Monday, December 05, 2016

Legal Realist Originalism?

By Eric Segall

Earlier this year, Professor Will Baude of the University of Chicago published an essay in the Columbia Law Review titled "Is Originalism Our Law?". He argued that landmark Supreme Court cases such as Home Bldg. & Loan Ass'n v. Blaisdell, Brown v. Board of Education, and Obergefell v. Hodges, which virtually the entire world views as examples of either living constitutionalism, or the pluralistic/common law descriptive theories of David Strauss and Mike Dorf, are actually originalist as written

          Baude argues that these and other important Supreme Court decisions recognized that the constitutional provisions at issue were meant by the ratifiers and/or framers of those provisions to evolve over time.  By recognizing that history, the Supreme Court acts in an originalist fashion even when it interprets those provisions in specific and modern ways that would have shocked the ratifiers and framers of those provisions (such as finding that the Equal Protection Clause means that gays and lesbians have the right to marry on equal terms as heterosexuals).

In essence, Baude argues that, as long as the Court uses a mode of interpretation that the people alive in 1787 would have recognized as legitimate, the Court is using what he calls “inclusive originalism.” He claims that those folks understood that “fixed texts can harness what seem to be changing meanings. Though the text may have originally been expected to apply in a particular way to a particular circumstance, that does not mean that its original meaning always must apply in the same way.” Thus, according to Baude,  “originalists can sensibly apply legal texts to circumstances unforeseeable at the time of enactment,” and come up with results that defy the original expectations of the people who drafted and ratified those provisions.

On Friday, the Cornell Law Review On Line published my response to these arguments (there has also been a short back and forth in the Green Bag between Baude with Stephen E. Sachs and Judge Posner and myself on the same issues). The thrust of my reply is that Baude's descriptive account of constitutional law is accurate but labeling that account “originalist” is obviously misleading if originalism as a term of art is to carry any weight separate from living constitutionalist or pluralistic theories of constitutional interpretation. After all, as both Judge Posner and I have shown, both Brown and Obergefell emphatically and explicitly rejected using originalist methods of constitutional interpretation. Because both Professors Baude and Sachs are outstanding scholars who have contributed to constitutional discourse in substantial ways, I think a fair question to ask is why they are making, in Jack Balkin’s words, “off the wall” legal arguments. 

It appears that Baude and Sachs (and many others) are trying to hold on to the idea that the originalism label can explain and justify much of what the Supreme Court has done and should do in the future. And, of course, they are not alone.  It has been ten years since Professor Fleming asked whether “we are all originalists now,” and only six years since Justice Kagan answered “yes.” Even President-elect Trump, who of course knows nothing about the Supreme Court or constitutional law, has promised to nominate originalist judges. And, is there any doubt that a Supreme Court nominee who explicitly rejected the originalist label in her confirmation hearings would be rejected by the current Senate?

But just like the man who loudly and proudly proclaims that he “loves all women” probably doesn’t love any one woman, folks who claim that “we are all originalists now” aren’t really originalists. After all, what Judge Bork, Raul Berger, and Lino Graglia, the original originalists, actually argued was that judges needed to be tied to original meaning so that their judicial discretion would be limited. A judge who is allowed under “inclusive originalism” to apply new constitutional meanings to modern problems solely because most constitutional cases involve abstract constitutional provisions is deciding cases exactly like the liberals on the Warren Court did or in ways that non-originalists like Dorf and Strauss think are appropriate. To claim that those liberal judges and scholars are actually originalists in disguise is to make a claim that Bork, Graglia and Berger (not to mention Scalia and Thomas) would strongly deny. 

           Of course, Baude's and Sach's arguments aren't necessarily wrong just because their "originalism" is different from, or shall I say has evolved from, Bork's and Berger's originalism. But to the extent that their label applies and describes accurately the work of Justice Brennan and Professor Strauss, it is certainly mystifying.

So what is the point of this entire enterprise? Are Baude and Sachs (not to mention self-proclaimed New Originalists such as Ilya Somin and Steve Calabresi who also defended the result in Obergefell on an originalist basis) trying to turn constitutional law upside down (maybe like the critical legal scholars of the 1980's)? 

I don’t think so. My tentative theory is that this obsession with the originalist label, as opposed its substance, derives from a reluctance to accept the legal realist critique of the Supreme Court that the Justices' decisions are about values, not methodology, all the way down. If Baude, Sachs, Somin, and Calabresi were to come out and say something like "the Justices should decide cases using their modern values and sensibilities because that is what the framers wanted them to do, and we will now call that "Modern Values Jurisprudence," these scholars would be advocating something perilously close to the legal realist critique. But these scholars, to the best of my knowledge, don't want to be associated with that academic school. Nevertheless, expect someone soon, maybe other New Originalists like Jack Balkin (author of the book "Living Originalism") or Randy Barnett (author of the article "An Originalism for Non-Originalists"), to write an article or book labeled "Legal Realist Originalism." I will not celebrate that day.

When scholars debate and argue Supreme Court decisions, methodological arguments and labels get in the way of clear understandings. When the Justices use those same methodological arguments to mask the value choices they are really making, governmental transparency suffers. As Erwin Chemerinsky argued long ago, ultimately constitutional law decisions by the Supreme Court should be written and then defended on the basis of the "value choices the Court [has] made. There is [simply] nothing else."

Friday, December 02, 2016

Animals, Robots, and the Religious Right: A Response to Two Reviews

By Michael Dorf

I

A recent article by Nathan Heller in The New Yorker asks whether arguments for animal rights have implications for the rights of robots. In the course of getting there, Heller first discusses the excellent new book by ethologist Jonathan Balcombe, What a Fish Knows, and then discusses Beating Hearts: Abortion and Animal Rights, by Prof. Colb and me. Heller likes both books. He calls ours "a worthwhile new book", for which I'm quite grateful. He also correctly reports the core of our argument, which I don't take for granted (more about that in Part II, below).

Nonetheless, I disagree with what appear to be Heller's theoretical and practical conclusions: respectively, that moral intuitions are an unreliable basis for moral judgment and that humans have no moral obligation to refrain from exploiting animals for food, so long as the animals are treated humanely. (I say "appear" because Heller's style is discursive, speculative, and somewhat detached, making it difficult to tell when he is merely reporting the views of others and when he is stating anything like a firm conviction.) En route to his conclusions, Heller also accuses Balcombe as well as Colb and me of anthropomorphizing animals. After tackling the anthropomorphism claim, I'll explain what I think is wrong with Heller's conclusions.

Anthropomorphism

Heller has many nice things to say about What a Fish Knows but also says that the "book is peppered with weird, anthropomorphizing anecdotes about people sharing special moments with their googly-eyed friends." What makes the anecdotes weird or instances of anthropomorphism Heller does not say, even as he concedes Balcombe's core point: "If we count fish as our cognitive peers, they ought to be included in our circle of moral duty."

