Friday, January 20, 2017

An Unsentimental Assessment of Obama's Presidency

by Neil H. Buchanan

I voted for Barack Obama in the 2008 primaries, but I was skeptical.  The rhetoric of hope and change seemed to lack underlying substance, and he appeared to be trying to engage in Clintonian triangulation even as he sweet-talked liberals into thinking that he was not a center-right incrementalist.

On the other hand, Obama was running against Hillary Clinton, whose record up until that point suggested that she was completely comfortable with the center-right policies of her husband and possibly that she would move even further to the right.  (In 2016, I became convinced that she had seen the light and was finally rejecting neoliberalism in a way that must have felt liberating for her.  But I digress.)

Between Obama and Clinton in '08, therefore, it was a tossup on policy substance, except that Obama's possible non-liberalism was less certain than Clinton's.  This made it that much easier for Clinton's hawkishness, and in particular her vote to authorize George W. Bush's invasion of Iraq, to dominate the thinking of progressive voters like me.

Even though my favored candidate ultimately won the presidency, however, I braced myself for disappointment during the transition in late 2008 and early 2009.  And sure enough, the disappointments came early and often.  For example, I criticized Obama for putting a right-wing evangelist in a prominent position during the inaugural festivities, and I noted with resignation how predictable it was that he would pick Wall Street-backed economists to be his top advisors.

By the time the inauguration came along, I was able to find genuine reasons for optimism, but it was far too easy to be even more pessimistic.  And the early years of Obama's presidency played out rather predictably, with Obama being far too timid in almost everything while naively believing that the Republicans were not deliberately ruining his presidency in every way possible.

(I suppose it was inevitable that Eric Cantor, co-author of the Republicans' scorched-earth obstructionism against Obama, would emerge last week to claim that it was all Obama's fault.  If only Obama had given Republicans the chance to cooperate with him, they would have rushed into his arms!)

In the midst of the first debt-ceiling crisis, in the summer of 2011, I faulted Obama's strategy for its transparent weakness: "When the deadline for raising the debt limit finally arrives, [the Republicans] know who will blink."  And so it was.  Despite occasional rhetorical feints to the left over time, Obama would reliably go back to the conventional wisdom (especially as embodied by his first Treasury Secretary, Tim Geithner).

Even so, by early 2012 I was able to write with complete sincerity that "Barack Obama is the Best President of My Lifetime."  As I wrote in that column, my positive assessment of Obama was largely a matter of weak competition.  By "best" I did not mean "consequential" or something like that, a la Time's "Person of the Year" (a designation given at various times to the Ayatollah Khomeini, Adolph Hitler, Donald Trump, and "you").  I meant a president who had pushed for and implemented policies that were actually good for people.

The only president in my lifetime who was arguably more consequential than Obama was Ronald Reagan, but because he is the godfather of the Republicans' current ugly incarnation (race-baiting, militarism, regressive tax policies, union busting, anti-environmentalism, retrograde misogyny), there is no way that I would call Reagan great.  "Able to pursue terrible policies and make some people feel good about it" is not greatness.

Even so, calling Obama great was not merely (or entirely) damnation with faint praise.  As one of the economists who genuinely wondered in 2008 and 2009 whether we were headed for a second Great Depression, I am constantly surprised by people's failure to credit Obama (and, to be fair, Bush's departing economics team in the early stages of the crisis) for preventing the world from going over the precipice.

And it is not as if Obama was doing only the easy things.  He took incredible heat for almost everything he did, including the fiscal stimulus package, the bailout of the banks and other financial institutions, and saving General Motors and Chrysler from liquidation.  Without those moves, and without the steely resolve of (Bush-appointed) Ben Bernanke at the Federal Reserve, the 1930's might have looked like a garden party by comparison.

Each of those policies could be have been designed better, of course.  The inadequate size of the stimulus was probably a matter of Obama's not being bold enough, but it is possible that there was no way to do better given the fecklessness of people like former Senators Ben Nelson and Olympia Snowe as well as still-serving Senator Susan Collins.  Similarly, bailing out huge companies while letting the big players off the hook was bad policy (and worse politics), but no one knows whether a more aggressive posture from Obama could have changed any of that.

It is, in fact, rather astonishing how well the economy has recovered, given how unrelentingly obstructionist the Republicans were after they recaptured the House in the 2010 midterm elections.  Partly because pressure by liberals pushed Obama into appointing Janet Yellen to replace Bernanke, the unemployment rate has dropped by more than half since the worst depths of the Bush recession and has stayed low, and there is at long last evidence over the last year or so of meaningful wage growth for working people.

As I have been reading other writers' assessments of Obama's years in office, however, the focus is typically not on economics.  One criticism that has emerged is that Obama is uniquely to blame for the Democrats' now-weak political position in Congress as well as at the state level.  Surely, Obama must be to blame for that, right?  Right?!

Fortunately, New York Times columnist David Leonhardt (relying on analysis by Ronald Brownstein) recently exposed that claim as a fatuous misunderstanding of history.  In fact, Obama's party's losses have been almost exactly at the historical average, if not a bit better than the average.  For Democrats, it is certainly disappointing that Obama did not preside over a permanent transition to long-term domination while Republicans became more and more dependent on old white voters.  But saying that Obama is uniquely at fault is a difficult case to make, given the data.

Leonhardt was surely responding in part to an op-ed that his newspaper had published two days earlier.  That piece, written by a former member of the Reagan, Bush I, and Bush II Administrations, is a perfect example of the tribalism that besets political types in the U.S.  Even though the author (Peter Wehner) has been a fierce critic of Trump, his trashing of Obama was a classic example of pure partisanship.  The column might as well as been titled: "This Democratic President Was a Democrat!"

Most of that piece (and pieces like it) is not worth ruminating over, but there was one particularly specious argument that is worth mentioning.  Wehner faults Obama because "the economic recovery has been unusually weak, with annual growth never exceeding 3 percent. (Until Mr. Obama, every president since Herbert Hoover had at least one year of 3 percent growth.)"  Other than FDR, no president has seen the economy turn around so completely and dramatically, either, but why let reality get in the way of a good story?

This kind of argument relies on the the obviously false claim that Obama acted without political constraints, most especially omitting any mention of the Republican-led obstruction of Obama's economic policies.  But what makes it an especially odd argument is that it is offered to prove that Obama is at fault for the Democrats' current political woes, with the suggestion that Democrats would have done better if the economic recovery since 2009 had been stronger.

