal consequences. Though she continues to have an interest in no longer being pregnant, that is, she does not continue to have an interest in procuring the death of her fetus. Yet even if the act is an illegal abortion, it should continue to be called and treated as an abortion, a less serious offense than if she were to kill a physically separate being, in virtue of her lacking the option of acting on her body without simultaneously acting on the body of the fetus. I am interested in knowing whether readers share this intuition, that so long as a woman has no option of acting solely on her own body, her actions on her body (including the killing of her fetus at an impermissible point in pregnancy) should fall into a different category from the killing of a physically separate baby (or sentient fetus in an artificial womb).
Tuesday, December 20, 2016
Palliative Care for Democracy?
by Neil H. Buchanan
[Note: The eighth-to-last paragraph of this post has been edited to remove an assertion about U.S. states' adoption of the covenant of good faith and fair dealing. This change does not change the substance of the sentence, the paragraph, or the post. December 21, 2016]
Is it too late to save constitutional democracy in the United States? It is possible that there is nothing that can be done to prevent Donald Trump's presidency from turning the U.S. into an autocratic state, completing the Republicans' generation-long effort to make sure that only certain people are allowed to participate in our weakening republic.
Even if that is true -- and no one can say with certainty, at this point in history, whether we will indeed go down that path -- it is important to decide how to proceed even in the face of inevitable disaster. Should people who believe in the rule of law act as if there is something still to be done to save the nation from political death, or should they face reality and merely try to minimize the pain as the patient dies slowly in hospice care?
Here, I will explain why it is so difficult to see a hopeful path forward after the 2016 elections. The deep problem is not merely that the Democrats will not control any branch of the federal government or most state governments, although that is obviously a huge disability. The ultimate problem is that Trump and the Republicans have thrown off any hint of good faith, which means that Democrats who try to bargain with them might be fated to be played for suckers.
In such circumstances, Democrats could choose to simply ease people's pain as the republic fades away. Like palliative care for the dying, strategies that would be unthinkable for other patients -- such as administering high doses of painkillers -- might now make sense.
In two recent columns, I have discussed the Democrats' possible use of leverage in any negotiations with the new Trump Administration. I first argued that Democrats, who have been arguing for years in favor of large-scale infrastructure spending, should not agree to vote for such spending (votes that Trump might need to overcome anti-spending zealots in his own party) unless they get something important in return.
The most important thing that the Democrats need right now is to restore voting rights to the people. This involves fighting both direct (voter suppression efforts) and indirect (gerrymandering of federal and state electoral districts) Republican strategies that have effectively disenfranchised millions of Americans.
In the second of those two columns, I broadened the point. Not only should Democrats refuse to support any infrastructure bill until Trump agrees to provisions that would restore some measure of democracy, but they must make voting rights their sole goal in every negotiation, no matter what Trump needs them to do.
I am still comfortable with that argument, but it is important now to discuss just how difficult it is to turn that idea into an actual negotiating strategy. After all, much of the dirty work that Republicans have done is at the state level. It is difficult to see how something like an infrastructure-for-voting-rights deal could actually be designed, because there might be nothing that Trump could promise to do as president that Democrats really need.
That is not quite true, of course, because congressional Republicans are surely now planning to take their anti-democracy campaign to the national level. Trump could be induced to agree to veto a federal voter suppression bill or a repeal of the Voting Rights Act, the defeat of both of which would be important victories for Democrats.
Still, there has already been so much damage done by Republicans in the last few decades that Democrats need to find ways to undo that damage even as they fight Republicans' efforts to make things worse. Is there anything that the Democrats could get Trump to do to help there?
Trump might not be entirely committed to the Republicans' anti-voting rights efforts. Yes, those efforts guaranteed his 2016 victory, but he might not particularly care about state-level and district-level politics. He will have so many advantages of incumbency going into 2020 that he might not need to worry about keeping Paul Ryan's House majority intact as part of his own reelection effort.
Perversely, if Trump were willing to harm Republicans' ability to rig elections, Democrats might need to count on the autocratic impulses that are so scary about Trump. That is, while presidents like Barack Obama and George H.W. Bush might have been unable to dictate to their national and state parties, Trump might have no compunction about breaking every norm and law to force people to bend to his will.
We are already pretty far down a rabbit hole, but here is where it gets even crazier. Let us imagine that Trump told Democrats that he would give them what they need on voting rights (in whole or in part), and Democrats concluded that this would be a good deal. What then?
The problem is that Trump has shown, not only as a candidate but throughout his life, that he does not respect the terms of any deal that he makes. If he can get away with it, he will screw over his counter-parties every time. Why would he not do this when dealing with the minority party, whose help he will almost never need?
Take, for example, a different quid pro quo that Democrats have been discussing recently. For many Republicans, anti-government extremism includes taking a blood oath never to increase the debt ceiling. Trump will not want to face that possibility (as I will discuss in a column next week), so he will need Democrats' votes to pass a bill to increase the debt limit.
One Democratic senator has reportedly suggested that Democrats condition their agreement to increase the debt ceiling on Trump's agreement to require presidential candidates -- retroactively to the 2016 election -- to release their tax returns. Pretty clever, right? Trump would truly be in a tough spot, needing to give up something important in order to get something even more important.
But as I noted only last week, Trump does not believe in win-win approaches to negotiating (or anything else). He has shown again and again that he only feels victorious when his opponents lose in humiliating fashion. And that is why he does not respect the terms of deals that he makes.
Suppose that Trump tells Democrats that he will sign a bill containing the provisions that they demand. Suppose further that Republican leaders are forced to put those provisions in the same bill that contains the debt ceiling increase, so that Trump cannot sign one bill and veto the other. Is that enough?
A person who is willing to honor his word and who respects the nature of compromise would uphold his part of the deal. Trump, on the other hand, could do one of two things.
First, he might simply refuse after the fact to release his tax returns, while ordering the Treasury Department to prevent the IRS from obeying any requirements in the new law to release those returns. Second, Trump could simply tell Republicans the day after the bill is passed to send another bill to his desk negating the provisions that the Democrats demanded.