Likewise, Heller accuses Colb and me of anthropomorphizing. He invokes Thomas Nagel's terrific 1974 essay What is it Like to be a Bat? for the proposition that we humans can never really know what it's like to be members of another species. I like the Nagel essay, but it is not chiefly about animal versus human experience. It is mostly about the inadequacy of existing approaches to the mind-body problem. Nagel expressly avers that bats and other complex non-human animals are conscious, that it indeed feels like something to be a bat. He goes on to say, however, that some elements of bat subjectivity--especially echolocation--are beyond our capacity to understand subjectively. We can describe the physical phenomenon of echolocation, but that doesn't tell us what it is like to be a being who uses echolocation. And that, Nagel argues, shows that there is a gap between understanding a physical phenomenon in an objective sense and understanding how that phenomenon gives rise to subjective experiences.

None of this really has anything to do with Heller's claims about anthropomorphism. Nagel doesn't say that we can't imagine what it's like to have any of the experiences that bats have. We can well imagine what it's like for a bat to experience pain or cold, for example, because these are feelings that we experience as well. Nagel chooses to focus on perceptions and experiences where bats and humans differ because it advances his point about the mind/body problem, but he makes no claim that sympathetic imagination across the species line is completely impossible with respect to all manner of experiences.

In any event, even if that were Nagel's claim, so what? Nagel is a philosopher, not a biologist. He has no special competence in understanding what might make subjectivity different across the species line. Balcombe, however, has devoted his career to understanding the behavior of other species and what might give rise to that behavior. He sees more similarities than differences or, conceding as much as plausibly can be conceded to Heller, Balcombe sees differences of degree rather than kind between, on one hand, human consciousness and human experiences, and, on the other hand, the consciousness and experiences of other animals.

Where does the burden of proof lie? People who accuse Balcombe or Colb and me of anthropomorphism begin with the assumption that humans are unique and that therefore when we observe behavior in other species that, were it to occur in humans, we would attribute to various motives with which we are familiar--love, altruism, curiosity, etc.--we are mistakenly attributing human characteristics to other animals.

But why should we assume human uniqueness? Is Heller a creationist? If we are to be guided by science, we should surely expect that animals that evolved from common ancestors as humans and that have similar or homologous brain structures and neurochemical pathways, would also have roughly similar subjectivity. Put differently, Occam's razor suggests that animal behavior that looks like human behavior should presumptively be treated as reflecting roughly similar internal experiences, unless and until proven otherwise. Heller needs, but does not provide, a justification for anthropocentrizing.

Moral Intuitions, Moral Realism, and Virtue Ethics

Heller's tendency to see anthropomorphism also leads him to question the utility of moral intuitions as the basis for moral judgments. Some of his examples undoubtedly have force. He points to circumstances in which clearly non-sentient robots elicit feelings of empathy from people who see them acting in ways that in some ways resemble the actions of sentient humans or other animals. From these genuine examples of anthropomorphism, Heller draws a too-sweeping conclusion, however.

As I have written elsewhere, questions about animal rights and the possibility of robot sentience do have implications for one another. But the right way to think about those questions is to ask what really matters. A computer that passes the Turing test or a robot that elicits feelings of empathy in us does not qualify for moral concern in virtue of either fact--except insofar as the Turing test or our empathy are reliable markers of computer or robot sentience.

Why? Not because of unexamined moral intuitions, but because, after reflection, we have good reason to think that sentience is both a necessary and a sufficient condition for interests, and thus for rights. A robot that is merely programmed to fool us into thinking it is a being with its own subjectivity does not have interests. It is something, not someone. By contrast, a sentient robot would indeed be entitled to moral consideration. The fact that our brains can be tricked into inferring sentience when there is no ghost in the machine does not imply that our moral intuitions lack validity even when there is a ghost in the machine or in the animal.

To be sure, some people think that moral intuitions are not reliable indicators of morality. Some of those people are moral skeptics, that is, they doubt that moral propositions have truth value in the way that empirical propositions do. To a moral skeptic, propositions like "slavery is wrong," "torturing children for sport is wrong," and "killing animals for food when there are plentiful and delicious non-animal foods available is wrong" cannot be true because morality itself is an illusion, at most a matter of preference.

I do not read Heller to be endorsing moral skepticism, because his essay treats morality as a real subject. To the extent that he is offering a view about meta-ethics at all, then, he is a moral realist, albeit one who thinks that moral intuitions are unreliable.

But Heller leaps from the unreliability of our unexamined moral intuitions and his misplaced concern about anthropomorphism to the conclusion that we cannot know what animals want or even what would be good for them. Instead, he thinks that the obligations we owe to animals are rooted in concern for the sorts of beings we want to be. Although Heller doesn't name his moral philosophy, it appears to be a form of virtue ethics, which focuses on the character of the actor rather than the rightness or wrongness of the act or its consequences.

For example, Heller says: "Give salmon a chance to outsmart the net in the open ocean, instead of living an aquacultural-chattel life. We cannot be sure whether the chickens and the fish will care, but for us, the humans, these standards are key to avoiding tyrannical behavior."

Yet what makes it tyrannical for humans to confine, immiserate, and slaughter fishes, chickens, and cows but not at all tyrannical for humans to cultivate, harvest, and consume rice, beans, and bananas, is the fact that fishes, chickens, and cows experience their lives--they are someones--in a way that (so far as we can tell) plants and trees that grow rice, beans, and bananas do not--the plants and trees are somethings. Plants and trees are impressive living things, to be sure, but not they are not (again, so far as we can tell) beings who experience the world from their own subjective perspective.

In Beating Hearts, Colb and I suggest that virtue ethics makes most sense if it leans on some external account of value. With respect to virtuous treatment of animals, that external account is the value that animal lives have because animals are sentient. Heller thinks that we can and should act virtuously towards animals without taking a position on their consciousness and sentience--which he dismissively calls "abstract qualities."

I suppose I am glad that Heller reaches even the imperfect bottom line that he does. If someone is skeptical of animal consciousness, I'd rather he nonetheless conclude that humans owe animals at least some moral consideration rather than treating them as Descartes did, that is to say, as no more entitled to moral consideration than inanimate objects. But I confess that despite having read Heller's essay several times, I do not know why he thinks he can bracket animal sentience and still conclude that we owe animals moral consideration. If animals are not sentient or if their sentience differs so much from our own that it does not harm them for us to treat them as we do, then why does such treatment display a lack of virtue? Heller does not begin to answer this question.

Fortunately, there is no need to bracket animal sentience, because the evidence for it is overwhelming, as Balcombe shows in What a Fish Knows and his other books. And as Colb and I argue in Beating Hearts, that animal sentience has important moral implications.


II

Although I've disagreed here with Heller, I acknowledge that his essay is thoughtful, which is more than can be said for a review of Beating Hearts that appears on the website of the Witherspoon Institute. The review is by Ave Maria law professor Ligia De Jesus Castaldi. It consists mostly of her calling various of our views "extreme" or "radical" without providing any indication of the arguments we offer for our views, much less reasoned refutations of those arguments. Responding to Castaldi's charges would require reproducing much of the book, so I will simply urge interested readers to consult the book. However, Castaldi does not merely dismiss our views as radical. She also repeatedly misstates our views. Indeed, in some instances, we set forth the exact opposite of the views she critiques. Castaldi is, to put it mildly, not the most careful reader. I'll give six examples.