In a trivial sense, of course, that is almost certainly true.  In an election in which a swing of only a total of fifty thousand or so votes in three states would have aligned Hillary Clinton's popular vote victory with a similar-sized victory in the Electoral College, who knows what an extra one-tenth of one percent of GDP growth might have meant?

Still, blaming the 2016 result on the relative weakness of the recovery (no matter whose fault that might be) misses the much bigger explanation.  If analysts across the board have agreed on anything since November 8, it is that the white working class voters who abandoned the Democrats were reacting to a generation-long decline in their economic prospects, not merely to unhappiness with the last few years of economic performance.

Ultimately, that is the "what should have been" story of politics after the 2016 elections.  Ronald Reagan's reactionary policies started us in the wrong direction.  Democrats' embrace of a slightly tempered version of that neoliberal nightmare -- not just during Bill Clinton's presidency but in the continued domination of the party by the Democratic Leadership Council and its progeny -- baked inequality and instability into the economy in a way that finally came home to roost in 2016.

It still makes no sense that these working class white voters would embrace Trump, and it is already obvious that they have been bamboozled.  See, for example, Trump's hiring of multiple Goldman Sachs alumni, his embrace of regressive economic policies, and so on.

Even so, if Obama is to be faulted for his party's current difficulties, it is surely because he failed to break definitively from the Democrats' long-term embrace of Republican-lite economic policies.  He and the Democrats needed a real agenda to break a thirty-plus-year-long cycle of economic stagnation and increasing inequality.

Barack Obama will leave office later today.  Notwithstanding all of the criticisms that I have laid out above, I cannot help but say that he was still a great president.  On non-economic policies, there was good (civil rights, defending reproductive freedom for women) and bad (an inhumane deportation policy, the expansion of drone warfare).  It is a mixed bag, but his overall record is better than we have seen since FDR.

Most importantly, however, I will miss the idea that, no matter how much I questioned his policy decisions at various times, I always trusted that the president was an intelligent, humane person who was trying to do what was right.  No matter Republicans' attempts to caricature him as a weak leader, the world respected him and respected the U.S. more because we elected him.

Obama's immediate predecessor lacked all of those virtues.  The less said about his successor, the better.  The world will be a less safe -- and less optimistic -- place because Barack Obama will no longer be in the Oval Office.

Thursday, January 19, 2017

Why Did Summer Zervos Sue Trump in State Court?

by Michael Dorf

Summer Zervos, onetime contestant on The Apprentice, has sued Donald Trump for defamation based on statements that Trump made calling Zervos a liar after Zervos went public with allegations that Trump had groped her much in the manner of his boasting to Billy Bush in the infamous Access Hollywood recording. The complaint is available here. It is juicy reading.

1) The complaint is clearly aimed not only at the court but at the public, containing details that are not directly relevant to the establishment of Trump's liability for defamation but nonetheless aim to expose negative aspects of his character. For example, Zervos avers that Trump "complained about the price" of the room service club sandwich and fries that he and Zervos shared in the room where Zervos expected to be mentored but, the complaint alleges, she was first groped. Complaining about the price of a sandwich is not at all relevant to the legal issues in the case. However, it does tend to show that despite being very wealthy, Trump is a petty cheapskate.

Another irrelevant detail of the complaint describes Trump's financial advice to Zervos. Here is paragraph 33 of the complaint:
The conversation focused on Ms. Zervos’s mortgage on her home. Ms. Zervos told Mr. Trump that her mortgage was in good standing. Mr. Trump told her to let her mortgage go into default and then tell the bank that they could take back her home. He told her to tell the bank that she would be leaving the keys to her home on the table, and the bank could come pick them up. He said that it was a mini-version of what he does. He was emphatic that Ms. Zervos should not make another payment on her loan.
Again, there's no connection between this exchange and Trump's allegedly defamatory statements. They appear to be in the complaint simply to remind the public that Trump's modus operandi is not to pay his bills and that he doesn't even realize this is dishonorable behavior.

Is it a problem that the complaint contains material that is not, strictly speaking, relevant to the legal claims being alleged? Not really. Good complaint writers--especially in high-profile cases--understand that the complaint has multiple audiences, including the press and the public. So long as the factual allegations of the complaint mostly tell the story that forms the basis for the legal claims, courts will allow some leeway to include additional narrative details.

2) Wait. Can the president be sued? Probably. Nixon v. Fitzgerald held that a president has absolute immunity from civil liability for acts taken in his official capacity, but that immunity does not extend to private conduct before he became president.  Thus, in Clinton v. Jones, the Supreme Court held that there is no temporary (much less permanent) immunity of a president for such conduct. However, Jones was litigated in federal court, thus raising concerns of separation of powers. The majority opinion of Justice Stevens left open the possibility that litigation in state court might give rise to a different result, because such litigation would present issues of federalism and comity. A footnote (number 13) indicated that the Supremacy Clause might also play a role in determining whether the president has immunity to state court civil litigation.

Accordingly, it is open to Trump's lawyers to argue that notwithstanding Clinton v. Jones, the state court lawsuit of Zervos is barred by some as-yet unannounced immunity.

3) That possibility in turn raises the question why Zervos chose to sue in state court where there is at least a chance that Trump could have some immunity as president, rather than suing in federal court where he certainly would lack any such immunity under the rule of Jones. Zervos could have sued in federal court because she is a resident of California while Trump is a resident of New York. However, because she chose not to sue in federal court, the case will remain in state court even if, for some reason, Trump wants the case in federal court. Under the federal removal statute, a case that could have been brought in federal court can be removed to federal court, but not where the basis for federal jurisdiction would be diversity of citizenship and the defendant is sued in his home state, as Trump was. Federal law also allows removal by federal officers sued in state court, but only where the lawsuit is based on the performance of official duties.

Thus, having chosen to sue in state court, Zervos is probably stuck there. If Trump's lawyers succeed in obtaining a new state-court-only immunity based on footnote 13 of Jones, then presumably Zervos can re-file in federal court, assuming that the statute of limitations hasn't run or the initiation of state court litigation is deemed to toll it.