Democrats could then complain that Trump did not live up to his side of the bargain. Trump would tweet back: "Dems got played and now are crybabies because I outsmarted them. Sad!" The mainstream press would hammer Trump over this for a few days but soon treat it as old news, with the discussion devolving into how much blame the Democrats deserve for not realizing that Trump would betray them. It is not as if they can claim to be surprised by his dishonesty, right?
As I noted above, Democrats will have very few situations in which Trump might need their votes or cooperation. But if there is any possibility of a future time that Trump would need them, game theory tells us that he should want to maintain some credibility. Once he reveals himself to be untrustworthy, Democrats would supposedly not be fooled again.
But what is their alternative? Suppose that, a few weeks or months after Trump completely plays them on the bill that I described above, Trump then needs the Democrats to vote for an infrastructure bill. Democrats will have reasons to say, "Well, maybe this time ..." True, Democrats would then do everything possible to build guarantees into any deal, but they cannot simply walk away.
In the United States, parties to a contract are generally required to engage in "good faith and fair dealing," not because we think that people will not drive a hard bargain but because even the most hard-fought deals require the confidence that the other side is not hiding something or planning to defeat the purpose of the deal. Opportunism undermines capitalism's need for reliable contracts.
In politics, most deals cannot be enforced by courts, but both parties used to understand that chickens come home to roost. But when Republicans began to nakedly abuse the filibuster, when they blocked Obama's Supreme Court nominee under the flimsiest pretext, and when they violated one political norm after another, the ability to make mutually beneficial political deals slowly came undone.
Trump merely takes this to the next level, not even pretending that he will hesitate to press an advantage. Democrats, when they feel the need to make a deal, will be well advised to impose as many conditions as possible, but ultimately they might not be able to trust any agreement. Even if they get Trump to veto a repeal of the Voting Rights Act, for example, there is nothing stopping the Republicans from passing the same bill again, with Trump saying that he can sign the new bill because he honored his pledge to veto the original one.
All of which means that my advice to Democrats -- put all of your efforts into restoring voting rights -- might be great in theory but impossible to achieve in Trumpworld. Maybe Republicans have already so debased the idea of government for the people that there is no coming back, especially with a shameless opportunist like Trump in the Oval Office. If so, what does that mean?
Even when long-term defeat is inevitable, should Democrats agree to short-term wins? It continues to be true that infrastructure spending would be good for the economy, but Republicans might refuse to fund it. Should Democrats step in to make that good thing happen?
If the ideal outcome -- restoration of something resembling a true constitutional democracy -- is off the table, Democrats might reasonably decide that they should simply go ahead and do what they can for the good of the country. The additional jobs and higher incomes that would result from infrastructure spending would help people (many of whom voted for Trump, but no matter). Is that not what good public servants should be trying to achieve?
The patient might truly be dying, with no hope of recovery. At that point, it becomes important not to worry about things like balanced diets. Why withhold one good thing when there is no hope of getting any other good things that would make the patient even stronger after recovery? Keeping the patient as comfortable as possible as life slips away becomes the humane thing to do.
This is all more than a bit depressing, I confess. Maybe some Republicans will decide to stand up to Trump, and maybe the Democrats will figure out ways to prevent Trump and his party from engaging in fatally opportunistic strategies. If not, however, maybe the right answer is just to make everyone feel as good as possible for as long as possible.
[Note: The eighth-to-last paragraph of this post has been edited to remove an assertion about U.S. states' adoption of the covenant of good faith and fair dealing. This change does not change the substance of the sentence, the paragraph, or the post. December 21, 2016]
Is it too late to save constitutional democracy in the United States? It is possible that there is nothing that can be done to prevent Donald Trump's presidency from turning the U.S. into an autocratic state, completing the Republicans' generation-long effort to make sure that only certain people are allowed to participate in our weakening republic.
Even if that is true -- and no one can say with certainty, at this point in history, whether we will indeed go down that path -- it is important to decide how to proceed even in the face of inevitable disaster. Should people who believe in the rule of law act as if there is something still to be done to save the nation from political death, or should they face reality and merely try to minimize the pain as the patient dies slowly in hospice care?
Here, I will explain why it is so difficult to see a hopeful path forward after the 2016 elections. The deep problem is not merely that the Democrats will not control any branch of the federal government or most state governments, although that is obviously a huge disability. The ultimate problem is that Trump and the Republicans have thrown off any hint of good faith, which means that Democrats who try to bargain with them might be fated to be played for suckers.
In such circumstances, Democrats could choose to simply ease people's pain as the republic fades away. Like palliative care for the dying, strategies that would be unthinkable for other patients -- such as administering high doses of painkillers -- might now make sense.
In two recent columns, I have discussed the Democrats' possible use of leverage in any negotiations with the new Trump Administration. I first argued that Democrats, who have been arguing for years in favor of large-scale infrastructure spending, should not agree to vote for such spending (votes that Trump might need to overcome anti-spending zealots in his own party) unless they get something important in return.
The most important thing that the Democrats need right now is to restore voting rights to the people. This involves fighting both direct (voter suppression efforts) and indirect (gerrymandering of federal and state electoral districts) Republican strategies that have effectively disenfranchised millions of Americans.
In the second of those two columns, I broadened the point. Not only should Democrats refuse to support any infrastructure bill until Trump agrees to provisions that would restore some measure of democracy, but they must make voting rights their sole goal in every negotiation, no matter what Trump needs them to do.
I am still comfortable with that argument, but it is important now to discuss just how difficult it is to turn that idea into an actual negotiating strategy. After all, much of the dirty work that Republicans have done is at the state level. It is difficult to see how something like an infrastructure-for-voting-rights deal could actually be designed, because there might be nothing that Trump could promise to do as president that Democrats really need.
That is not quite true, of course, because congressional Republicans are surely now planning to take their anti-democracy campaign to the national level. Trump could be induced to agree to veto a federal voter suppression bill or a repeal of the Voting Rights Act, the defeat of both of which would be important victories for Democrats.
