Saturday, April 30, 2016

You're Fired, Mr. Chief Justice!

By Eric Segall

The scene is the Oval Office. The date is January 21, 2017. President Trump is swinging a golf club when his intercom goes off. A soft female voice says:

“The Chief Justice is here to see you Mr. President, Sir.”

Trump responds, “Okay, let him sweat for a few minutes.”

Trump continues to swing the club and on his fourth effort takes a chunk out of the wall. He shakes his head and goes back to the intercom.

“Sarah, make an appointment with my golf pro for 2:00, and send the Chief in.”

Roberts walks in, looks around the room, sees the dented wall.

Trump returns to his desk and with great indifference says, “Good morning, Chief, sit down. How are you?”

Roberts sits in a very small chair in front of the huge desk.

“Fine, Mr. President.”

“Good, you're fired. I am displeased with your work as Chief Justice. You have no managerial skills or experience. I wouldn't hire you to clean a courthouse in Poughkeepsie!"

Roberts pauses, then calmly responds, “With due respect sir, you can't do that.”

Trump stands up behind the desk and puts his palms on the wood. “Of course I can. I am great, the Presidency is great, and I'm going to make the Supreme Court great again."

Trump raises his voice: "I’ve fired everybody who’s ever worked for me, except my children . . . yet. I am the President. Every federal employee works for me, including you. So I can fire you, and I have fired you."

Roberts says sheepishly: “You don't think the Supreme Court is great?”

“No, you're terrible, you passed Obama Care, twice!!”

“Actually, sir, Congress passed it.”

Trump shakes his head. “They're worse than you. Who cares what Congress does? The members of Congress are my employees also, and I intend to fire them, maybe along with your seven colleagues, who are just talkative nothings, except for Justice Thomas of course. And I will personally make health care great again."

“Well, sir, I do wish you the best of luck of luck with all that. But, I am afraid you can't fire me.”

“Why not?”

Roberts looks Trump right in the eye. “There are many reasons, Sir, but for one, we Supreme Court Justices serve during “good behavior.”

“What? Your behavior has been terrible! Anyway people who work for me have to have great behavior! Where does it say “good behavior?”

Roberts sighs. “Article III of the Constitution. I can’t be fired, only impeached. I serve for life unless I commit a high crime or misdemeanor.”

“That’s ridiculous. I'll hire the greatest constitutional law experts ever to change that. Besides, I am great at English and good behavior doesn’t mean a job for life.”

“It’s more of an historical thing.”

Trump looks confused. “What is?”

“That good behavior means life tenure.”

“You’re not a f*cking teacher! You don’t have any tenure. That is stupid. You’re stupid. This is exactly why you're fired! Besides, in my business no one has a job for life.”

“Well, this is a government, not a business of course, and we have the separation of powers. It makes this country great.”

“I know, I know. I believe in separation of powers, the greatest separation of powers, and I am about to separate you from your powers.”

Roberts gets up to leave. “Well sir, I guess we will have to see."

See what?

Whether you can actually fire me.”

Trump comes around from behind the desk and puts his arm around Roberts, who awkwardly tries to slide away.

“We could make a deal. I make the best deals.”

Roberts shakes his head. “I don’t think so, sir. I hold all the cards.”

“We’re not playing cards, we 're playing government, and no you don’t.”

“Don’t what?”

“Hold all the cards. "I'm the boss, the big boss, the biggest boss. you'll see. Start packing."

Roberts shakes his head and walks towards where he came in. “I do have the Constitution on my side and I’ll take my leave on that note.”

Trump yells at him, “Fine, I won’t fire you or the other judicial nothings. I will instruct the D.C. government to supply no electricity, telephone service, water, or food to the Supreme Court (there goes your crappy cafeteria). I will order that the Justices’ chairs and spittoons be removed and sold. I will convert the Court’s garage into a hangar for my helicopters and limos. You'll see!
Roberts exits. Trump goes back to his desk and picks up his golf club. He presses the intercom. "Sarah, get Sotomakagan over here pronto. We're cleaning house!"