4) Given the seemingly greater risk of proceeding in state court, why did Zervos do it? One possibility is the hope for a friendly jury, although a federal jury in the Southern District of New York would likely have been friendly to a plaintiff suing Trump as well.* The substantive law to be applied in state court is the same as would apply in federal court, so that can't be a reason. Finally, my research into New York law and federal law in the Second Circuit reveals more or less the same standard for what could be the biggest impact of the case: financial disclosure. Zervos has alleged punitive damages. In assessing punitive damages, the defendant's net worth is relevant (because a larger fine is necessary to inflict the same amount of punishment on a wealthier defendant than on a poorer one). Thus, if Zervos succeeds in establishing a right to punitive damages, she could in theory, gain access to Trump's financial records or even his tax returns. However, both New York law and federal law erect a pretty high standard for such access--a requirement that the information not be obtainable from some other source. Thus, I count as pretty low the likelihood that the Zervos lawsuit leads to public disclosure of Trump's tax returns or other substantial details of his finances.

5) Just before the election, I suggested that the alleged Trump gropees might bring a class-action lawsuit against him for defamation and that if so, their claims would be mutually reinforcing. But even proceeding solo, Zervos has a good chance of winning if the case goes to trial. She will likely be a credible witness. Plus, she can call as additional witnesses those people (including her father) whom she told about the groping when it occurred under the hearsay exception that allows prior consistent statements into evidence to rebut a charge of recent fabrication. Although that exception is typically triggered by the suggestion of recent fabrication during cross-examination, it also should apply in a defamation case where the defendant's allegedly defamatory statement consists of stating that the plaintiff recently fabricated her claims about the defendant's past conduct.

* * *

Bottom Line: Unless the lawyers for Zervos know something I don't (which I freely admit is possible), filing in state rather than federal court looks like a strategic blunder, given the risk posed by the opening left in Clinton v. Jones. I do not see any great benefits of proceeding in state court sufficient to overcome that risk. Having said that, the lawsuit also poses very substantial risks for Trump. If Zervos is willing to accept a settlement without admission of liability and with a gag order on the amount, Trump's lawyers would be wise to offer her one. Of course, this could be just the first of a dozen similar suits, so that approach could prove expensive. But hey, no one ever became president in order to make money, right? Oh, right.

* Update: In a Facebook comment, one reader noted that the SDNY and the New York County (i.e., Manhattan) jury pools are not co-extensive. The former comprises Manhattan, the Bronx, Westchester, Putnam, Orange, Rockland, and Sullivan counties. I was aware of that, which is why I said in the original post that the SDNY jury would likely be plaintiff-friendly, even if not necessarily as plaintiff-friendly as the state jury pool. The non-NYC components of the SDNY jury pool are small compared with Manhattan and the Bronx. And Westchester, which is the largest of the non-NYC counties in the SDNY, went 2-1 against Trump.  Thus, to my mind, the small advantage in jury pool doesn't justify the risk of an immunity ruling or even the delay that an effort by Trump to assert an immunity defense could occasion.

Wednesday, January 18, 2017

Religious Freedom and Hard Cases in the 4-4 Court

by Eric Segall
About a month before Justice Scalia passed away last February, the Supreme Court voted to hear an important case raising fundamental questions about the separation (or not) of church and state. The Missouri Constitution prohibits any and all public money going to religious institutions. A church school challenged this categorical exclusion when denied an opportunity to compete for state money to improve the safety of school playgrounds. The lower court upheld the exclusion, which exists in one form or another in many other states. The case is so difficult because, while all the Justices likely agree that state aid cannot go to core religious instruction, and while all the Justices also likely agree that police and fire protection cannot be denied to churches, temples and mosques simply because of their religiosity, this case falls right in the middle of those extremes. 

Although the Court took the case over a year ago, it has yet to schedule oral argument, presumably because the Justices are likely deadlocked on the difficult issues. I fully understand that deadlock. On the one hand, denying all but the most basic public aid to religious institutions feels harsh and discriminatory. In fact, this specific Missouri law enacted towards the end of the 19th century had its origins in anti-Catholic prejudice.

On the other hand, defenders of the Missouri law, and others like it, argue that allowing churches, temples and mosques to compete for public money against each other, and against non-religious institutions, could cause significant religious strife leading to potential violations of the First Amendment's Establishment Clause or its stricter parallel state constitutional provision. In addition, these statutes have a long history and for those concerned about the role of tradition in constitutional interpretation, the invalidation of such laws would amount to overly aggressive judicial review. The most relevant Supreme Court precedent, Locke v Davey, upheld a similar program in which the State of Washington prohibited generally available scholarship money to be awarded to students studying to be ministers. Yet, not using public money for the education of religious officials feels much different than the categorical exclusion of all religious institutions from any but the most needed public aid.

So this case is truly hard, and I express no opinion about its proper outcome. My purpose in writing this blog post is to suggest that the country as a whole is better off with the Court not deciding the case at all, which would likely be the result if the Court were to stay evenly divided among partisan lines.

Had the case been decided while Justice Scalia was still alive, there is every reason to think the Court would have struck down the law 5-4 (assuming Justice Kennedy would have voted that way). Had Merrick Garland been confirmed, the smart money would have been on the Court upholding the law. Now, with Trump getting the next pick, the odds are the Court will strike the law down if the case is not moot (there is talk Missouri may not enforce this law anymore). In other words, who is the ninth Justice likely makes all the difference in this case.

Leaving aside one's view on how the controversy should be resolved, is the country better off with the case being decided 5-4 in one direction or the other or better off with the potentially different rules in different circuits where court of appeals judges will also likely divide on this difficult question? My argument is that this case is so close and the need for uniformity so weak, that there is much to gain by recognizing that the Justices should not make national policy on these type of hard issues by a 5-4 vote along partisan lines.

People may prefer one result or another in this case but few would argue the result is obvious from text, history or precedent. How each Justice, or lower court judge, votes would likely depend more on their own personal views on the proper relationship between church and state than legal analysis. That being the case, isn't it fair to ask why we need a national rule preempting state decisions on this difficult matter? If Missouri wants to adhere to strict separation of church and state while other states do not want that separation, the justification for federal intervention seems small. Of course, court of appeals judges may decide to strike down such laws but at least those judges are regional decision-makers not national decision-makers, and they are generally much more versed in local law, values, and context than the Justices who spend their entire working lives in the nation's Capitol.

