Tuesday, January 16, 2018

The Long-Term Impact of "Fire and Fury" and "Shithole Countries"

by Neil H. Buchanan

If someone had told me on New Year's Day that the first two big stories of 2018 would be the release of a book detailing the White House's dysfunction and Donald Trump causally denigrating more than a billion nonwhite people, I would not have been even a little bit surprised.  Looking at this mess barely two weeks later, only the details are somewhat unexpected, and even those details are not at all shocking.

It seems like an eternity has already passed since Michael Wolff's book became the talk of the town, but the the first newspaper articles about Fire and Fury book were actually published on January 3.  (The New York Times ran a Reuters piece that afternoon.)  The ensuing two weeks have seen the kind of nonstop screaming fest that has become all too familiar in the last year, and Trump's racist comments last week about immigration from poor countries simply added to the chaos.

What, if anything, will be the long-term impact of all of this hubbub?  Even at this early point, it appears that this is just another insane set of news cycles that will be quickly forgotten, with only the detritus lingering in the public's mind.  (The word "shithole" is now permanently part of the world's political lexicon.)

The only development of any lasting significance, I think, is the Wolff-caused epic blowup of the relationship between Steve Bannon and Donald Trump.  What is puzzling and surprising, as I explain below, is that it is currently possible to see how that crackup could turn out to be a win for almost everyone (except Bannon himself, of course), even though it cannot possibly end up being a win for everyone simultaneously.

In the end, however, I think the most likely effect of the latest events will be that Trump -- even without Bannon -- has turned every Republican into every Democrat's dream opponent.  The first half of January will have made it even easier to run against Trump's party of enablers in November.

Monday, January 15, 2018

Dr. King, Trump, and Dignity

by Michael Dorf

In past years, I have marked the birthday of the Rev. Dr. Martin Luther King Jr. by discussing his oratory or noting the importance of the recognition of the day as an official holiday. This year I want to reflect on what an official celebration of King's anti-racist legacy means when we have a racist president. I'll use Trump's description of Haiti, El Salvador, and African nations as "shithole countries" as my jumping-off point, turning back to Dr. King at the end of this essay.

Friday, January 12, 2018

Reality-Based versus Faith-Based Economics

by Neil H. Buchanan

Imagine that you are in business.  You make good products, but you necessarily create a mess while you make them.  Like baking cakes, or catering parties, or refining oil into gasoline.  People want what you are selling, and you can make it cheaply enough to make a profit.

You hate dealing with the mess, but you have to do something about it.  What to do?  Cleaning up your own mess is annoying, costly, and time-consuming.  You could hire someone else to do it for you, or you could figure out a way to push the mess onto someone else and force them to deal with it.

In each of those two alternatives to doing it yourself, you no longer need to care about how the mess is handled.  If your hired clean-up crew is inhaling toxic chemicals or developing repetitive stress injuries, that does not feel like your problem.  If you have successfully pushed the mess completely onto others (by dumping your mess into a river, for example), you do not even need to worry about paying anyone at all.  Out of sight, out of mind.

For you, the best part of making your mess other people's problem is that you can do more of what you like to do.  You can make more cakes, cater more parties, ship more gasoline.  Your revenues are up and (with some exceptions that you can generally choose to avoid) so are your profits.  Freedom to be entrepreneurial, to be a maker and not a taker, feels good.  You like yourself, and people say good things about you.

So when someone comes along and tells you that the way you are shoving your mess onto other people is dangerous or economically damaging or simply unfair, you have two choices.  You can admit that your productive activities are more costly than you realized and take responsibility.  If so, good for you.

Unfortunately, you can also scream about how other people do not appreciate your genius and the sacrifices that you make, and you can buy politicians who will allow you to keep doing what you are doing (and who will make flowery speeches about you whenever possible).  This has the advantage both of fattening your bottom line and flattering your self image.  Who could say no to that?

Thursday, January 11, 2018

The Deregulation Fairy

by Neil H. Buchanan

One of the myths that Republicans have successfully planted in the mind of the media is that American businesses have been excessively regulated.  This has led to credulous reporting about the supposedly "onerous burdens" of federal rules, recitations of the number of pages in the Code of Federal Regulations, and so on.