(1) Castaldi says that our endorsement of sentience as a sufficient condition for moral consideration "seems to be particularly inspired" by Peter Singer’s utilitarianism even though we say throughout the book that we are substantially closer to deontology. Our argument that sentience grounds a right to live, not just to avoid suffering, rests on a rejection of utilitarianism generally and of Singer's views in particular.

(2) Castaldi seems not to grasp the distinction between law and morality. For instance, she writes:
A logical application of their [i.e., our] own theory would lead to the conclusion that abortion of sentient fetuses would be morally illegitimate unless “necessary,” which would make many (if not all) such abortions morally unacceptable. Yet the authors deliberately avoid that conclusion.
What?! We draw exactly the conclusion that Castaldi says we avoid: that many (not all) post-sentience abortions are morally unacceptable. We go on to say, however, that it doesn't follow that the law should ban such morally unacceptable abortions because not all moral duties should be legal duties.

(3) Here's another illustration of Castaldi's confusion about law and morality. She writes that we "do not provide any legal justification for sentience as a legal standard." Castaldi thinks this is a criticism, but she is badly mistaken. As we say repeatedly, we are mostly offering moral arguments to guide individual behavior. Where we think that our moral arguments should also result in changes in the law, we say so. One can offer a wholly moral justification--and thus "not provide any legal justification"--for a change in the law.

(4) Castaldi writes that we "reject fetal pain laws . . . even though they could actually provide support for their own case in favor of sentience." This is yet another gross error. At page 86 and again at pages 114-15, we say that the existence of laws that ban abortion of pain-capable fetuses shows that either legislators, their constituents, or both believe that sentience creates an entitlement to life, not merely to avoid further pain. It's true that we "reject fetal pain laws" in the sense that we don't favor them (because we distinguish moral and legal obligations), but false that we disregard them as a source of "support for [our] own case in favor of sentience."

(5) Castaldi says that we "deplore the sentimentality of Justice Kennedy’s majority opinion in the Gonzales v. Carhart Supreme Court decision that upheld a ban on partial-birth abortion, and criticize the inclusion of detailed descriptions of the procedure’s violence and resulting fetal suffering in sentient fetuses,” which is plainly ridiculous, as we use Kennedy’s opinion in Carhart at the very beginning of chapter 1 to illustrate what we say is the strength of the pro-life position with respect to sentient fetuses. Here's the flavor of what we say, from page 15: "Only a psychopath can read" Justice Kennedy's "description" of a partial-birth abortion "without viscerally reacting with sympathy for the fetus." Did Castaldi read a different book?

(6) Castaldi says that we propose in our book "that the government should provide aid to needy animals in the form of healthcare and other benefits," which is absurd. We say (on page 40) the exact opposite. We do pose the question why it is justifiable for humans to provide healthcare and other benefits to humans but not to non-human animals. Our answer turns on the act/omission distinction.

I wouldn't expect a pro-life scholar who has no special sympathy for animals to like our book, but Castaldi does not merely express disagreement with various points we actually make. She grossly mischaracterizes the book. What might account for Castaldi's breathtakingly inaccurate description of the book? I don't really know. Prior to my having received a link to Castaldi's review from a friend, I was not familiar with her and so I can only speculate about some possibilities.

(1) Prof. Colb and I are terrible writers who failed to make our ideas clear.

I suppose this is possible, but other people, including those who hold normative views similar to Castaldi's, seemed to understand the book and to disagree with our actual views, not with some fantasy version of those views.

(2) Castaldi didn't read our book.

I entertained this idea briefly. Castaldi refers at one point in her review to "a lecture on the book" by Prof. Colb. It's not obvious what Castaldi is referring to, but perhaps she attended the bioethics seminar at Princeton a few weeks ago (which I previewed here and which Prof. Colb discussed in her Verdict column last week). Although Ave Maria Law School is in Florida, the Witherspoon Institute is in Princeton. I suppose that Castaldi could have been in the audience and then could have written her review on the basis of what she heard, not what is in the book. However, this hypothesis strikes me as quite implausible. Much of what Castaldi writes refers (albeit in a very distorted way) to material in the book that was not discussed at the Princeton seminar.

(3) Castaldi has a disability that impairs her reading comprehension.

In favor of this hypothesis is the fact that English is not Castaldi's first language. Overwhelmingly against it are the facts that her substantively dreadful review is well written, that she has a Harvard LLM, that she has published numerous articles in English, and that she is a professor at an ABA-accredited law school.

(4) Castaldi read and understood our book but deliberately chose to mischaracterize it.

As I said, prior to a few days ago, I had not encountered Castaldi or her work, and therefore I have no reason to accuse her of bad faith. Moreover, making obvious misstatements about the contents of a book is not a very effective means of critique, especially because there's plenty of material that is actually in our book that Castaldi could have chosen to critique from her normative viewpoint. There was no need for her to make stuff up. Mischaracterizing our views only serves to discredit Castaldi and undermine the legitimate criticisms she might have offered instead.

(5) Castaldi is working from a "natural law" perspective.

Both the Witherspoon Institute and Ave Maria Law School promote natural law--the idea that there is a higher law that infuses positive law. Because many of Castaldi's mischaracterizations of our book rest on her misunderstanding the difference between moral and legal arguments, it is possible that she simply doesn't recognize the difference. Yet surely someone who believes in natural law must be aware that most American legal scholars do not share that belief. And in any event, some of Castaldi's biggest whoppers (such as 5 and 6 in the prior list) have nothing to do with the distinction between law and morality. They're simply errors.

(6) Castaldi is so blinded by her anti-abortion ideology that she cannot follow basic logic or recognize where we say things with which she agrees.

This is my working hypothesis, partly because it is the most charitable reading of Castaldi's review that I can muster but also because it makes sense of her otherwise preposterous and error-ridden review as an instance of the psychological phenomenon of projection: She inaccurately accuses us of being blinded by "abortion rights dogma," which is the mirror image of her own too-real affliction.

Thursday, December 01, 2016

Reaching the Reachable Trump Voters

[Note to readers: My new Verdict column was published today.  Rather than following my usual practice of writing a Dorf on Law post that extends the arguments in my Verdict column, I have decided to write today's post on a different topic.  Even so, I do hope that readers will take a look at that other piece.]


by Neil H. Buchanan

The big post-election consensus among pundits is that they failed to understand the anger in the states that tipped oh-so-slightly for Donald Trump.  Supposedly, these now-self-flagellating cultural elites were so busy looking down their noses at "real Americans" that they completely missed the story on the ground.

My day job is as an economist and a law professor, so I am not sure whether I count as a pundit.  But if I am to be included among that group, I certainly plead not guilty to the charge of contributing to any supposed misunderstanding of middle class Americans, as I will discuss below.