If the Court intervenes in these kinds of cases by a 5-3 vote, which on the present Court would mean by definition a non-partisan vote, that result seems just a bit less incongruous. For that to occur, at least one Republican would have to vote with the Democrats or vice-versa, which suggests the decision isn't completely partisan. Moreover, 5-4 decisions along partisan lines are much more vulnerable to critique and later overruling than decisions where one or more Justices apparently abandons his partisan principles to reach a favored result.

Of course many folks would likely argue that this analysis applies equally to issues like same-sex marriage, free speech, and abortion where five-to-four majorities have displaced state and federal decisions even though the governing law is much less than crystal clear, My response is exactly right. National policy on fundamental questions that divide us a country and which are not resolved by clear constitutional text or paradigm cases should not be made by a bare majority of unelected, life-tenured judges unless there is a need for uniformity for uniformity's sake. But those cases are rare.

Whether one is liberal, conservative, or somewhere in between, we are all better off if the power to strike down state and federal laws is dispersed among hundreds of lower court judges who are geographically and politically much more diverse than our nine national Justices. If a national rule is desperately needed, the Justices, through compromise and bipatisanship, will find a away. If not, we should insist on more than a one-person majority before important political decisions are reversed by our highest legal tribunal.

Tuesday, January 17, 2017

A Possible Contradiction in Liberals' Concerns About Corruption?

by Neil H. Buchanan

Which is it?  Do rich people respond to incentives to get richer, or do they reach the point where enough is enough and other goals take precedence?  Does it matter?

I raised this issue briefly at the beginning of my most recent column, referring to Trump's cabinet of billionaires.  In defense of Senate Republicans' efforts to rush through confirmation votes without carrying out the legally required vetting for conflicts of interest, the Trump team's response is that these people could not possibly be subject to any temptation to abuse their positions.  They're rich already!

My purpose in that column was to point out a number of Republican hypocrisies, with my final point being that conservatives love to say that people should be held personally responsible for their actions and that "feelings" are irrelevant -- unless and until it is convenient for Republicans to say the opposite.  The point about rich people's satiation was merely the first step along the way to making that broader point.

Here, however, I want to explore on its own merits the question of whether financial incentives are still relevant to the super-rich.  As I noted, Paul Krugman had responded to Trump's argument by pointing out that it is completely inconsistent with Republicans' core belief that tax cuts for the rich are the key to economic nirvana.  They cannot have it both ways, Krugman (and I) said.

Even though the Republican position on Trump's cabinet nominees truly is in tension with their views on tax incentives, it is possible that the liberal positions are symmetrically hypocritical.  After all, one could respond to Krugman: "Well, you're also opportunistically contradicting yourself.  You oppose tax cuts for the rich but worry about corruption by Trump's appointees.  It's still a contradiction."

As plausible and evenhanded as that sounds, however, it in fact turns out that the liberal positions on those two issues are not in conflict.  In order to understand why, we have to dive a bit into some economics and psychology.

One of the most well established empirical findings in economics is that the estate tax does not have negative impacts on people's incentives to accumulate wealth.  Although Republicans love to complain about how the estate tax forces hard-working families to break up and sell the family farm or small business, there is still not a single example of that happening anywhere.

This finding is inconvenient for Republicans, because they view it as such a powerful political message.  Even if no family farms or businesses are being broken up, however, there is still the question of whether people change their behavior in response to the estate tax.

Conservatives certainly want to believe that they do, because it fits so neatly into their simple world view in which everyone responds to incentives in the same way.  If a person knows that the estate tax will reduce the amount of money that she will pass onto her heirs, then the conservative presumption is that she will not bother to build up her estate.

This basic conviction -- that if you tax something you will discourage people from doing it -- is baked into conservative economic beliefs.  One high-profile conservative economist once told me that he was fully aware of the empirical failure to find a disincentive effect of the estate tax, but he then said, "I just don't believe it.  There simply must be a negative effect."  If reality and theory are in conflict, so much for reality.

Of course, there are perfectly standard explanations for why rich people do not respond to the estate tax in the way that conservatives hypothesize.  One is that they are simply using the size of their estate to keep personal score of their success, so that they continue to build up their estates even though they know that some of it will not reach their heirs.

Another possible reason is that people might be trying to reach a particular goal, a dollar amount for an estate that the decedent-to-be views as large enough to fulfill her obligations to her family.  If that is true, then an increase in the estate tax would encourage a wealthy person to work harder, not to back off.  (Some readers might recognize this as the "income effect" dominating the "substitution effect.")

And because the aggregate finding is that the estate tax neither encourages nor discourages wealthy people in their pursuit of more riches, the most likely explanation is that some people respond in one direction while other people respond in the other direction, with the net result being a wash.

This also seems to happen with taxes in other areas.  For example, even though conservatives want to believe that the income tax is bad because it supposedly discourages people from earning income, there is a robust body of literature showing that the typical income earner does not respond to tax changes.  (The exception is that so-called secondary earners in households do seem to stay home when taxes go up.  However, fewer and fewer families have primary and secondary earners, with both spouses' incomes being necessary to maintain their lifestyle.)

Over time, more and more economists have come to accept the fact that the usual Republican line against taxes is simply not passing the reality test.  Neither high-end tax cuts (whether to the estate tax or to the income taxes that wealthy people pay) nor across-the-board tax cuts have the desired effect of encouraging a burst of entrepreneurship.  One result of that reality is that the Laffer Curve is very much dead.

The bottom line on all of this economic research is that the conservative case for tax cuts, especially regressive cuts (that is, those aimed at the rich), falls apart.  Tax cuts do not lead to increases in potential output (a supply-side effect), and they do not lead to increases in revenues.  (See especially Kansas's recent experiences.)

That is not to say that tax cuts of some types cannot be justified for other reasons.  For example, in the face of a recession, a package of tax cuts aimed at lower- and middle-income earners is likely to have a good demand-side impact, because such earners are likely to spend their tax cuts on necessities and pump up the economy.  (Direct spending by government is even more effective, but usually a combination of spending and progressive tax cuts will make a lot of sense.)

Where does this leave us with respect to the other side of the potential contradiction?  That is, if liberals follow the economic evidence and conclude that rich people as a group do not respond to tax cuts to amp up their supposedly virtuous activities (the proverbial "job creators" idea), must we also accept the idea that rich people are uncorruptible?

The problem with that conclusion is that liberals would never say (and have no reason to say) that there are no rich people who are insatiable.  When setting economic policy through the tax code, what matters is the aggregate effect, taking everyone into account.  When looking at a potential public servant, however, what matters is whether that individual rich person will abuse his power.