That old myth has now oddly merged with a new myth that grew out of the 2016 elections.  American political reporters and editors decided that they had been living in a bubble and thus failed to see the misery that purportedly led a surprisingly large minority of voters to pull the lever for Donald Trump.  Solution?  Send reporters to The Heartland to talk to Real Americans about why they like the man-child that they put in the White House.  Be respectful.  Believe whatever they say.

The results have been absurd, reaching a low point with an infamous New York Times piece in November of last year about a Nazi sympathizer who lives in Ohio.  The article was rightly mocked for normalizing a sociopath (He likes "Seinfeld"!), and The Times backtracked furiously.  Yet that incident only served to highlight the ridiculousness of the efforts by self-flagellating media types who think that their job is to engage sympathetically with people who voted for an obviously racist candidate and campaign.

How do these two myths fit together?  Coastal reporters are going to The Heartland again, but not to talk to the supposedly forgotten people who flipped from the Democrats to the Republicans and put Trump in office.  Instead, the new move is to interview Republican businessmen and then gullibly report what they say about Trump's deregulatory agenda as if it must be important and true.

To be clear, I am not equating the hatred of white supremacists with the self-important reactionary politics of local business elites.  What I am doing is equating the instinct on the part of reporters and editors that talking to people in the Midwest brings with it a requirement to present anything that the interviewees say in sympathetic terms.  Uncritical reporting is stenography, and it can make absurd ideas seem normal.

Wednesday, January 10, 2018

When Should Federalism Matter to the Exercise of Prosecutorial Discretion?

by Michael Dorf

In my latest Verdict column, I examine three grounds for opposing the Sessions/Trump reversal of the Obama administration marijuana policy: (1) It betrays promises made by both Sessions and Trump; (2) it's bad policy; and (3) it betrays principles of federalism. I agree with points (1) and (2), but I register considerable skepticism about (3). To my mind, the federalism objection is parasitic on the policy objection. If one thought that some federal law were important--a law restricting machine gun ownership, say, or, per my example in the column, a civil rights law targeting state and local government complicity in racial violence--then the fact that the state did not have duplicative laws would not count as a reason for federal forbearance. Indeed, we might think that the absence of state law counts as a special reason for vigorous federal enforcement.

Here I want to sketch the boundaries of these principles. Does state policy ever justify federal forbearance? And if so, why doesn't it justify forbearance with respect to federal marijuana enforcement?

Tuesday, January 09, 2018

How far gone must a president be to be "unable to discharge the powers and duties of his office"?

by Michael Dorf

Yesterday I discussed the seeming oddity that public debate about impeachment and the 25th Amendment has lately treated the two constitutional mechanisms as interchangeable. I concluded that there is actually an area of substantial overlap between the two, analogizing to the overlap between conduct that could give rise to either (or both) criminal liability and civil confinement based on dangerousness due to a mental disorder. Today I want to ask another question involving the 25th Amendment: How far gone must a president be to be "unable to discharge the powers and duties of his office"?

Monday, January 08, 2018

The Overlap Between Impeachment and the 25th Amendment

by Michael Dorf

To make clear that I am about to engage in a purely "academic" exercise, I begin with the obvious political reality: (1) There is virtually no chance that Donald Trump will be removed from the presidency via the 25th Amendment based on his past conduct or his inevitable future conduct of a similar sort; and (2) absent irrefutable evidence of crimes on the order of cannibalistic murder personally committed by Trump, there is also virtually no chance that Trump will be removed from the presidency via impeachment, even assuming a strong midterm wave election in which Democrats take the House and the Senate, because Republicans will still have enough votes in the Senate to block removal.

That is the reality, because it is now clear that there are very few Republicans willing to stand up to Trump when it really matters. I suppose that it is possible that a sufficient drubbing in the midterm elections could change that--which is why I hedged a bit by saying "virtually" twice in the prior paragraph. For practical purposes at least for now, both impeachment and invocation of the 25th Amendment--no matter how justified--are a mirage.

Nonetheless, because I am an academic who values academic exercises, I want to use the current moment--in which our president has issued a self-refuting tweet branding himself a "stable genius" in response to the report in Fire and Fury that various members of his own inner circle regard him as unfit for office--to make some observations about the partial interchangeability of removal by impeachment and removal via the 25th Amendment.