More importantly, these self-described liberal elites who are now proclaiming their culpability are not making things better for the Americans whom they think they have ignored for so long.  They are merely contributing to a new, condescending narrative that validates the idea that Republicans represent regular people, when nothing could be further from the truth.

There are, unfortunately, plenty of people who voted for Trump who do feel disrespected.  In response to my columns, I occasionally receive correspondence from readers.  Some of the negative responses are filled with bile and raging hatred, but a large number are written by people who want me to understand that they supported Trump for defensible reasons.

In the weeks since the election, the central message from that second group of readers has been simple: "I didn't do this because I'm a racist, and it hurts and alienates people like me to be called bigots."  Granted, some of those messages then veer into complaints about lazy welfare cheats, or the claim that President Obama is a "street fighter," or similar comments suggesting that some of these readers are actually quite comfortable with the Republicans' longstanding use of dog-whistle bigotry to foment resentment.

Still, I can say with absolute sincerity and conviction that I do not believe that the typical Trump voter is a bigot.  A year and a half ago, I characterized an apostate conservative's defense of conservatism as the argument that "one can be a good conservative without being a gay-baiting, racist, immigrant-bashing neanderthal."  That he even needed to offer that defense (though not in those words) was an indication of what was obviously wrong with the conservative movement.  But he was sincere.

In a followup column, I then distinguished between the false populists in the Republican Party who were exploiting people's insecurities for political gain and the people with genuine concerns who continued to vote Republican.  I concluded: "I would not call any of my conservative friends, family members, or colleagues neanderthals, and not just to be polite."

The most important reason for my conclusion is that "intent matters."  And again, I continue to believe that a huge swath of Trump voters do not intend to be bigoted or to support bigoted policies.

Although intent matters, however, it does not erase the essential related question: No matter how bad things are, how were so many voters able to compartmentalize the racism, misogyny, xenophobia, and so on that spewed from the mouth of the person who won their support?  I know that many Trump voters claim that they never took Trump seriously when he said those things, but that suggests a certain level of denial that itself cries out for an explanation.

In short, it is certainly possible to believe that any given Trump voter is not motivated by racism and is not in fact a bigot.  But if those voters want the rest of us to understand their inherent goodness, it is at least necessary to understand why that inherent goodness was not repulsed by the actual content of Trump's speeches and rallies.

The short answer to that question, of course, is economic insecurity.  I, along with many other commentators, have been writing for years about the political dangers that arise when an economy is weak and people feel that they have no hope.  Lashing out at others is still morally problematic -- and millions of economically vulnerable people did not vote for Trump -- but it is certainly predictable.

As Michael McQuarrie recently wrote in Newsweek: "Trump is president because of a regional revolt.  ... White people generally didn’t deliver the White House to Trump, however much they enabled him; the Rust Belt did."  This lends credence to the idea that it is not bigotry but economic fear that led to Trump's eye-of-the-needle Electoral College victory.

But here is where the argument becomes tangled.  When Thomas Frank published What's the Matter With Kansas? in 2004, he identified a conundrum that liberals had been wrestling with for decades.  Democrats were the party that favored policies that would be good for working people, while Republicans actively undermined wages, job safety, public schools, and on an on.  Why did "heartland" voters think of Republicans as they saviors?

The dismissive answer from the right was that Democrats did not understand that people are not merely economic automatons, that dollars and sense do not matter as much as "values."  These voters were willing, according to this argument, to accept bad pay and dangerous working conditions as a necessary price to pay to make abortion illegal, to hold back gay rights, and so on.

The complaint from the right could thus be described as saying that liberals do not understand that middle-class Republican voters are engaged in what we now call "identity politics."  That is why it is especially rich for right-wingers like New York Times columnist Ross Douthat -- whose entire political view is driven by his religious identity -- to jump on the new vogue idea that it is liberals who are too engaged in identity politics.

So, we are told both that Democrats cannot expect people to vote on the basis of economics because they care more about social issues, but Democrats are wrong to focus on social issues that matter to millions of voters.  But when people vote for an openly bigoted candidate, it is not because they are bigoted but because they are economically vulnerable.

Perhaps, however, the big issue is the much-ballyhooed "condescension" that some Trump voters say bothers them.  Supposedly, coastal elites (including professors like me) have sneered at Real Americans one too many times, and our comeuppance finally arrived.

Again, I cannot speak for anyone but myself, but the times that I have said negative things about voting for Trump or other Republicans, I have been saying that I do not understand why those voters think that Trump or his party is going to do them any good at all.  Saying, "Don't you see that they are the ones who do Wall Street's bidding, who keep your wages down and medical care too expensive?" is not condescension.  It is simple disagreement and a desire to change minds.

People might not like to be told that they are wrong, but that is part of what politics is about.  "Don't vote for those guys, vote for us, because it will be better for you."

As I sit here sipping my soy latte, however, I wonder whether the complaint is that people like me are simply socially disconnected from swing voters.  Sure, I grew up in Ohio in a middle-class town where two-thirds of my public school classmates did not go to college.  Yes, my father was a Presbyterian minister and my mother the choir director.  True, I am an overly devoted Big 10 football fan who prefers beer to wine and Bruce Springsteen to Beethoven.

But maybe I am still not American enough to really get it.

It is true that people like me do not talk to unemployed workers every day, although we do support the labor organizations that continue to fight like crazy to get working people a fairer deal.  But if the complaint is that working class voters in the upper Midwest do not feel connected to people like me, how in the world do they feel connected to Republicans?

It would be condescending to say that these voters are easy marks for panderers, but Republicans certainly seem to think that they are.  The first President Bush infamously tried to reject his Connecticut Yankee roots by claiming to love pork rinds while mocking his opponent Michael Dukakis for being part of the Harvard Boutique.  (That Bush went to Yale, and that his son went to both Yale and Harvard before becoming president, was a minor detail.)

And Trump?  Raised rich, inherited a huge fortune, his failing businesses bailed out by his father.  He decided that the rules never applied to him -- not in business (just try collecting on a contract from him), and certainly not when dealing with women.  He is the opposite of a working-class hero, and it was obvious that he was never going to carry through on the pro-worker promises that he tossed around so freely.  Everything that we have seen since November 8 only proves that.

When people like me ask non-bigoted Trump voters, "What were you thinking?" it is not because we do not understand their economic pain.  We sympathize with their worries about shorter life expectancy, as well as the challenges facing all of the towns very much like the place where I grew up.  And it is certainly not because of any disdain for regular Americans.

It is because I wonder how it is possible for someone to feel economic insecurity but vote for the candidate and the party that are committed to preventing working people's lives from getting better -- the same candidate and party who are the true elitists and who are using people's economic insecurities to seize power.

My faith in political discussion in a democracy is based entirely on the idea that working people are not easy marks, that they should not be disdained, and that everyone deserves a better deal than they have been getting ever since Ronald Reagan was elected in 1980.

I am glad that political commentators are trying to understand why Trump was able to assemble razor-thin majorities in Pennsylvania, Michigan, and Wisconsin.  Economic policy matters, and Republicans have perversely been able to reap the benefits of the voter unrest that the Republicans' own misguided policy views have unleashed.