Many wealthy individuals who serve in government really do seem not to be in it for the money.  Outgoing Secretary of State (and former U.S. Senator) John Kerry is wealthy beyond imagination (both on his own and through his wife's stake in the Heinz fortune), yet there is no indication that he has tried to use government service to enrich himself.

Similarly, although I disagree with Mitt Romney on many issues and did not support him in the 2012 presidential election, his high net worth seems to be enough to satisfy him.  In the past, wealthy men from both political parties (Teddy and Franklin Delano Roosevelt, the Kennedys, Nelson Rockefeller) showed no signs of trying to raid the public piggy bank or to use their positions to enhance their wealth even indirectly.

So far, so good.  The problem is that the potential is always there.  Every public official has the power to take actions that would make them or their associates richer, so much so that before Trump came along it was standard operating procedure for everyone to support anti-corruption laws, including conflict-of-interest provisions, in vetting government appointees.  Indeed, the Republicans insisted on this when President Obama's nominees came up for confirmation.

In short, there is no contradiction between the liberal positions on taxes and corruption.  It is fully consistent to say that even though tax cuts for the rich do not encourage more wealth-producing activity, some wealthy people might nonetheless abuse their government posts to further enrich themselves at the expense of the American people.

It is a measure of how abnormal things have become that there are people now claiming that we should simply trust rich people to do the right thing.

Monday, January 16, 2017

Does it Matter Whether Trump is a "Legitimate" President?

by Michael Dorf

In explaining his intention to absent himself from Trump's inauguration civil rights hero and Congressman John Lewis said that he did not regard Trump as a legitimate president. That statement inspired a typically childish and mendacious Twitter response from Trump. As noted in the story just linked, there is some debate among those who oppose Trump over whether his impending presidency will be illegitimate or merely despicable, with David Axelrod disagreeing with Lewis on the legitimacy question.

I don't have a strong view about this question, which strikes me as mostly a semantic debate about the meaning of the word "legitimate," rather than a substantive debate about anything that matters. We agree about the facts that, depending on one's definition, could call into question Trump's legitimacy: that he received 3 million fewer votes than Clinton; that he ran a campaign appealing to people's basest instincts; that he benefited from voter suppression efforts made more effective by the Supreme Court's gutting of the Voting Rights Act; that he benefited from highly questionable interventions by the FBI and the Russian government; and that it is possible, though not yet proven, that some people working in his campaign may have colluded with the Russian government. Any of these facts alone or in combination could call into question the legitimacy of Trump's election, if one defines a legitimate president as one who was chosen by the American people based on a free and fair election.

If the debate over the word legitimacy is semantic, there is nonetheless a genuine substantive disagreement about how to treat Trumpism. I can illustrate by reference to the nascent boycott of LL Bean over the support by one Bean board member--Linda Bean--for Trump and Trump's confusing her with the company as a whole. The company has tried to remain apolitical, emphasizing that its leadership, management, and employees hold a wide range of political views. That in turn has led some people who oppose Trump to oppose the boycott as poorly targeted. Why punish a more or less virtuous company that treats its workers well and supports American manufacturing based on the views of one of its board members?

A counter-argument (as expressed thoughtfully by a friend of mine on Facebook) goes like this: If one of the ten members of the LL Bean Board were a klansman, surely that would be a basis for boycotting the company (so long as the klansman remained on the board), and support for Trump should be treated as just as socially unacceptable as membership in the KKK.

I want to sidestep any discussion of whether Trump support actually is morally equivalent to support for the Klan. That's just an analogy. My friend's point was that a strategy of delegitimation needs to resist the tendency--inherent in Bean chairman Shawn Gorman's response to the controversy--to treat support for Trump as just like any other political opinion.

LL Bean is admittedly in a tough spot. Even if some members of its leadership team think that Trumpism should be deemed outside the bounds of acceptability, the fact that 46% of voters pulled the lever for Trump shows that Trumpism is not currently regarded that way. A company that aims to sell general-purpose merchandise cannot risk alienating 46% of the population.

Thus, if you think boycotting LL Bean unfairly punishes its workers or suppliers, don't boycott. If you think boycotting has no logical stopping point because just about every major company has some leaders with distasteful views or practices, don't boycott. And if you think that boycotting LL Bean would be ineffective in delegitimating Trump because it would be regarded by much of the general public--including many who do not support Trump--as an overreaction, then don't boycott.

However, I don't think it is an especially good use of time and energy to oppose the boycott of LL Bean either. Even if, like Axelrod, you think that Trump is a legitimate president under your definition of legitimacy, surely there are more pressing matters than arguing with those who, like Lewis, think otherwise. Likewise, there are more pressing matters than arguing about whether it's necessary to delegitimate Trump or merely to oppose him forcefully.

Put differently, statements to the effect that Trump lacks legitimacy and efforts to delegitimate Trump are inevitable, given the unruliness of social and political movements. Such efforts are also largely complementary with more narrow resistance to Trump on particulars. Both broad and narrow opposition to Trump, where successful, will undermine Trump's already historically low popularity. The less popular Trump is, the more emboldened politicians--especially Republican politicians--will become in standing up to him and frustrating his most awful ambitions.

Let's agree to disagree about whether Trump is merely horrible or illegitimate and about whether we merely need to oppose him or to delegitimate him. In general, there is a tendency of left-leaning movements to debate small internal differences while neglecting the real enemy. That tendency is self-indulgent at all times but completely unaffordable now.

Thursday, January 12, 2017

Personal Responsibility and the 2016 Election

by Neil H. Buchanan

Donald Trump has now made clear that he has no intention of eliminating his conflicts of interest -- saying, in essence, that he is keen to cash in on the "corruption premium."  Meanwhile, the rush by Senate Republicans to confirm Trump's cabinet nominees without adequate vetting continues on its shameless path.

Trump's apologists have come up with an amazing defense of this spectacle, which is that people like Trump and his cabinet of billionaires are too rich to be corrupt.  As Paul Krugman recently pointed out, this argument is completely at odds with the usual conservative line about how rich people think, amounting in fact to a repudiation of the logic of trickle-down economics.

Think back to any argument that you have heard against progressive taxation, whether it be higher taxes on business profits, taxes on large concentrations of wealth (especially the estate tax), or even the notion of having an income tax at all.  The core conservative retort is that we must not "kill the goose that lays the golden eggs."