Friday, April 29, 2016

Trump Confuses Tactical and Strategic Unpredictability

by Michael Dorf

So much of what Donald Trump says is nonsense that taking his pronouncements seriously feels like a sucker's game. But as the likelihood that he will secure the GOP nomination has recently increased, simply ignoring him is untenable for anyone interested in public policy. One approach would be to point out the nonsense, vapidity, and internal contradictions in what Trump says. That is a full-time job by itself.

Consider Trump's speech on foreign policy on Wednesday. The biggest piece of nonsense was the following statement: "I was totally against the war in Iraq, very proudly, saying for many years that it would destabilize the Middle East." Politifact rightly rates this statement "false." At best, Trump's pre-war stance could be called ambivalent. That's better than having been an enthusiastic supporter, but it doesn't draw the contrast he apparently intends to draw with Hillary Clinton, who, as a Senator, voted to authorize the Iraq war in the hope, she said, that doing so would give President Bush leverage with the UN and the Saddam Hussein regime. This HuffPo story is, in my view, too forgiving of Clinton and the other Democratic Senators who voted to authorize Bush to use force against Iraq, but the basic outline is correct. Trump's claim that he is a strategic genius who, unlike Clinton, foresaw and warned of the dangers of going to war in 2002/2003, is a lie.

The vapidity of the Trump foreign policy address speaks for itself.  For example, ISIS "will be gone quickly," but there is no explanation of how.

As for internal contradictions, I confess to nearly falling out of my chair laughing upon reading this observation by two writers for the NY Times: "There were paradoxes throughout Mr. Trump’s speech." No there weren't. Affirming two or more statements that cannot all be true gives rise to a paradox if one cannot figure out how any of the statements is false. A paradox implies a puzzle of some sort. In Trump's case there is no puzzle. He is simply a foreign policy dunce who is unaware that one does not reassure our friends that they can count on us by threatening to leave them unprotected unless they pay more for their defense. Etc.

Pointing out the inanity of a Trump speech is a game of whack-a-mole. I surely will be tempted to play the game again between now and November 8, but for now I want to take seriously an idea that Trump has repeatedly floated and that he repeated on Wednesday: that U.S. foreign policy should be less predictable. Here's the way he put it:
we must as a nation be more unpredictable. We are totally predictable. We tell everything. We’re sending troops. We tell them. We’re sending something else. We have a news conference. We have to be unpredictable. And we have to be unpredictable starting now.
The claim that tactical unpredictability is valuable strikes me as true in various contexts. Consider three:

1) You are a prospective home buyer negotiating a price for a house. You can spend up to $X but you would like to pay less so that you will have more money left over for other purposes. It would be advantageous to offer less than $X rather than immediately disclosing your full finances and accurately telling the seller that you can go as high as $X but no higher.

2) You are a soccer player taking a penalty kick. You kick with the most speed and accuracy when you aim for the lower left corner of the net. Nonetheless, you should not always try to kick the ball there, because if you do, the goaltender will know where to dive to block your kick. The optimal approach randomly selects a target based on probabilities correlated with your own strengths and the goaltender's weaknesses.

3) You are a general deciding whether to attack the enemy position from the front, from one of the flanks, or in combination. You would be wise to disguise your intentions.

Scenario 1 relates to Trump's criticism of the Iran nuclear deal. Trump considers himself a great deal-maker. He isn't, but let's put that aside. He thinks that a better negotiator would have gotten a better deal with Iran. That's probably false, and in any event, Trump has not offered any particulars about how this supposed better deal could have been reached. Indeed, I would be very surprised to learn that Trump even understands how the Iran agreement works. But the general point is true. A president negotiating an international agreement would do well with some unpredictability. Insofar as various aspects of the agreement are zero-sum, a country--like a home purchaser--stands to get a better agreement if the counter-party is uncertain about the country's squeal point. There's no evidence that the Obama Administration has acted in disregard of this principle, but it is a valid principle.