Still, there has already been so much damage done by Republicans in the last few decades that Democrats need to find ways to undo that damage even as they fight Republicans' efforts to make things worse. Is there anything that the Democrats could get Trump to do to help there?
Trump might not be entirely committed to the Republicans' anti-voting rights efforts. Yes, those efforts guaranteed his 2016 victory, but he might not particularly care about state-level and district-level politics. He will have so many advantages of incumbency going into 2020 that he might not need to worry about keeping Paul Ryan's House majority intact as part of his own reelection effort.
Perversely, if Trump were willing to harm Republicans' ability to rig elections, Democrats might need to count on the autocratic impulses that are so scary about Trump. That is, while presidents like Barack Obama and George H.W. Bush might have been unable to dictate to their national and state parties, Trump might have no compunction about breaking every norm and law to force people to bend to his will.
We are already pretty far down a rabbit hole, but here is where it gets even crazier. Let us imagine that Trump told Democrats that he would give them what they need on voting rights (in whole or in part), and Democrats concluded that this would be a good deal. What then?
The problem is that Trump has shown, not only as a candidate but throughout his life, that he does not respect the terms of any deal that he makes. If he can get away with it, he will screw over his counter-parties every time. Why would he not do this when dealing with the minority party, whose help he will almost never need?
Take, for example, a different quid pro quo that Democrats have been discussing recently. For many Republicans, anti-government extremism includes taking a blood oath never to increase the debt ceiling. Trump will not want to face that possibility (as I will discuss in a column next week), so he will need Democrats' votes to pass a bill to increase the debt limit.
One Democratic senator has reportedly suggested that Democrats condition their agreement to increase the debt ceiling on Trump's agreement to require presidential candidates -- retroactively to the 2016 election -- to release their tax returns. Pretty clever, right? Trump would truly be in a tough spot, needing to give up something important in order to get something even more important.
But as I noted only last week, Trump does not believe in win-win approaches to negotiating (or anything else). He has shown again and again that he only feels victorious when his opponents lose in humiliating fashion. And that is why he does not respect the terms of deals that he makes.
Suppose that Trump tells Democrats that he will sign a bill containing the provisions that they demand. Suppose further that Republican leaders are forced to put those provisions in the same bill that contains the debt ceiling increase, so that Trump cannot sign one bill and veto the other. Is that enough?
A person who is willing to honor his word and who respects the nature of compromise would uphold his part of the deal. Trump, on the other hand, could do one of two things.
First, he might simply refuse after the fact to release his tax returns, while ordering the Treasury Department to prevent the IRS from obeying any requirements in the new law to release those returns. Second, Trump could simply tell Republicans the day after the bill is passed to send another bill to his desk negating the provisions that the Democrats demanded.
Democrats could then complain that Trump did not live up to his side of the bargain. Trump would tweet back: "Dems got played and now are crybabies because I outsmarted them. Sad!" The mainstream press would hammer Trump over this for a few days but soon treat it as old news, with the discussion devolving into how much blame the Democrats deserve for not realizing that Trump would betray them. It is not as if they can claim to be surprised by his dishonesty, right?
As I noted above, Democrats will have very few situations in which Trump might need their votes or cooperation. But if there is any possibility of a future time that Trump would need them, game theory tells us that he should want to maintain some credibility. Once he reveals himself to be untrustworthy, Democrats would supposedly not be fooled again.
But what is their alternative? Suppose that, a few weeks or months after Trump completely plays them on the bill that I described above, Trump then needs the Democrats to vote for an infrastructure bill. Democrats will have reasons to say, "Well, maybe this time ..." True, Democrats would then do everything possible to build guarantees into any deal, but they cannot simply walk away.
In the United States, parties to a contract are generally required to engage in "good faith and fair dealing," not because we think that people will not drive a hard bargain but because even the most hard-fought deals require the confidence that the other side is not hiding something or planning to defeat the purpose of the deal. Opportunism undermines capitalism's need for reliable contracts.
In politics, most deals cannot be enforced by courts, but both parties used to understand that chickens come home to roost. But when Republicans began to nakedly abuse the filibuster, when they blocked Obama's Supreme Court nominee under the flimsiest pretext, and when they violated one political norm after another, the ability to make mutually beneficial political deals slowly came undone.
Trump merely takes this to the next level, not even pretending that he will hesitate to press an advantage. Democrats, when they feel the need to make a deal, will be well advised to impose as many conditions as possible, but ultimately they might not be able to trust any agreement. Even if they get Trump to veto a repeal of the Voting Rights Act, for example, there is nothing stopping the Republicans from passing the same bill again, with Trump saying that he can sign the new bill because he honored his pledge to veto the original one.
All of which means that my advice to Democrats -- put all of your efforts into restoring voting rights -- might be great in theory but impossible to achieve in Trumpworld. Maybe Republicans have already so debased the idea of government for the people that there is no coming back, especially with a shameless opportunist like Trump in the Oval Office. If so, what does that mean?
Even when long-term defeat is inevitable, should Democrats agree to short-term wins? It continues to be true that infrastructure spending would be good for the economy, but Republicans might refuse to fund it. Should Democrats step in to make that good thing happen?
If the ideal outcome -- restoration of something resembling a true constitutional democracy -- is off the table, Democrats might reasonably decide that they should simply go ahead and do what they can for the good of the country. The additional jobs and higher incomes that would result from infrastructure spending would help people (many of whom voted for Trump, but no matter). Is that not what good public servants should be trying to achieve?
The patient might truly be dying, with no hope of recovery. At that point, it becomes important not to worry about things like balanced diets. Why withhold one good thing when there is no hope of getting any other good things that would make the patient even stronger after recovery? Keeping the patient as comfortable as possible as life slips away becomes the humane thing to do.
This is all more than a bit depressing, I confess. Maybe some Republicans will decide to stand up to Trump, and maybe the Democrats will figure out ways to prevent Trump and his party from engaging in fatally opportunistic strategies. If not, however, maybe the right answer is just to make everyone feel as good as possible for as long as possible.