That is, if we reduce the take-home rewards that rich people reap from engaging in their wealth-producing activities, they will supposedly stop producing wealth.  But if rich people apparently still pursue monetary rewards, why would they not pursue such rewards when given enormous political power without any effective ethical limits?

The hypocrisy is rank, and it has me once again thinking about other categories of hypocrisy that flow so readily from the right side of the aisle in American politics.  A few months ago, for example, in "Conservative Word Police," I described conservatives who deride liberals for so-called political correctness yet who are positively obsessed with policing people's word choices.  (Somehow, I failed to mention in that column conservatives' response to "black lives matter" -- "What, you're saying that only black lives matter?!")

Another form of hypocrisy has also recently made its way back into the political conversation.  In a recent op-ed in The New York Times, "Why Rural America Voted for Trump,"a liberal journalist from Iowa argued that rural Americans are mostly conservative Christians and that conservative Christians do not believe in weak-kneed liberal nonsense about root causes and all that.

The op-ed quoted former Republican congressman J.C. Watts, an Oklahoman who is now a born-again Baptist minister, who said in a political speech in Iowa in 2015: "The difference between Republicans and Democrats is that Republicans believe people are fundamentally bad, while Democrats see people as fundamentally good."

As the son of a Presbyterian minister, I did not quite see how these obviously caricatured views of human nature mapped onto political opinions.  Watts seemed to be saying that Democrats are either atheists or not true Christians, while Republicans and Christians are one and the same.

That is obviously wrong along a number of dimensions, but I soon understood the real point when Watts brought it home: "Democrats believe that we are born good, that we create God, not that he created us.  If we are our own God, as the Democrats say, then we need to look at something else to blame when things go wrong — not us."

And there it is, in all its illogical glory, the religious gloss on the personal responsibility meme.  Democrats supposedly get it wrong when they refuse to see that people are to blame for their own problems.  (They are apparently also wrong to think that rich people are corruptible by money.   Even though everyone is fundamentally bad, apparently some people are above reproach -- and not just those who have been born again.)

Helping the poor, according to this view, does not allow them to find their way to a better life.  It merely wastes the money of the good people.  Paul Ryan's embrace of dependency theory thus finds support from something other than Ayn Rand's novels.  Of course, the lack of empirical support for the predictions of dependency theory need not be acknowledged by Republicans like Watts or Ryan, because they simply know what is true.

More importantly for the current political moment, this theory has interesting implications for the claim that the key voters who gave Trump his victory need to be understood rather than criticized.

By now it has become the conventional wisdom among a large group of commentators on both the left and the right that Hillary Clinton's Electoral College loss in 2016 was a result of Democrats' failure to take the concerns of the white working class seriously enough.  This is the whole "identity politics" smear, in which we learn once again that all too many people are willing to say that a concern for civil and economic rights of marginalized people is a mere indulgence that Real Americans will not abide.

The implication of that theory is that liberals need to try to understand why people would vote against their own interests by voting for Trump.  The idea is apparently that good people can make bad decisions, so it is important not to say that these voters are racists (or racist-tolerant) or are in other ways blameworthy for being illogical or uninformed.

This argument came up in a slightly new form earlier this week when conservatives (and some liberals) criticized Meryl Streep's comments at the Golden Globe Awards show.  After pointing out how Trump and many conservatives revile artists, Streep talked about the importance of the arts to society, saying that without them there would be nothing left to entertain us but football and mixed martial arts.

The reactions were predictable and absurd.  I happened to be in an airport during one of CNN's painful panel discussions, so I could not change the channel.  There was a long discussion of a claim by John McCain's daughter (and Fox News contributor) Meghan McCain, who claimed that "[t]his Meryl Streep speech is why Trump won."

Although the younger McCain was rightly mocked for the odd time-traveling aspect of her assertion, let us give her the benefit of the doubt and say that she was calling out Hollywood liberals in general for being too willing to denigrate things that white working-class voters like.  Those voters simply feel disrespected, apparently, and this is meant to justify why they would vote for Trump.

Of course, if that is the point, then Streep's speech is a particularly bad example of the genre.  She was describing how important it is to have a full range of entertainment available, and the people with whom she works are particularly vulnerable to cultural crackdowns by bullies who dislike being confronted with differing views.  She did not say that football and martial arts are bad.  She said that a world where only those two forms of entertainment are available would be a rather empty world.  As a football fan, I agree.

Throughout the post-election discussion about the sensibilities of white working-class voters, I have been more than willing to say that it is important to reach the reachable Trump voters.  This includes respecting the idea that, contra Watts, people are not born good or bad or with certain political views, but rather that people with real economic insecurity can start to act in ways that they would not otherwise act.

That, in fact, is the common thread of all of the emerging proto- (and not so proto-) fascist movements around the world.  Scared people are willing to embrace extreme measures and to elevate extremist leaders who would otherwise find no audience.

What bothers me about that conversation, however, is that it tends to remove all agency -- free will, for lack of a better term -- from these voters' thoughts and actions.  In its extreme form, in fact, this argument brings to mind the complaint from conservatives about how liberals have coddled children into believing that they are all special.  Giving everyone awards for participation, and not keeping score at soccer games so that no one feels like a loser, is supposedly a big liberal plot to make us all weak.

I happen to find that argument unpersuasive (or at least wildly overblown), but there is more than a hint of just that kind of condescension in the post-election attempts to "understand" working-class voters.  Such voters were supposedly feeling disdained by Democrats, so they acted on those feelings by voting for Trump, who promised to throw out immigrants and bring back factory jobs.  Who can blame them for being willing to stick their collective thumbs in the eye of the dreaded establishment?  They were wrong, but at least they tried.

The problem is that it did not require any particular expertise, or even paying especially close attention to the news, to see that Trump is a con man.  He continually denied having said things that he had said.  His record of cheating his own workers and contractors was well known.  He was never going to drain the swamp.  He is a New York City billionaire (maybe) who opportunistically changed his views to win the biggest prize he could find.

As a matter of political strategy, I can see why Democrats do not want to say any of that.  Because I am not a Democratic strategist, however, I will not willfully avoid noticing this rather uncomfortable implication of the effort to exculpate people's bad decisions.