Scenario 2 is simply a stylized version of Scenario 3, so I'll treat them together. Trump appears to have military matters especially in mind when he touts unpredictability. Here too the general point is correct, and here too Trump is knocking on an open door. To see why, we need to distinguish between tactical and strategic unpredictability.

Tactical unpredictability undoubtedly has value in the conduct of war. Is there any evidence that President Obama is unaware of this fact? The signature military success of the Obama Administration was the mission that killed Osama bin Laden in Abbottabad, Pakistan. Although it was generally known that the United States was attempting to hunt down bin Laden, the Administration kept the operational details secret, especially from the Pakistani intelligence and military, which were deemed potentially unreliable. More generally, the Obama Administration has not in any way abandoned the principle of tactical unpredictability.

Nonetheless, the U.S. does typically announce when it is deploying troops on foreign soil. Trump thinks even this kind of strategic transparency is problematic, but he does not elaborate on how. Deploying large numbers of troops surreptitiously is impossible or at least a war crime--as when Russian troops in unmarked uniforms invaded Crimea. Special forces can be deployed secretly in small numbers, and the U.S. does just that. When the government announces a general policy of using special forces it never broadcasts exactly where they are going in a way that would jeopardize operations.

So what exactly is the complaint? President Obama and, before him, President Bush, have sometimes been criticized for announcing withdrawal dates far in advance. Some of the criticism is based on the (reasonable) objection that withdrawal decisions should be made based on military and political conditions at the time of withdrawal, not based on a pre-set timetable. But another criticism is that by announcing in advance that we plan to leave by a date certain, we embolden our enemies to hold on until that date. Could this be an example of foolish predictability?

Not really. Our enemies will be emboldened to hold on regardless of what we announce. There are really only two alternatives to announcing a date certain for withdrawal. One possibility is to announce that the U.S. will remain an occupying force forever. This is politically and morally unacceptable. It is also not credible.

The other alternative is to announce that the U.S. will keep troops in a country "until the job is done" or something like that. In what world would such resoluteness lead the Taliban or their equivalent elsewhere to lay down their arms? Actual battlefield success by U.S. and allied forces could lead to a political resolution. So could other measures. But the idea that a commitment to keeping troops in country on an open-ended timetable would lead insurgents to give up is naive. They know we will leave eventually. They will hold on as long as they can or think it is advantageous to do so in any event.

Bottom Line: Trump's proposal that U.S. foreign policy should be somewhat unpredictable is as empty as all of his other statements. Where unpredictability is valuable, we already practice it. Greater unpredictability would be unhelpful.

Thursday, April 28, 2016

Meanwhile, Back in the People's House, the Pandering Continues

by Neil H. Buchanan

In the midst of the ongoing drama of the presidential campaign, it is easy to forget that there already are people who have been sworn in as elected officeholders, and that those people are doing their jobs almost completely without public scrutiny.  Because the House of Representatives has been rigged to have a nearly permanent Republican majority, the House has essentially become like an incurable rash: annoying and sometimes even dangerous, but not worth thinking about very often.  Even without the presidential primaries to distract us, focusing on the House might not seem like a high priority.

In fact, unless Paul Ryan agrees to leave the Speaker's chair to run for president after an open Republican convention this summer, the chances are that we will not hear about the House again for the rest of the year.  Even before Ryan oh-so-reluctantly took the gavel from John Boehner, however, the regular activity of the House had become more than a bit of a farce.  Most of the activity seemed to involve refusing to pass budgetary measures while repeatedly voting to repeal the Affordable Care Act.

To be clear, I certainly do understand that there are good reasons for politicians to propose bills that do not currently stand a chance of passing.  Bernie Sanders's entire presidential campaign is predicated on the idea that we should be trying to advance proposals that are almost surely impossible to pass under current circumstances, and he has similarly sponsored bills in the Senate that were dead in the water.  Similarly, Elizabeth Warren's "Tax Filing Simplification Act of 2016," which I endorsed recently, has no chance of going anywhere, especially given the anti-tax and anti-IRS fever that has gripped the Republican Party for the last generation or so.