Monday, December 19, 2016
Is Doux Commerce the Upside of Trump's Conflicts of Interest?
by Michael Dorf
In prior essays I joined the chorus of people condemning Donald Trump's woefully inadequate efforts to ensure that his business interests do not interfere with his official duties as president. I first explained that in addition to the obvious problems created by Trump's conflicts of interests, the appearance and perhaps reality of corruption could spread corruption. I then explained how, notwithstanding the personal identification of the Trump brand with Trump himself, Trump could indeed sell his interests in his businesses and put the resulting proceeds in a genuine blind trust, but only if he is willing to forgo what I called the "corruption premium." Trump continues to provide evidence that he nonetheless intends to pocket the corruption premium
Meanwhile, a persuasive new paper by Norman Eisen, Richard Painter, and Laurence Tribe concludes that Trump will be in violation of the Emoluments Clause from the moment he takes the oath of office. I urge readers of this blog who are interested in the Emoluments Clause issue to read it or at the very least the brief executive summary.
What will come of the Emoluments Clause issues? Congress has roughly three options: (1) it could "consent" to Trump's receipt of "present[s]" and "Emolument[s]" from foreign governments, thus, per the terms of the Emoluments Clause, eliminating any constitutional violation (but not addressing the underlying risks of corruption and foreign influence); (2) it could impeach and remove Trump for violating the Emoluments Clause; or (3) it could ignore the problem.
Because I think ignoring the problem is by far the most likely path, I want to focus here on the consequences of Trump's conflicts of interest. I shall indulge a little bit of what passes for glass-half-full optimism these days by asking whether there could be an upside to the fact that Trump will remain keenly aware of his own business interests, even if he does not handle day-to-day operations. According to the doux-commerce thesis (which has been around at least since the 18th century) the sentiments necessary for and activated by participation in a market economy conduce to peaceful relations between individuals and nations. At its core, the idea is that war is bad for business.
Doux commerce is pretty obviously false as a universal claim. Some businesses--e.g., munitions manufacture--benefit from war. Moreover, there are contexts in which a president's business interests will lead him to turn a blind eye to immoral or illegal conduct by governments and private actors. As Kurt Eichenwald reports, that already appears to be happening in various locations, including the Philippines, where Trump-harbinger, Hitler-praising President Rodrigo Duterte's campaign of killing suspected drug dealers without any semblance of due process has earned praise from Trump, perhaps because, as Eichenwald puts it, "[r]ooting out crime in the Philippines is good for the real estate values" and Trump has substantial interests in real estate market in the Philippines.
So no, doux commerce is hardly a panacea. The glass is at most half full.
But half full, indeed, even one-tenth full, is still better than completely empty. The relevant question for the doux-commerce hypothesis as applied to Trump is not Will Trump's business interests pull his foreign policy in a good direction? The question is Will Trump's business interests pull his foreign policy in a better direction than it would head in the absence of those business interests? The answer to that question could be yes.
Consider the Middle East. A few days ago, Trump announced that he plans to nominate David Friedman as ambassador to Israel. Friedman is a bankruptcy lawyer with no diplomatic experience, which is not in itself all that unusual. Presidents of both parties frequently dole out ambassadorships to political allies, although usually they send actual diplomats to hot spots. In any event, Friedman's lack of qualifications are much less troubling than his views, which are about a full standard deviation to the right of those of Bibi Netanyahu.
Perhaps Trump chose Friedman as payback to Orthodox Jews, who were much more likely to support him than were American Jews generally. (According to Pew, a higher percentage of Jews voted for Clinton than did members of any other religious group, although the data lump Muslims in with "other." If broken out separately, I suspect that the data would show that Muslims rejected Trump by a larger percentage than any other religious group.)
It's also possible that Trump chose Friedman because he saw him as a kindred spirit--as a man given to outrageous statements for which he does not apologize, like calling American Jews who support a two-state solution to the Israel/Palestine conflict--which is to say a clear majority of American Jews--worse than kapos, the Jews who assisted Nazis in the death camps.
Whatever Trumpian logic led the president-elect to select Friedman, if he is confirmed and given real power, Friedman is very likely to pursue policies that increase the odds of war, terrorism, and human suffering more broadly. Or, what amounts to the same thing, even if Friedman himself does not call the shots but if his selection reflects the priorities of the Trump administration, that will have terrible consequences. Friedman's support for "annexation" of the West Bank and for moving the U.S. embassy to Jerusalem will severely undercut the already-slim chances for the making of "a deal" between Israel and Palestine, Trump's at least nominally stated aim.
More broadly, Trump's ideological approach to conflicts in the Middle East is to throw fuel on the fire. As I noted previously, his views are incoherent. He simultaneously demonizes Iran even as he wants to work closely with Iran's Russian pro-Assad allies in Syria. The incoherence undoubtedly stems from Trump's unwillingness to acquire the knowledge possessed by even a reasonably well-educated 20-year-old, much less to sit through intelligence briefings. To make matters worse, Trump's basic approach is reflexively aggressive.
To be sure, Trump is not exactly a warmonger. He broke with the neocon wing of the GOP and in some ways ran to the left of Clinton's Scoop-Jackson-inflected muscle flexing. Trump doesn't seem to want to get the U.S. into more foreign wars. It's just that his ignorance, arrogance, and bombast pose a risk of starting them. Likewise, his overheated rhetoric on terrorism will likely produce blowback.
Put simply, if left to do what they think is best, all things considered, Trump and the top people that carry out his administration's foreign policy will very likely do things that are horrible because of their arrogance, ignorance, and (for some but not all of Trump's people) ideology. Thus, it is at least possible that by pulling the Trump administration away from what Trump and his people think they ought to do, Trump's business interests will push U.S. foreign policy towards better (though still not ideal) positions.