After all, when a working-class white voter decided to vote for Trump, he was not actually being selfish.  I would actually have been ecstatic if those voters had pursued their own self-interest.  But because they did not, they (along with many other people) will soon have lower incomes, worse health care, dirtier air, more extreme weather, a greater likelihood of living (and possibly dying) in a nation at war, and on and on.

And this is all because people like Meryl Streep supposedly have disdain for working people?

The reliance on "feelings" as a defense is certainly popular.  Just this week, Trump's nominee for Attorney General responded to accusations of being a racist by saying that it hurt him deeply to be called such a thing.  It is an awfully convenient distraction, and it works because ultimately Republicans want to have it both ways, attacking Democrats for not being hard enough on people but then wanting sympathy and understanding when it suits them.

To be clear, I continue to be very concerned about the economic stagnation that has made so many people receptive to the demagoguery of bigots.  Even so, there is still a responsibility to respond to personal fears and uncertainty in a productive way.  Saying, "I'm mad, so screw the system!" might feel good in the moment, but it is a profoundly harmful reaction.

Trump's Wall Echoes the Venetian Ghèto

by Michael Dorf

During the presidential election campaign, criticism of Donald Trump's proposal to build a wall at the southern border and make Mexico pay for it took various forms. These included: skepticism about the cost; doubts about efficacy (given the possibility of going over the wall via ladders and ropes, under it via tunnels, etc); and doubts about the ability of Trump to require Mexico to pay, especially after Trump's meeting with Mexican President Peña Nieto, when the latter announced that he flatly told Trump that Mexico would not pay for the wall.

The last question--about payment--was revived recently when Trump sought funding for the wall from Congress. When critics objected that this was contrary to his campaign rhetoric, Trump took to Twitter (of course) to explain that Congress would, in effect, be providing mere bridge funding until Mexico reimburses the U.S.

That tweet in turn restarted the debate about how Trump would extract billions of dollars from an unwilling Mexico to fund his wall. Would he impose tariffs on Mexican goods? Higher tolls on border bridges? Taxes on remittances? Such ideas are discussed in a recent article in the Kushner-owned official state newspaper of the country formerly known as the United States, perhaps soon to become known as TrumpmenistanThe Observer/Pravda story bore the Trump-friendly headline "Yes, Donald Trump Can Make Mexico Pay for the Wall."

I am willing to stipulate that Trump (with the aid of Congress) can make Mexico pay for the wall, but the question of how to get Mexico to pay for the wall tends to crowd out a different, perhaps more basic question, that seems to go largely unasked in discussions of the financing of Trump's wall: Why? Even if one assumes that building a border wall is sound policy, why should Mexico have to pay for it?

One answer might be because the U.S. can get away with forcing Mexico to pay. But that answer, standing alone, doesn't survive inspection, because there's no reason to limit it to funding a wall. Why not tax remittances of undocumented (and documented?) Mexican immigrants at a high enough rate to pay for other Trump priorities, like infrastructure projects in the interior of the country or, after the GOP Congress rejects such projects, tax cuts for the super-wealthy? If the U.S. can get away with forcing Mexico to pay for U.S. spending projects, why stop there? Why not make China, Canada, and other countries pay too?

The notion that Mexico should pay for the wall appeals to a different, or at least supplemental, sort of logic beyond might makes right: Mexico should pay for the wall because the wall is needed to address a problem that is Mexico's fault. In this logic, because Mexico is sending crime, drugs, and rapists, Mexico should fund the construction of the wall to keep out the bad actors.

Although I freely admit that the following analogy is not perfect and could be seen as explosive, because I recently read Paul Johnson's magisterial 1987 book A History of the Jews, in thinking about the Trumpian logic of making Mexico pay for the wall, I was reminded of Johnson's description of the first European ghetto, in Venice. (The word ghetto derives from ghèto, a term of uncertain etymological origin for the selected area.)

Johnson writes that the immediate motive for ghettoization was the influx into Venice of over 5,000 Jewish refugees, many of whom had been expelled from Spain and Portugal, and the sermons of friars demonizing both the new arrivals and the longstanding Venetian Jewish community. Confining Jews to the ghetto was seen as a somewhat milder remedy than expulsion from Venice. The authorities then turned to practical concerns. As Johnson writes:
The spot chosen was . . . formed into an island by canals, equipped with high walls, all windows facing outward bricked up, and two gates set up manned by four Christian watchmen; six other watchmen were to man two patrol boats, and all ten were to be paid for by the Jewish community, which was also instructed to take out a perpetual lease of the property at one-third above the going rate. (p. 235)
Not only did Venice build four walls and make the Jews pay for them; the Venetians turned a profit in the bargain! Perhaps Trump can learn a thing or two.

To be clear, in invoking this comparison I do not mean to say that Trump's wall aims to make a ghetto of Mexico, but I do want to note a couple of disturbing points of contact between the Venetian ghetto walls built almost exactly 500 years ago and the wall that Trump proposes to build in our time.

First, is the lying. Of course Trump lies about so many subjects that this is too easy a point of comparison, so I should be clear that I just don't mean lying in general but the nature of the lies. Trump's various campaign statements about undocumented immigrants and crime coming across the southern border earned four pinnochios from the Washington Post. His focus on illegal immigration ignores the fact that the population of undocumented immigrants in the United States has been stable, not increasing, for the better part of a decade. Meanwhile, although of course some undocumented immigrants commit crimes--as do some other immigrants, tourists, and citizens--substantial evidence indicates that undocumented immigrants are less likely to commit crimes than the baseline population. Their addition to the population thus lowers rather than raises crime rates. Trump's incendiary and dishonest rhetoric that launched and sustained his campaign served something of the same function for his most ardent anti-immigrant supporters as blood libels served for the medieval anti-semites whose agitations led to the ghetto.

Second, is the idea of collective responsibility. Even in his original "they're bringing drugs" speech, Trump repeatedly elided any distinction between what the people escaping Mexico were bringing to the United States and whom and what Mexico was supposedly sending to the United States. He did so even though he went on in that speech to state that the problems were not coming only from Mexico but from "all over South and Latin America, and . . . probably from the Middle East." Nonetheless, Trump did not propose that the countries from which undocumented immigrants originate each pay their pro rata share of the cost of building and maintaining the wall. Mexico must foot the whole bill. One has the sense that for Trump, everyone coming over the border is in some sense being "sent" by Mexico. Just as the Venetian authorities left for the Jews of Venice to sort out how to collect the money to be handed over, one imagines Trump leaving to Mexico the task of proceeding by way of indemnification against other countries from which undocumented immigrants originate. No doubt he considers them all sufficiently similar others such that a tax on any is a tax on all.