Democrats are not going to do themselves any good by rejecting their commitment to social progress.  They can only continue to try to advance economic progress as well, and to connect with voters who are hurting.  Democrats have always had the more popular policies.  Now they need to find a way to make their vision resonate with voters.

Wednesday, November 30, 2016

Why Won't Trump Forgo the "Corruption Premium"?

by Michael Dorf

In my latest Verdict column, I distinguish three risks that arise out of President-elect Trump's extensive business holdings: (1) That Trump will pursue his private interest at the expense of the public interest by, say, altering foreign policy or regulatory policy in exchange for favorable business deals from foreign governments or private actors, respectively; (2) that Trump and his family members will unjustly enrich themselves; and (3) that even the extensive appearance of corruption will spread corruption, which is a corrosive force. I argue that (1) and (3) are the bigger problems, not because I don't think Trump will use the power of the presidency to enrich himself and his family, but because I think the scale of damage from (2) is relatively small--at most a few tens of billions of dollars unjustly flowing into the Trump pockets. (I know, a billion here and a billion there and pretty soon we're talking about real money. I'm making a relative point.)

Trump has faced considerable criticism for failing to follow the practice of other wealthy elected officials who put their assets into a blind trust, thereby ensuring that they would make policy decisions based on the public interest. During the campaign and since the election, Trump and his spokespeople have said that he would turn over the running of his businesses to his adult children and that lawyers would look out to avoid conflicts of interest.

But this is far from an adequate solution. Even assuming that Trump himself plays no role in the running of his businesses--a heroic assumption given reports that he has continued to pursue his business interests since the election--Trump will know what sorts of policy decisions favor his businesses. Turning over day-to-day control over the businesses means that Trump might not know the impact of government policy on all of the details of his business empire, but he will surely know how, say, a change in the tax code on the depreciation schedule for golf courses will affect his businesses. Likewise, a foreign government that publicly announces that its diplomats will stay in Trump-branded hotels can thereby attempt to curry favor with Trump without his having to be involved in the running of those hotels.

Accordingly, turning over the day-to-day operation of the family businesses to other family members is nothing like creating a blind trust. It's not even like creating a vision-impaired trust.

Why doesn't Trump simply create a blind trust? The facile answer is that the nature of his business appears to preclude his doing so. A billionaire-turned-politician who made her fortune by founding a tech company can simply sell all of her ownership interest in the company and then give the assets over to a trustee to invest and manage. Neither the billionaire nor the public knows what investments are in her portfolio, and therefore there is no opportunity for those investments to distort her policy judgment. One might think that, by contrast, Trump is far too closely tied to his businesses to be able to divest ownership. Much of the value of the Trump empire is the Trump name, which itself is an association with the Trump lifestyle, as personified by Donald Trump. According to this objection, Trump can't put his assets in a blind trust because he is his assets.

But that answer is too facile. For one thing, it's often true that a wealthy person must sacrifice some of the value of her assets in order to govern without a conflict of interest. In the tech billionaire scenario, even after a company has gone public, part of its market capitalization may reflect the leadership of the founder. Think Apple during the Steve Jobs eras. When the founder divests, she somewhat undercuts the value of the company, including her erstwhile shares in it. Taking a haircut can be part of the price of providing honest public service.

Now, it can be objected, there's a very big difference between Apple and the Trump businesses. Even after Jobs gave up running the company and then died, Apple has been a very successful company. By contrast, the objection goes, the Trump businesses don't exist without Trump.

Yet this objection is dubious. For many years, a major element of Trump's business has been the licensing of the Trump name to properties that are owned and managed by completely separate parties. People nonetheless pay a premium for Trump-branded properties because they associate the name with luxury, even absent any direct connection to Donald Trump. Divesting Trump of the income stream from these licensing deals does not fundamentally change what is being paid for. Thus, the portion of the Trump business that consists in licensing the Trump name can readily be sold to a third party for the discounted present value of its future earning stream.

Meanwhile, those pieces of the Trump empire that consist in tangible goods and real property have a cash value. To the extent that part of their value comes from the Trump name, they also can be sold along with a license to use the name, much in the way that the pure licensing arrangements can be sold.

Is it possible that the Trump properties along with the license to use the Trump name would fetch a
price somewhat lower than the full value of the Trump empire under Trump's supervision? Sure, but it's important to distinguish two different sorts of premium that would be forgone by Trump selling off his assets and the right to use his name.

One premium has to do with management. Despite Trump's spotty business record, there are undoubtedly people who believe that a "real" Trump property is worth more than one that is merely Trump branded. However, forgoing the premium associated with active management is very much in line with what other wealthy people forgo when they sell their identifiable assets and put the proceeds into a blind trust. So while the loss of the management premium could be real, asking Trump to forgo it as the price of public service does not treat him any differently from anyone else. His business is not unique in this regard.

However, there is a second premium that Trump would forgo by selling off his properties and the right to license his name: what I'll call the "corruption premium." By continuing to own properties that are clearly identified with him, Trump effectively invites foreign governments and private parties seeking favorable regulatory treatment to do business with Trump enterprises on more favorable terms than otherwise justified. If Trump were to sell his businesses, the buyer could not capture that additional income stream, because future business counter-parties would know that doing business with the Trump brand would no longer create a financial benefit for the president. Thus, the sale price would not include the discounted present value of that additional income stream. Selling would require Trump to forgo the corruption premium.

Yet that is exactly the point. Surely even Trump and his supporters do not think that he is entitled to receive the corruption premium. Why, then, is Trump unwilling to forgo it by selling his assets and the right to license his name for at most the same sort of discount that any wealthy person who has been closely associated with a particular company would have to absorb as the price of avoiding the fact or appearance of corruption?

Here's a useful thought experiment. Suppose that, after the election of 2008, Barack Obama had decided to cash in immediately. Despite having no prior involvement or experience running hotels or golf courses, Obama sold the rights to his name to a chain of reasonably well-managed hotels and golf courses under a deal in which he earned 20% of net operating profits. Would anybody think that this was anything but corrupt? And yet the money Obama would have earned from Hotel Obama and the Obama National Golf Course would be no different from the money that Trump will earn due to the corruption premium.

Trump has shown no interest in substantially distancing himself from his business interests, much less in divesting his current assets in favor of a blind trust. Given Republican control of Congress and his own impending control over the executive branch, he can probably get away with pocketing the corruption premium. That still doesn't make it remotely acceptable.

Tuesday, November 29, 2016

The Paradox of Bureaucracy as the Savior of Freedom

by Neil H. Buchanan

The new president-elect is acting as if he won a sweeping victory, even though precisely the opposite is true.  The question now is whether anyone can or will stop him from abusing power, given that he has never shown any inclination toward personal restraint.  How far could he go?

In several of my writings over the past year, and in particular in two recent columns (here and here), I have argued that the formal restraints on a president's power might be surprisingly ineffective.  A president can do great damage by adopting a confrontational approach, essentially doing what he wants while shouting, "Who's gonna stop me?!"