To illustrate, let's stick with the Middle East. Despite a few efforts to strike deals with local developers, apparently Trump does not currently have any substantial property interests in Israel, but he does have substantial business interests in other parts of the Middle East. If Trump rationally pursues his own economic interest, he will try to moderate the likes of David Friedman, because war between Arabs and Israelis is bad for the Trump brand throughout the Middle East.
The same point should be true in other regions. Peace is good for business. War, terrorism, and trade wars are bad for business.
I'll end with two caveats. First, by invoking doux commerce, I do not mean to suggest that Trump actually internalizes the cooperative attitudes that, according to Albert Hirschman, commerce induces. I agree with Prof. Buchanan when he writes that Trump does not believe in capitalism, because Trump only understands win/lose, not win/win. However, Trump doesn't need to understand capitalism to respond to economic incentives. Even a minimally rational Trump would understand that war and terrorism are bad for the luxury hotel business.
That brings me to the second caveat: Trump is not necessarily even minimally rational. After all, if he were, how could he have run a blatantly anti-Muslim campaign and designated Mike Flynn as his National Security Advisor despite the latter's notoriously anti-Muslim statements? Wouldn't a minimally rational Trump have realized that these actions would be bad for his brand in majority-Muslim countries?
The short answer is yes. Trump may not be even minimally rational. Accordingly, I conclude that Trump's business interests in other countries have the potential to moderate the terrible course he would otherwise choose if he were guided only by his own policy preferences and those of the people who will surround him, but that they probably won't. At best, the glass has a drop of water in it, but perhaps it is indeed empty. It is Schroedinger's glass.
In prior essays I joined the chorus of people condemning Donald Trump's woefully inadequate efforts to ensure that his business interests do not interfere with his official duties as president. I first explained that in addition to the obvious problems created by Trump's conflicts of interests, the appearance and perhaps reality of corruption could spread corruption. I then explained how, notwithstanding the personal identification of the Trump brand with Trump himself, Trump could indeed sell his interests in his businesses and put the resulting proceeds in a genuine blind trust, but only if he is willing to forgo what I called the "corruption premium." Trump continues to provide evidence that he nonetheless intends to pocket the corruption premium
Meanwhile, a persuasive new paper by Norman Eisen, Richard Painter, and Laurence Tribe concludes that Trump will be in violation of the Emoluments Clause from the moment he takes the oath of office. I urge readers of this blog who are interested in the Emoluments Clause issue to read it or at the very least the brief executive summary.
What will come of the Emoluments Clause issues? Congress has roughly three options: (1) it could "consent" to Trump's receipt of "present[s]" and "Emolument[s]" from foreign governments, thus, per the terms of the Emoluments Clause, eliminating any constitutional violation (but not addressing the underlying risks of corruption and foreign influence); (2) it could impeach and remove Trump for violating the Emoluments Clause; or (3) it could ignore the problem.
Because I think ignoring the problem is by far the most likely path, I want to focus here on the consequences of Trump's conflicts of interest. I shall indulge a little bit of what passes for glass-half-full optimism these days by asking whether there could be an upside to the fact that Trump will remain keenly aware of his own business interests, even if he does not handle day-to-day operations. According to the doux-commerce thesis (which has been around at least since the 18th century) the sentiments necessary for and activated by participation in a market economy conduce to peaceful relations between individuals and nations. At its core, the idea is that war is bad for business.
Doux commerce is pretty obviously false as a universal claim. Some businesses--e.g., munitions manufacture--benefit from war. Moreover, there are contexts in which a president's business interests will lead him to turn a blind eye to immoral or illegal conduct by governments and private actors. As Kurt Eichenwald reports, that already appears to be happening in various locations, including the Philippines, where Trump-harbinger, Hitler-praising President Rodrigo Duterte's campaign of killing suspected drug dealers without any semblance of due process has earned praise from Trump, perhaps because, as Eichenwald puts it, "[r]ooting out crime in the Philippines is good for the real estate values" and Trump has substantial interests in real estate market in the Philippines.
So no, doux commerce is hardly a panacea. The glass is at most half full.
But half full, indeed, even one-tenth full, is still better than completely empty. The relevant question for the doux-commerce hypothesis as applied to Trump is not Will Trump's business interests pull his foreign policy in a good direction? The question is Will Trump's business interests pull his foreign policy in a better direction than it would head in the absence of those business interests? The answer to that question could be yes.
Consider the Middle East. A few days ago, Trump announced that he plans to nominate David Friedman as ambassador to Israel. Friedman is a bankruptcy lawyer with no diplomatic experience, which is not in itself all that unusual. Presidents of both parties frequently dole out ambassadorships to political allies, although usually they send actual diplomats to hot spots. In any event, Friedman's lack of qualifications are much less troubling than his views, which are about a full standard deviation to the right of those of Bibi Netanyahu.
Perhaps Trump chose Friedman as payback to Orthodox Jews, who were much more likely to support him than were American Jews generally. (According to Pew, a higher percentage of Jews voted for Clinton than did members of any other religious group, although the data lump Muslims in with "other." If broken out separately, I suspect that the data would show that Muslims rejected Trump by a larger percentage than any other religious group.)
It's also possible that Trump chose Friedman because he saw him as a kindred spirit--as a man given to outrageous statements for which he does not apologize, like calling American Jews who support a two-state solution to the Israel/Palestine conflict--which is to say a clear majority of American Jews--worse than kapos, the Jews who assisted Nazis in the death camps.
Whatever Trumpian logic led the president-elect to select Friedman, if he is confirmed and given real power, Friedman is very likely to pursue policies that increase the odds of war, terrorism, and human suffering more broadly. Or, what amounts to the same thing, even if Friedman himself does not call the shots but if his selection reflects the priorities of the Trump administration, that will have terrible consequences. Friedman's support for "annexation" of the West Bank and for moving the U.S. embassy to Jerusalem will severely undercut the already-slim chances for the making of "a deal" between Israel and Palestine, Trump's at least nominally stated aim.