Of course, Sanders and Warren are in the minority.  If minority party members were not allowed to propose long-shot policy suggestions, their job would boil down to voting against whatever the majority proposes.  In the extreme, once it was clear which party had the majority, the other party would not even need to show up at all.  (Committee hearings can be a different matter, of course.)  Being an effective minority party, however, involves not only looking for compromises with the majority, but also being politically aggressive by highlighting one's priorities in contrast to the majority party's agenda.

I suppose that one could say that the House Republicans (as well as Senators like Ted Cruz and Mike Lee) still think of themselves as the minority party, because they see so much impurity among their ranks.  Leading government shutdowns is one way to respond to that sense of grievance, but that did not work out very well.

And in any event, we should at least be able to evaluate the certain-never-to-become-law proposals from the standpoint of whether they are coherent on their own terms.  For example, I have argued that Warren's tax filing act is good policy, but even if one were to disagree with that assessment, her bill describes something specific that would change how the tax system works, which allows legal and policy analysts to assess the likely impact of that proposed law.

By contrast, the 60-plus votes to repeal the ACA are essentially a temper tantrum that has been going on for more than five years.  The rap on the Republicans, after all this time, is that they still have not said how they want the health care system to work.  They are not even willing to simply say, "Let's go back to where we were before," because they actually support the more popular aspects of the ACA (young adults on their parents' plans, no termination of coverage for pre-existing conditions, and so on).

Even the never-ending series of ACA repeal votes, however, is better than Republicans' nonsensical approach to tax policy.  Consider "HR 27 — Tax Code Termination Act," sponsored by Robert Goodlatte (R-Va.) (with dozens of Republican co-sponsors) and carrying the official title:"A bill to terminate the Internal Revenue Code of 1986."  It is a very short bill, which readers can access here.  What does it say?  Just what its title suggests: terminate the Internal Revenue Code (with exceptions for taxes paid mostly by working people, especially FICA payroll taxes), effective January 1, 2020.

Then what?  As I said, it is a very short bill, but Section 3 of the bill offers this helpful list:
The Congress hereby declares that any new Federal tax system should be a simple and fair system that—
(1) applies a low rate to all Americans;

(2) provides tax relief for working Americans;

(3) protects the rights of taxpayers and reduces tax collection abuses;

(4) eliminates the bias against savings and investment;

(5) promotes economic growth and job creation; and

(6) does not penalize marriage or families.
Thank goodness for that!  What about puppies and kittens for everyone?

The most that can be said, I suppose, is that the bill is designed to be a time bomb, putting a date certain on the time when Congress must pass a real bill that would actually achieve all of those wonderful things.  Without a drop-dead date, after all, it is all to easy to procrastinate, right?

But given Republican-led Congresses' recent history with deadlines, that is hard to take seriously.  This is the group, after all, that created the so-called Super Committee in 2011 to force a new budget deal, with a built-in disciplinary mechanism called "the sequester," which would create deep automatic cuts to both military and domestic discretionary spending if the Super Committee failed.

What happened?  The Super Committee failed, but these same Republicans ultimately decided that they would rather allow the supposedly unthinkable cuts to go into effect -- with, of course, subsequent efforts to undo the military-related sequestration cuts -- rather than actually respond to the disciplinary device as planned.

It is quite easy to imagine the same thing happening with the Tax Code Termination Act.  Rather than proceed in good faith in trying to craft a new tax system, the looming implosion of the tax system would simply become a bargaining chip for the most extreme demands that the Republicans could imagine.  A caucus that is willing to play debt-ceiling roulette over and over again, after all, has certainly shown its ability to court absolute economic disaster in the pursuit of their extreme policy agenda.