I would like to be able to report that those concerns are overstated, but unfortunately I cannot.  We really might be in the very beginning stages of witnessing how little we can do to stop the dictatorial impulses of a president who lacks shame or modesty.

On the other hand, it is also useful to think through the various ways in which a president can be stopped or at least slowed down.  The restraints might be much less effective than we used to believe, but it would take time and effort to neuter them entirely.

A number of years ago, I came across a theory that tried to explain why the U.S. has never had a military coup.  We have an incredibly powerful military-industrial complex, after all, and there are plenty of times in history in which an ambitious would-be tyrant could have pictured himself "saving" the country by deposing the civilian government.  Why have there been no coups?  Have we simply been lucky?

Although there are many factors at play, the one explanation that I found both surprising and convincing was that we have created a culture of distrust and competition among the four military services.  The friendly competition of the annual Army-Navy football game is one small example, but the larger picture is one in which the members of each service genuinely appear to dislike those in the other services.

This distrust is so well-known that it shows up in countless movies, including the classic meme in which a bunch of Navy sailors and Marines end up in a huge bar brawl, simply because they are sailors and Marines.  Similarly, in the film "Dr. Strangelove," there is a scene in which an Army general and an Air Force general argue angrily over whose men could win a battle.

In important and unfortunate ways, this ongoing competition is quite expensive.  We end up paying billions upon billions of dollars when the Navy decides that it needs a fighter jet that is as cool as a new jet that the Air Force is building.  And even though the Marine Corps is actually part of the Department of the Navy, the Marines compete separately for their own preferred military equipment.

That expense, however, has brought with it a standoff that has arguably contributed to the ability of the civilian government to continue to be in charge of the military, and not the other way around.

The question, in the face of the upcoming Trump presidency, is whether there are similar structural and behavioral barriers in other parts of the government and society that would prevent the worst-case scenario of the end of constitutional democracy from becoming reality.

Sadly, there are no guarantees. Still, there are good reasons to think that the federal government could be more resilient than we might think to a Trump-led attempt to erase all barriers to presidential power.

The most useful historical example is, of course, Watergate.  There, it turned out that there were people of integrity who were willing to stand up to Richard Nixon's imperial ambitions, people who were not willing to say that whatever the president does is by definition legal.

The infamous Saturday Night Massacre in 1973, for example, found Nixon trying to fire a special prosecutor, but his attorney general (Elliott Richardson) and deputy attorney general (William Ruckelshaus) both refused to do so.  They resigned, and even though Nixon then found someone (Robert Bork) who was willing to do his dirty work, the principled resistance of Richardson and Ruckelshaus led to sufficient public pressure to stop Nixon from steamrolling the rule of law.

The reason that the Saturday Night Massacre is such a memorable event, however, is that it was so unusual.  There are plenty of ways in which Nixon could have tried to accomplish his goals without creating such a public showdown.

Similarly, my hypothetical example (hopefully a fanciful one) of Trump trying to have congressional leaders arrested would probably find many patriotic members of law enforcement refusing to obey that order.  After all, people who have sworn an oath to uphold the United States Constitution might find it difficult to justify violating it so blatantly.

Of course, there are limits to these limits.  Nixon did, after all, finally find a loyal assistant in Bork, and it is not clear what would have happened if Nixon had not appointed a new special prosecutor.  And even the intra-military competition that I described above could surely be overcome if the circumstances were ripe.

Is there something even more basic that holds back an autocratic wannabe?  In a recent conversation with a friend who served in the military and who has worked for years in various government security-related jobs, I learned about some of the ways in which the rank-and-file federal workforce -- including those in military and law enforcement positions -- are trained and conditioned in ways that (perhaps not by design) prevent the worst from happening.

Among people in the federal workforce, there is apparently what amounts to a prime directive: Stay in your lane.  That means that there are things that each person is supposed to do, and other things that are someone else's responsibility.  There are people who hold grudges literally for years after someone has gotten into their lane, and there are ways for the offended party to exact retribution.

What constitutes a violation of the stay-in-your-lane directive?  Basically, everyone learns the rules of the organizational road, and they know both who is allowed to tell them what to do and what they are (and are not) allowed to do.  When someone gets into someone else's lane, that means not only that the violator is breaking protocol but that his target will be forced to do something unusual, too.

Being outside of the organizational comfort zone is not merely a matter of feeling that something wrong is going on, but it threatens the person's sense of autonomy within the broader scheme of things.  "I am part of an organization with a larger purpose, where my role is to do X, and I do it well.  You can't just show up and tell me to do Y without warning or justification, and without going through the proper channels."

Again, it is not difficult to imagine how such an invisible restraint could be overcome by a sufficiently emboldened politician.  Former Vice President Dick Cheney famously leaned on intelligence officers until they gave him the answers that he wanted to justify the invasion of Iraq, and it is quite understandable that no one told him to stay in his lane.

There are also positive reasons to value the federal bureaucracy, which is tragically underappreciated.  For example, Paul Verkuil recently described the penny-wise-pound-foolish nature of efforts to shrink the federal workforce, showing how we need real expertise to carry out all of the functions of a modern government, especially revenue collection.

While all of that is true, the stay-in-your-lane imperative provides a counter-intuitive reason to appreciate bureaucratic behavior.  A large organization that cannot turn on a dime to do many good things also cannot suddenly do many bad things.

Even a Trump Administration, therefore, is going to go through the paces of having government lawyers write memos about how and when executive orders can be rescinded, the proper procedures for modifying federal regulations, and so on.

Trump will certainly have to deal with legislative defeats if he tries to push through laws that are too extreme for as few as three Republican U.S. Senators.  At least for now, he will not be able to say, "I deem that law to be enacted, so I'm going to ignore the normal rules of legislation."

There are plenty of shocking things that Trump can do when he thinks that he can get away with them.  For example, he has apparently decided that no one is going to stop him from carrying on his private businesses from the White House, even though this creates enormous conflicts of interest that will affect every American.  Trump is anything but subtle.

But there is still a vast bulwark of rule-abiding, loyal Americans who stand in the way of a Trump dictatorship.  These people have good reasons, both professionally and institutionally, to prevent political appointees from cutting corners.

All of these norms and limitations, however, can be eroded over time.  Therefore, the most important thing that believers in the rule of law must do for the foreseeable future is to be vigilant about the many ways that Trump and his people will try to beat down the federal workforce and violate established procedures.

Of course, Trump will borrow from the Republicans' well worn hymnal to denounce "entrenched bureaucrats," "government waste," and the usual litany of complaints about living in a world of laws and not men.  His complaints, however, will merely prove that his power is still limited, which will be a reason to celebrate.  We must tirelessly defend the rule of law.