More broadly, Trump's ideological approach to conflicts in the Middle East is to throw fuel on the fire. As I noted previously, his views are incoherent. He simultaneously demonizes Iran even as he wants to work closely with Iran's Russian pro-Assad allies in Syria. The incoherence undoubtedly stems from Trump's unwillingness to acquire the knowledge possessed by even a reasonably well-educated 20-year-old, much less to sit through intelligence briefings. To make matters worse, Trump's basic approach is reflexively aggressive.
To be sure, Trump is not exactly a warmonger. He broke with the neocon wing of the GOP and in some ways ran to the left of Clinton's Scoop-Jackson-inflected muscle flexing. Trump doesn't seem to want to get the U.S. into more foreign wars. It's just that his ignorance, arrogance, and bombast pose a risk of starting them. Likewise, his overheated rhetoric on terrorism will likely produce blowback.
Put simply, if left to do what they think is best, all things considered, Trump and the top people that carry out his administration's foreign policy will very likely do things that are horrible because of their arrogance, ignorance, and (for some but not all of Trump's people) ideology. Thus, it is at least possible that by pulling the Trump administration away from what Trump and his people think they ought to do, Trump's business interests will push U.S. foreign policy towards better (though still not ideal) positions.
To illustrate, let's stick with the Middle East. Despite a few efforts to strike deals with local developers, apparently Trump does not currently have any substantial property interests in Israel, but he does have substantial business interests in other parts of the Middle East. If Trump rationally pursues his own economic interest, he will try to moderate the likes of David Friedman, because war between Arabs and Israelis is bad for the Trump brand throughout the Middle East.
The same point should be true in other regions. Peace is good for business. War, terrorism, and trade wars are bad for business.
I'll end with two caveats. First, by invoking doux commerce, I do not mean to suggest that Trump actually internalizes the cooperative attitudes that, according to Albert Hirschman, commerce induces. I agree with Prof. Buchanan when he writes that Trump does not believe in capitalism, because Trump only understands win/lose, not win/win. However, Trump doesn't need to understand capitalism to respond to economic incentives. Even a minimally rational Trump would understand that war and terrorism are bad for the luxury hotel business.
That brings me to the second caveat: Trump is not necessarily even minimally rational. After all, if he were, how could he have run a blatantly anti-Muslim campaign and designated Mike Flynn as his National Security Advisor despite the latter's notoriously anti-Muslim statements? Wouldn't a minimally rational Trump have realized that these actions would be bad for his brand in majority-Muslim countries?
The short answer is yes. Trump may not be even minimally rational. Accordingly, I conclude that Trump's business interests in other countries have the potential to moderate the terrible course he would otherwise choose if he were guided only by his own policy preferences and those of the people who will surround him, but that they probably won't. At best, the glass has a drop of water in it, but perhaps it is indeed empty. It is Schroedinger's glass.
Saturday, December 17, 2016
SCOTUS Term Limits in the Next Congress
By Eric Segall and Guest Blogger Gabe Roth, Executive Director of Fix the Court
News that Ted Cruz is planning on introducing a constitutional amendment on congressional term limits
next month has yet to stoke the interest or imagination of liberals and progressives.
That is unfortunate yet eminently fixable.
Elsewhere in the Senate, Mitch McConnell’s
strategy of not holding confirmation hearings for Merrick Garland paid off, and
Donald Trump, who himself was not the majority leader’s first (or tenth) choice
as the person to pick the next Supreme Court justice (or three), will nominate
a new justice soon.
As long as the nominee is not a personal friend of the President (Ã la Abe Fortas or Harriet Miers),
doesn’t show disdain for the hearings (Bork!), and has no secret drug-using
past (D. Ginsburg), he or she is expected to be confirmed in February or
March and may sit on the court for the next three or four decades.
Think about how much the world has changed in the last 30 or 40
years – and recall that while democracies the world over, along with 49 of our
50 states, set either a term limit, a mandatory retirement age or both in their
courts of last resort, our federal courts system does not.
Thus, the Cruz bill, and a half dozen others like it that are weeks away from introduction, can and
should become a vehicle for term-limiting the officials who need their tenures
reduced even more than members of Congress: the justices of the U.S. Supreme
Court.
Whether high court term limits could be achieved by statute or would require a constitutional amendment is up for debate, but either way, the action should begin in Congress.
Whether high court term limits could be achieved by statute or would require a constitutional amendment is up for debate, but either way, the action should begin in Congress.
Right now, our top jurists are serving for ages with almost no
accountability. Even today, they ban broadcast media from their courtroom and
choose for themselves if a potential conflict of interest disqualifies them
from hearing a case. The eight (or nine) are not required to place information
about their stock transactions, publicly financed travel and outside income
online like elected officials, and they are not compelled to give reasons why
they select the cases they take and reject the rest.
Then there’s unfortunate circumstance of what happens to our
minds as we age: unpredictable, and often sudden, cognitive decline. The
justices are not immune from it just because they wear black robes. In fact, of
the high court justices who retired or died in office in the last 50 years, at
least half were rumored to have experienced some decline in mental ability toward
the end of their tenures. One was even barred from casting the tie-breaking vote in close cases due to
his cognitive diminishment.
This is not how a governmental institution, court or otherwise,
should behave or be staffed. Nor should it be that Donald Trump’s expected
legacy extend by Supreme Court proxy decades beyond his tenure in office. If
his first nominee serves to the same age as Justice John Paul Stevens, he or
she may still be on the bench in 2057!
Liberals and progressives should rally around the idea of
implementing term limits on Supreme Court justices. While the policy is favored
by most of the country overall, conservative support typically outstrips liberal backing by 10 to 20 points. The specter of our new
President nominating a cadre of justices who may collectively serve for 100
years should move liberals, and those who represent them in Washington, toward
greater support – and then toward action.
Legal scholars on the left and right, from Harvard’s Larry Tribe
to the Federalist Society’s Steve Calabresi, agree on this. So do a number of
justices: before he became chief justice, Charles Evan Hughes favored a
mandatory retirement age. The current chief, John Roberts, backed
a 15-year limit for federal judges when
he was serving as a Reagan administration attorney.