Notions of collective responsibility appear elsewhere in Trump's ugliest rhetoric, especially in his discussion of Muslims. There was, of course, his call to kill the family members of terrorists, regardless of any complicity. And, spreading collective responsibility community-wide Trump twice asserted--after the San Bernardino shootings and after the Orlando nightclub attack--that the American Muslim community as a whole was responsible for such acts for supposedly choosing not to prevent them. In the latter instance, he said of the people likely to perpetrate terrorist acts, "Muslims know who they are, largely. They know who they are. They have to turn them in. They know who they are. They see them." That statement combined a group libel with the imputation of collective responsibility.

To return to the puzzle with which I began--Why should Mexico pay for the wall?--we see that the logic of Trump's implicit answer resonates with his most despicable views and political instincts. Preposterous as it was when considered as a policy proposal, Trump's plan for a southern border wall always made a kind of deranged sense as the psychological centerpiece of his campaign.

Wednesday, January 11, 2017

The Life of an Animal

by Sherry F. Colb

In my column for this week, I discuss the case of Brown v. Battle Creek Police Department, in which the Sixth Circuit affirmed a grant of summary judgment for the defendants in a suit brought under federal civil rights law.  The plaintiffs in the case sued individual police, the city, and the police department after police killed the plaintiffs' two dogs while carrying out a search of the plaintiffs' home pursuant to a warrant.  The main claim was that the police violated the Fourth Amendment right against unreasonable seizures by shooting the two family dogs to death.  In the column, I suggest that the plaintiffs should have prevailed and that the Sixth Circuit was wrong to affirm the grant of summary judgment to the defendants.  The life of a dog, even according to the Court of Appeals, is worth more than a piece of furniture, yet the court did not demand very much of the police as a precondition to their decision to kill the dogs.

In the course of discussing Brown, I note that many of the same people who would share my outrage at the police officers' decisions that led up to their killing the two dogs routinely participate in the torture and slaughter of sentient animals--animals who have as much capacity to feel pain, to enjoy life, and to experience emotions as a dog--by consuming products like meat, dairy, and eggs.  Let me emphasize here that the two positions held by people in this (very large) camp are completely inconsistent.  On the one hand, they fault police for killing dogs when there are other alternatives that could equally serve the objective at issue, here to protect the safety of the police officers.  On the other hand, they permit themselves to consume the products of animal harm and killing--typically more than once a day--when there are other alternatives that could equally serve the objective at issue, namely, to nourish oneself with delicious, nutritious, and filling food.  Because judging others (here, the police) is involved, this inconsistency amounts to hypocrisy.  (Though I am not sure of the derivation of the word "hypocrite," I would guess that it has something to do with being less than adequately--hypo--critical, by being critical of others while sparing oneself the same critique).

Would I prefer that such people be fine with police shooting of household dogs during searches because then their positions would be consistent?  No, of course not.  The expression "hypocrisy is the homage that vice pays to virtue" applies here.  If someone couldn't care less when a nonhuman animal is unnecessarily killed, whether by police officers or in response to demand by animal-product consumers, then there is little potential there, little to work with.  Being critical of the police means that the person's moral intuition tells her that it is wrong to kill an animal if there is a less restrictive alternative method for meeting the same need (assuming that it truly is a need, which--in the case of police protecting their own safety and in the case of consumers feeding themselves--it is).  Once a person acknowledges the moral intuition that unnecessarily killing an animal (that is, failing to employ an available less restrictive alternative means of meeting a need) is wrong, then that person is in a position to interrogate her own behavior and examine whether it is in keeping with her own values.  This is not an easy thing to do, of course, because people prefer to do things the way they're used to doing them, but it is a worthwhile endeavor, and a news story--like the story of police shooting two family dogs during a search--can usefully trigger the raw materials for that endeavor.  It was experiences like this that helped lead me to become vegan.  I deplored cruelty to animals, and when it was pointed out to me that I was paying people to be cruel to animals, I came to realize that my behavior did not match up with my own sense of right and wrong.

What makes cruelty to dogs an important "teachable moment" is that close to half of the households in the U.S. have a dog, so people are familiar enough with dogs to understand that dogs have feelings and thoughts and can suffer in many of the same ways that human beings can suffer.  People have direct access to dog sentience in a way that they lack such access to the sentience of cows, chickens, pigs, and fishes, along with the other animals whose flesh and bodily secretions make their way to most Americans' plates.  This could be why people sign petitions condemning the consumption of dogs in other countries while happily consuming other animals (and their secretions, obtained with the same or worse cruelty as flesh) themselves.  It could also explain people's outrage at dog-fighting. It is also true that people are not invested in viewing dogs as food or as "fair game" for the infliction of pain and slaughter in the way that they are invested in viewing cows, chickens, pigs, and fishes in this way.  Take the "otherness" of farmed animals coupled with the investment in seeing them as "suitable for slaughter," and you have the ingredients for resistance to the notion that it could be wrong to eat the muscle tissue or hormonal output of a hen or a calf.

Resistance is a powerful thing.  Resistance motivates people to come up with all sorts of ways of distinguishing between the behavior that they condemn and the behavior in which they regularly engage. Such arguments as "dogs were not bred for slaughter but pigs were" are weak and unimpressive but feel very convincing to someone who wants to believe that what they are doing and what they believe are not in fact in conflict (even when they actually are).  The fact that someone was brought into existence for an immoral purpose (taking their lives away while they are young and hurting them terribly before that point) does not do anything to magically make that purpose moral. Imagine if someone told you that he was selling his son into the sex trade but that it was okay to do that because the only reason he and his wife decided to conceive their son in the first place was for the purpose of creating a sex slave for them to sell.  That hardly redeems their behavior.  (For more arguments people make to defend the consumption of animal products, along with responses to the arguments, check out Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans).

So I am glad that there are people who find police killings of dogs morally troubling, both because I share their view on this subject and because they thereby reveal their commitment to a moral principle that ultimately commits them to ethical veganism (even if they do not realize it or believe it just yet).  My hope is that more and more people who care about dogs will come to realize this truth if people point it out often enough.