Monday, November 28, 2016

Federal Marijuana Enforcement Policy in the Trump Administration

by Michael Dorf

The announcement that President-elect Trump plans to nominate Jeff Sessions for Attorney General was newsworthy chiefly because of the extreme views Sessions has previously expressed and the actions he has taken with respect to civil rights and immigration. However, as a story in the New York Times last week noted, Sessions has also been highly critical of the Obama administration's policy of mostly forgoing enforcement of federal law with respect to marijuana in those states in which it has been made legal either for medical purposes or more generally. Because that policy takes the form of various internal Justice Department guidance memos (like this one in 2011 and this one in 2013), rather than a regulation, much less a statute, a new Attorney General could easily rescind it and change enforcement priorities.

Whether Sessions actually would attempt a federal crackdown partly depends on how much authority Trump delegates to him. It is easy to imagine that Trump would not be a "hands-on" president in this regard, given his lack of prior law enforcement experience and the press of other business. Trump's own views on the matter are unclear. Trump appeared to favor legalization of medical marijuana and a policy of federal deference to state law, but he did not campaign on marijuana-related issues and even if he had, there is reason to question how or whether what he said as a candidate would translate into policy.

There are also political considerations that might make the Trump administration reluctant to reverse the Obama marijuana policy. To be sure, if you superimpose the electoral map on the marijuana map, you find that there is a fairly strong correlation between Democratic voting in the 2016 presidential election and degree of marijuana legalization. The states Clinton won most handily tend to have the most liberal policy (legal recreational use) while the states that Trump won most handily tend to have the strictest policy. That might lead one to think that Trump wouldn't suffer politically from a marijuana crackdown.

However, purple states and even some quite red states (e.g., Alaska, Montana, Texas) have legal marijuana to one degree or another, and there are obviously a fair number of people who voted for Trump and for legalizing recreational use. Moreover, even some Trump voters who oppose state legalization might resent federal intrusion on federalism grounds. A federal crackdown on marijuana would likely be quite unpopular overall, and for that reason, it is possible to imagine Trump or his political people attempting to restrain Sessions.

Suppose they fail to do so and that Sessions cracks down. What would the consequences be? It's not entirely clear, but my best guess is that a Sessions-led federal crackdown would be a great boon for drug gangs. I'll now explain why.

As The Times story noted, the federal government lacks the resources to enforce federal marijuana prohibitions against small-time dealers, much less users, on anything like a systematic basis. Even in the days before states began legalizing medical or recreational marijuana, the DOJ and Drug Enforcement Agency (DEA) focused on major distribution networks, although occasionally the Feds would participate in "federal days"--jointly making arrests with local authorities and prosecuting some of the arrestees in federal court on federal charges. Even if the Sessions DOJ were able to conduct some more federal days without the assistance of local law enforcement, however, such an approach would not pose a serious risk of apprehension and federal prosecution of typical marijuana users and street-level dealers, given the federal resource constraints.

Accordingly, to be at all effective, a federal crackdown would mostly have two targets. First, as suggested in the Times story, the federal government could sue state authorities to enjoin those aspects of the state marijuana legalization regimes that do not merely fail to outlaw marijuana on state grounds but provide affirmative assistance to state-licensed growers and distributors in violating federal law. Second (and curiously unmentioned in the Times story), the DEA could readily go after easy targets, such as the retail marijuana shops and those state-approved growers that operate in the open. After even a few federal raids of such businesses, the state-legal open marijuana business would almost completely shut down, because the business would no longer be profitable.

But of course that wouldn't make marijuana disappear from states in which it is legal. A Sessions crackdown along the foregoing lines would return those states to conditions before legalization, albeit with an important difference. Before legalization, such states often devoted substantial law enforcement resources to arresting low-level dealers. They no longer do, and given the likely resentment of a federal crackdown, the state and local politics would mostly preclude returning to pre-legalization state and local efforts to combat marijuana.

Hence, the post-federal-crackdown landscape in states that have legalized marijuana could well be the worst of all possible worlds: No one would offer regulated marijuana under the state's regime, for fear of a federal raid; state and local government would not expend many resources to combat illegal marijuana; and federal resources would be inadequate to police illegal marijuana in a way that substantially reduces supply. The net result would be to increase the power of drug gangs and the associated violence.

At that point, Trump and Sessions would likely invoke the increase in drug-gang crime they had created as a basis for a further crackdown on . . . undocumented immigrants because "they're bringing drugs. They're bringing crime . . . ."

I know. I whipped out that Mexican thing again. But it was relevant.

Saturday, November 26, 2016

Sorting Through the Election Wreckage

By William Hausdorff

It has been almost three weeks since Election Day and I’m still sorting through the wreckage of my preconceptions and my expectations.  I’ve gradually realized that four related but distinct sources of shock are amalgamated in my head and need to be teased apart.   These are:

1.  Failed polls
2.  Failing Democratic Party
3.  Trump as President?
4.  The Voting Public’s Tolerance

1.  The utter failure of the polls to predict the outcome in the key firewall states.  

My initial shock was mainly because I just didn’t see it coming.  A look back at the poll analyses indicates this was not simply a case of wishful thinking.   In fairness, poll analysts got the key states of Florida and North Carolina right—they were predicted to be more or less toss-ups.

But this was not the case for Pennsylvania, Michigan or Wisconsin.  For example, fivethirtyeight had the probability of Clinton winning each of the firewall states to be 77%, 79%, and 83%, respectively, making Trump a long shot.

Most strikingly, in none of their forecasts, updated daily after the conventions through Election Day, did the predicted vote margin in favor of Clinton EVER dip below 3.2% in Wisconsin and Michigan, and went no lower than 2.5% in Pennsylvania.  In each state, their final predictions were a victory margin of 3.7-4.3%. This, in my book, is a clear polling failure. 

Why did this happen?  Perhaps it didn’t, and that recounts could reveal that.  The differences between the two candidates in Wisconsin and Michigan are 1% or less.  I don’t understand why there is any doubt about the need for recounts in these key states, given the repeated allegations that the “system is rigged” and the known attempts by foreign governments to interfere with the US election. Just as the apparently losing Republican governor in North Carolina was obviously justified to ask for a recount in his election—the race there is just too close.

There is absolutely no question that Trump’s campaign and the Republican party would be demanding a recount if the situation were reversed, and that it would be seen as legitimate.  Why is it considered “being in denial” if the Democrats/Greens ask for a recount?

That being said, I’m not aware of evidence that there were irregularities of sufficient magnitude to change the results of the election. Yet I don’t find it reassuring that the same polling statisticians whose models utterly failed are now using similar models to “explain” that the election results in Wisconsin are not due to irregularities.  Just recount the votes!

So upon reflection, this shock is lessening, as there are multiple rational reasons why the pollsters failed.  When fewer than 10% of households targeted will provide an answer to a pollster, for example, it is difficult to believe that those who do are fully representative of the other 90%--even assuming the original household targeting was representative.

And, to be fair, pollsters everywhere are having a tough time.  The list of recent polling failures encompasses not just Brexit, but also the Colombian referendum on the peace deal with the FARC guerrillas, as well as the first round of the French “Republicans” primary.

2.  The Democratic Party is not a serious political entity at the state governmental level in most parts of the US.  It’s barely treading water in the House of Representatives. 