The last serious federal proposal aimed at limiting the
justices’ tenure was introduced in 1954, three years after the 22nd Amendment
restricting presidential terms was ratified. While more than 50 members of the
House and a dozen senators – all but one of them Republicans – put their names
on congressional term limits bills in the last few years, including
previous versions of Cruz’s forthcoming bill, the Supreme Court has been
nowhere to be found in those proposals. So far.
Now that we know these efforts will be resuscitated in January,
Democrats should join in the drafting process. For all the reasons noted above,
they should make their support of any term limits bill conditioned on the
inclusion of a clause to end to life tenure at the Supreme Court.
After all, in a democracy, no one person – ever – should be
handed such significant, largely unreviewable power for life.
Friday, December 16, 2016
The First Casualty of Trump
By Michael Dorf
This week, the American Constitution Society posted an open letter from a group of constitutional law scholars (including me) to Donald Trump, cataloguing the ways in which his campaign and post-election statements and announced plans threaten cherished aspects of our constitutional democracy. Although addressed to Trump and nominally urging him to change his ways, it is fair to say that Trump is not the intended audience. As Stanford law professor Pam Karlan, one of the signatories, said: "We are under no illusions that President-elect Trump … is going to bother to read a letter from law professors.” The point of the letter is to influence public opinion and people in positions of power--especially in Congress--to take steps to resist what might be the worst actions of a Trump administration.
Dahlia Lithwick and David Cohen wrote in Wednesday's NY Times that the initial task of resisting Trump has fallen to the likes of law professors because the Democratic Party--the obvious locus of resistance--appears to be AWOL. I'm not sure how fair a characterization that is. Wednesday's Times also carried a story about how Democratic elected state officials are gearing up to resist Trump by filing lawsuits and using state law to patch holes that Trump opens in federal law.
Lithwick and Cohen chide Democratic leaders at the national level for failing to follow the GOP playbook from the 2000 election by throwing whatever crazy arguments at the wall that they can in the hope that one of them sticks, but the comparison is inapt in a crucial respect. In 2000, Republicans were playing defense, because the initial count in Florida had Bush ahead and the Gore campaign was trying to reverse that result. Moreover, the Republicans knew ex ante that they had a decent chance of winning, because the Republican Florida governor was their candidate's brother, the SCOTUS had a majority of Republicans, and a majority of state delegations in the House--where a contested election would be decided--were Republican. With all of this institutional support, the Bush team expected to win. Although their ultimately winning argument in the SCOTUS was new, their ex ante position was strong. Gore took his case to the Florida courts because he thought, correctly, that he had a shot at winning there. Bush took his appeal to the SCOTUS--and would have gone from there to the House--because he thought, correctly, that he could win there.
By contrast, there is very little chance that enough of the GOP electors will heed the call of latter-day Hamiltonians in order to send the election into the House (where Republican delegations would vote for Trump anyway, given fear of primary challenges), much less to elect someone other than Trump. Nor is there any chance that the courts will void the election result. The notion that the national Democrats have brought a bunch of unarmed law professors to a gun fight is true, but only because they don't have any usable knives, much less guns. Put differently, Lithwick and Cohen invoke the stereotype that Democrats don't fight as fiercely as Republicans, but they don't offer any persuasive evidence for it in this case, even though the stereotype does have a basis in fact.
Having said that, I agree with Lithwick and Cohen that the arguments of law professors--as opposed to more substantial power plays by people with real power--are not an especially effective weapon against would-be tyrants like Trump. After all, the right has spent decades trying to delegitimize the authority of experts in general and academics in particular. Thus, the fact that a law professor--or climate scientist--says something is taken by the sorts of people likely to support Trump as evidence that it's wrong.
That fact, however, does not render public engagement by academics pointless. Amicus briefs are a case in point. Even if an amicus brief of mostly liberal law professors won't persuade Justice Thomas or Alito of its point, it can supply an argument that, say, Justice Ginsburg or Kagan can then use in an opinion or a dissent. That, in turn, can transform a merely "academic" idea into part of the law.
More broadly, academic work even in a purely academic setting will sometimes filter into the zeitgeist. The work of John Rawls has been cited exactly zero times by the SCOTUS; yet its impact on moral and political philosophy has undoubtedly been felt in the law in many ways that are difficult to trace.
Still, there is another difficulty that academics face when we seek to engage in public discourse. To the extent that academics have credibility, it comes from our dispassionate position. Rather than taking sides for partisan ends, we claim, we are merely telling it like it is. No doubt this is not a perfectly accurate description of any academic, but I do think that most serious scholars in most fields strive for something like this stance. A scholar with integrity recognizes evidence and arguments that point against her conclusion. She even recognizes when a position she thinks is correct, all things considered, leads to a conclusion she disfavors on policy grounds in particular circumstances.
Yesterday's Verdict column by University of Illinois Law School Dean Vik Amar is a good example of the latter. Amar didn't want Trump to be president (I assume). He doesn't even think that the Electoral College is a good way to pick a president. Yet his best analysis leads him to conclude, as he titles his column, that the "Electors Should Not Make Hillary Clinton (or Anyone Else Besides Donald Trump) President." When politicians will take positions that are manifestly self-serving and even downright mendacious, serious scholars who enter the public arena are fighting with one and a half hands tied behind their backs.
But fight that way we must anyway. If there is any justification for tenure, it is this: Serious scholars need job security to speak the truth, regardless of who finds it discomfiting.
Of course, even job security as against one's own university will not protect a scholar against a cultural revolution aimed at purging intellectuals. And even if a would-be American tyrant respects the decrees of judges enforcing the First Amendment, that will not prevent his brownshirts from intimidating faculty and others for engaging in what the tyrant and his enablers deem politically incorrect speech.
It is tempting to self-censor in response, to keep one's head down. Speaking up takes courage. But as Brandeis wrote about free speech in his Whitney concurrence, "courage [is] the secret of liberty."
In any event, cowardice is self-defeating. As Evan Osnos reminds us in a powerful New Yorker article, whether in Mao's China or elsewhere, autocracy depends on the acquiescence and collaboration of people who would not otherwise support autocrats. If truth is the first casualty of war, the shameless repetition of outrageous lies is a proven technique of autocrats. Everyone has some duty to speak up for truth, but those of us whose very business it is to tell the truth have some special obligation to do so.
This week, the American Constitution Society posted an open letter from a group of constitutional law scholars (including me) to Donald Trump, cataloguing the ways in which his campaign and post-election statements and announced plans threaten cherished aspects of our constitutional democracy. Although addressed to Trump and nominally urging him to change his ways, it is fair to say that Trump is not the intended audience. As Stanford law professor Pam Karlan, one of the signatories, said: "We are under no illusions that President-elect Trump … is going to bother to read a letter from law professors.” The point of the letter is to influence public opinion and people in positions of power--especially in Congress--to take steps to resist what might be the worst actions of a Trump administration.
Dahlia Lithwick and David Cohen wrote in Wednesday's NY Times that the initial task of resisting Trump has fallen to the likes of law professors because the Democratic Party--the obvious locus of resistance--appears to be AWOL. I'm not sure how fair a characterization that is. Wednesday's Times also carried a story about how Democratic elected state officials are gearing up to resist Trump by filing lawsuits and using state law to patch holes that Trump opens in federal law.
Lithwick and Cohen chide Democratic leaders at the national level for failing to follow the GOP playbook from the 2000 election by throwing whatever crazy arguments at the wall that they can in the hope that one of them sticks, but the comparison is inapt in a crucial respect. In 2000, Republicans were playing defense, because the initial count in Florida had Bush ahead and the Gore campaign was trying to reverse that result. Moreover, the Republicans knew ex ante that they had a decent chance of winning, because the Republican Florida governor was their candidate's brother, the SCOTUS had a majority of Republicans, and a majority of state delegations in the House--where a contested election would be decided--were Republican. With all of this institutional support, the Bush team expected to win. Although their ultimately winning argument in the SCOTUS was new, their ex ante position was strong. Gore took his case to the Florida courts because he thought, correctly, that he had a shot at winning there. Bush took his appeal to the SCOTUS--and would have gone from there to the House--because he thought, correctly, that he could win there.
By contrast, there is very little chance that enough of the GOP electors will heed the call of latter-day Hamiltonians in order to send the election into the House (where Republican delegations would vote for Trump anyway, given fear of primary challenges), much less to elect someone other than Trump. Nor is there any chance that the courts will void the election result. The notion that the national Democrats have brought a bunch of unarmed law professors to a gun fight is true, but only because they don't have any usable knives, much less guns. Put differently, Lithwick and Cohen invoke the stereotype that Democrats don't fight as fiercely as Republicans, but they don't offer any persuasive evidence for it in this case, even though the stereotype does have a basis in fact.
Having said that, I agree with Lithwick and Cohen that the arguments of law professors--as opposed to more substantial power plays by people with real power--are not an especially effective weapon against would-be tyrants like Trump. After all, the right has spent decades trying to delegitimize the authority of experts in general and academics in particular. Thus, the fact that a law professor--or climate scientist--says something is taken by the sorts of people likely to support Trump as evidence that it's wrong.
That fact, however, does not render public engagement by academics pointless. Amicus briefs are a case in point. Even if an amicus brief of mostly liberal law professors won't persuade Justice Thomas or Alito of its point, it can supply an argument that, say, Justice Ginsburg or Kagan can then use in an opinion or a dissent. That, in turn, can transform a merely "academic" idea into part of the law.
More broadly, academic work even in a purely academic setting will sometimes filter into the zeitgeist. The work of John Rawls has been cited exactly zero times by the SCOTUS; yet its impact on moral and political philosophy has undoubtedly been felt in the law in many ways that are difficult to trace.
Still, there is another difficulty that academics face when we seek to engage in public discourse. To the extent that academics have credibility, it comes from our dispassionate position. Rather than taking sides for partisan ends, we claim, we are merely telling it like it is. No doubt this is not a perfectly accurate description of any academic, but I do think that most serious scholars in most fields strive for something like this stance. A scholar with integrity recognizes evidence and arguments that point against her conclusion. She even recognizes when a position she thinks is correct, all things considered, leads to a conclusion she disfavors on policy grounds in particular circumstances.
Yesterday's Verdict column by University of Illinois Law School Dean Vik Amar is a good example of the latter. Amar didn't want Trump to be president (I assume). He doesn't even think that the Electoral College is a good way to pick a president. Yet his best analysis leads him to conclude, as he titles his column, that the "Electors Should Not Make Hillary Clinton (or Anyone Else Besides Donald Trump) President." When politicians will take positions that are manifestly self-serving and even downright mendacious, serious scholars who enter the public arena are fighting with one and a half hands tied behind their backs.
But fight that way we must anyway. If there is any justification for tenure, it is this: Serious scholars need job security to speak the truth, regardless of who finds it discomfiting.
Of course, even job security as against one's own university will not protect a scholar against a cultural revolution aimed at purging intellectuals. And even if a would-be American tyrant respects the decrees of judges enforcing the First Amendment, that will not prevent his brownshirts from intimidating faculty and others for engaging in what the tyrant and his enablers deem politically incorrect speech.
It is tempting to self-censor in response, to keep one's head down. Speaking up takes courage. But as Brandeis wrote about free speech in his Whitney concurrence, "courage [is] the secret of liberty."
In any event, cowardice is self-defeating. As Evan Osnos reminds us in a powerful New Yorker article, whether in Mao's China or elsewhere, autocracy depends on the acquiescence and collaboration of people who would not otherwise support autocrats. If truth is the first casualty of war, the shameless repetition of outrageous lies is a proven technique of autocrats. Everyone has some duty to speak up for truth, but those of us whose very business it is to tell the truth have some special obligation to do so.
Subscribe to:
Posts (Atom)
Posts