This is now glaringly obvious, and continues a trend that has been going on for years.  Conversely, the Republican/Tea Party is alive and well.

The media obsession with the national election obscured the fact that the state and regional figures are stunning.  As Daily Kos neatly summarized:  

Republicans [are] in charge of 68 state legislative chambers and Democrats just 31.  Republicans control both chambers in 32 states, including 17 with veto-proof majorities. Those 32 states cover 61 percent of the U.S. population. Democrats, meanwhile, control the legislature in just 13 states, amounting to 28 percent of the country’s population; only four of those chambers have veto-proof majorities.
In addition

Republicans now control the governor’s office in 33 states, amounting to 60 percent of the population, while Democrats control just 16 states with 40 percent of the population.

The Republican/Tea Party holds a seemingly unshakeable 55% of the seats (238 to 194) in the House of Representatives, easily absorbing the handful of seats lost to the Democrats.  Given Republicans’ generally acknowledged superior ability to gerrymander House districts, it may just be a matter of time before the Republican-dominated state governments adopt allocation of electoral votes on the basis of congressional districts,  This is, at present, only done in Maine and Nebraska but was more popular in the past.

But perhaps this isn’t necessary. Clinton’s slender advantage in the popular vote makes the electoral college vs popular vote results a red herring.  I find convincing Trump’s recent boast that, if the system were based on the national popular majority, he would have focused his campaign in New York, Texas, and California and likely picked up the needed votes there. 

I have to admit that I had drunk the Kool-Aid in believing that, as the proportion of the electorate comprised by whites continues to shrink, a great demographic transition will make the Democrats the inevitable party—Georgia and Texas are soon to fall! 

One can blame gerrymandering, differential funding issues, voter suppression laws—all of which I’m convinced play a significant role--but the bottom line is that the Democrats are clearly not inevitable. There is little reason to buy the underlying assumption that the vast majority of Hispanics and blacks will always prefer an establishment Democratic candidate to a Republican maverick, or that even if they do, they will be sufficiently motivated to come to the polls. 

3.  The supremely unqualified and buffoonish Donald Trump will be President, and the face of the US to the world, for at least the next 4 years

In certain ways Trump is most reminiscent of Ronald Reagan.  This is simultaneously painful and oddly comforting: while the 8 years of Reagan were brutal in a lot of ways, we did survive them.

In an incisive piece, Frank Rich highlighted the striking similarities of Reagan and Trump as candidates.  Trump’s fabrications and pathological mendacity are well established.  But Reagan’s

… fantasies and factual errors [were] so prolific and often outrageous that he single-handedly made the word gaffe a permanent fixture in America’s political vernacular.

In light of his subsequent diagnosis with Alzheimer’s, I find especially intriguing Reagan’s repeated claims to have personally filmed the liberation of a concentration camp in WWII, when he actually spent his war years in Hollywood.

As President, Reagan named as cabinet heads people inherently opposed to the mission of their agency, whether environmental protection, stewardship of public lands, or enforcement of civil rights.  Infamous examples included Anne Gorsuch at EPA, James Watt as Secretary of Interior, and Ed Meese as Attorney General.  Trump seems headed in the same direction.

Trump is obviously little interested in the details of the job of President.  There is the bizarre account of his son offering the vice presidential slot to John Kasich with the carrot that he would be “in charge of foreign and domestic policy,” while Trump would be preoccupied with “making American great again.” This, unfortunately, bodes poorly for oversight of subordinates.

President Reagan’s own hands-off management style gave rise to the major scandal of his presidency, Iran-Contra.  He was supposedly blissfully unaware that his National Security Council was secretly selling armaments to America’s arch-enemy Iran, whom his administration had only recently designated a “state sponsor of terrorism.” 

Despite his subsequent denials, these arms sales were ostensibly to help free American hostages held by Hezbollah in Lebanon, and to improve relations with Iran.  Notoriously, they were also used to divert funds from the proceeds to the Nicaraguan rebels (Contras) fighting the existing government, in direct defiance of the Congressional restrictions via the Boland Amendment.

It’s worth recalling that several very high ranking Reagan administration officials were eventually indicted (Secretary of Defense) and/or convicted of felonies (e.g., two National Security Advisors; Assistant Secretary of State; high ranking CIA officials).  Yet almost nobody went to jail: they were either sentenced to probation, or had their convictions overturned, or were later pardoned by Bush Sr. 

While no evidence emerged that Reagan directly approved the individual actions, he was strongly criticized by the Tower Commission for lack of critical review, accountability, and performance review of his own National Security Council. 

One big difference from Reagan is that Trump seems mainly focused on the progress of his business and touting how smart and rich he is. Because Trump “knows” that, from a legal standpoint, “the president can’t have a conflict of interest,”  I don’t see any reason to believe he will do ANYTHING AT ALL to managerially and legally distance himself from his businesses.  Particularly worrisome is the current media perception that the legal community agrees that he can freely commingle his business with that of the US government, as long as he doesn’t benefit from gifts from foreign governments.  I can’t even begin to estimate how quickly this will seriously tarnish the US image around the world.

4.  Half of the US electorate voted for a candidate who was openly misogynist and racist,  used threatening rhetoric, and explicitly ridiculed many American values and traditions. 

This, for me, is the most difficult aspect to digest.  It would have been only slightly less painful if Clinton had eked out a majority.

Perhaps there are mitigating factors.  We know that Trump as a candidate would say virtually anything, and reverse himself the next week (or day).  Perhaps most “decent” Trump voters-- everybody has people in their family they love who voted for him—were clever enough to never take seriously almost anything he said, recognized him for the essential conman he is, but decided that he embodied “change” and was neither the establishment nor the diabolical Hillary.  And assumed he couldn’t or wouldn’t implement the really vicious stuff.

And maybe many of the 53% of white women who voted for him think most men essentially see women as Trump does, or would be like Trump if they were in powerful positions. 

And I’m wondering what the role was of The Apprentice, where week after week and year after year Trump portrayed himself as an authoritative, tough but Solomonic leader worthy of respect and awe.  I’ve previously suggested that TV shows glorifying torture, or showing a competent, intelligent black president, or with openly gay characters, may have helped shape public acceptance of previously taboo topics. Could The Apprentice have imprinted an enduringly positive, if not Presidential image of Trump in the minds of the tens of millions of viewers?

Nonetheless, as a candidate Trump really did openly stoke the flames of racial and religious resentment, scapegoated minority groups, and gleefully talked about torturing families of suspected terrorists.  In a time of serious economic challenges, but certainly not crisis, half the voting population supported him.

It is true that he doesn’t have a history of actually putting into practice his violent rhetoric.  But what will happen if there is a real depression—will we elect a “change” candidate who actually had a track record of violent, racist activities?

What I didn’t hear, and still don’t hear, is clear condemnation of his misogynist/racist/nasty aspects by the “decent” people who voted for him. People admitting there is a point beyond which “he could go too far.”  I guess I’m no longer sure where that point is for half the US voting population.
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