Such anti-tax pandering, moreover, is not a sideline of the current Republican majority in Congress.  It is their obsession.  The House recently advanced bills that are clearly aimed at stoking anti-tax sentiment among the Republican base.  (Note, unlike Goodlatte's nonsensical bill, which merely sits on the docket, these bills are currently being acted upon by Republicans in the House.)  H.R. 4890 would end bonus payments for IRS employees until a new customer service strategy gets implemented, which amounts to punishing the current employees of the IRS for the supposed sins of their leaders and predecessors. H.R. 1206 would "prohibit the hiring of additional Internal Revenue Service employees until the Secretary of the Treasury certifies that no employee of the Internal Revenue Service has a seriously delinquent tax debt."  That will help improve customer service at the IRS!  (Obviously, being delinquent on tax debt is a serious matter, but it is absurd to tie that issue to the IRS's ability to hire new workers.)

Is this merely a maneuver by back-benchers to show that they are as anti-tax as their supporters back home want them to be?  Speaker Ryan apparently does not think so: "We know that the IRS cannot be trusted to police itself.  That has been proven. Each time we uncover more problems, the IRS comes up with more excuses."  You know, like explaining reduced customer service by pointing to Republican-led budget cuts that make it impossible to staff taxpayer help lines -- cuts that even Ryan's staff accidentally conceded made the IRS's job impossible..  Excuses like that.

Moreover, if Ryan's claim that "the IRS cannot be trusted to police itself" has supposedly "been proven" by the IRS non-scandal scandal, then he is wrong even on his own terms.  The initial inspector general's report that started this whole Republican talking point, after all, showed that the IRS had in fact policed itself exactly as one should hope it would.  Higher-level IRS managers discovered that low-level employees were doing something wrong, and they put a stop to it.  They did not make excuses, and they did not defend the employees' misguided (but apparently well-motivated) decisions.  None of that matters to Ryan, of course, because even the top Republican in the House thinks that it is more important to score political points off the IRS than to deal with real problems.

The people's representatives are at work.

Wednesday, April 27, 2016

Animals, Altruism, and the Act/Omission Distinction

by Michael Dorf

A little less than two weeks ago, Cornell Law School hosted a "book celebration" for Professor Colb and me, in recognition of the publication of our book Beating Hearts: Abortion and Animal Rights. I have used scare quotes to reflect the fact that, as one of the speakers explained, in the academy scholars celebrate a book by engaging--and in some ways disagreeing--with the claims made in the book. That was certainly the case here. Each of the panelists, including moderator Brad Wendel, mixed (overly generous) praise for our book with substantive challenges. We are very grateful for that engagement by Prof. Wendel and by the two main commentators: philosopher Mylan Engel and law professor Deborah Tuerkheimer. Readers interested in the panel can watch it below or by clicking this link.

The format of the event had Professors Wendel, Engel, and Tuerkheimer speaking first, followed by responses from Prof. Colb and me. (There was also audience Q&A but it did not make it into the YouTube video.) Because we did not know in advance what the speakers would say, our responses were in the nature of counterpunching, and because the presentations by the speakers were so rich, our responses were necessarily incomplete. Accordingly, here I want to expand a little bit on one line of inquiry opened up by Prof. Engel. It chiefly concerns the act/omission distinction.

Prof. Engel read our defense of an abortion right, even with respect to sentient fetuses, as resting on the proposition that a woman who has an abortion is best characterized as engaged in an omission--a failure to gestate--rather than an act--affirmatively killing. I don't think that's quite what we say because, among other things, we say that abortions of sentient fetuses are presumptively immoral, absent a good reason for the abortion, whereas we wouldn't say that a failure to rescue is presumptively immoral. We also think that abortion differs from almost all circumstances in which one can either cause harm, prevent aid, or do nothing as a bystander, because a woman must either provide affirmative aid or harm her fetus/baby. There is no option of being a bystander. (Yes, I know that's too terse to explain the argument fully. You can read the book for more details!).

Nevertheless, Prof. Engel is correct in observing that in various places in the book we do rely on the act/omission distinction. For example, in explaining why we think there is an obligation to refrain from deliberately harming animals (absent a very good reason for doing so), we say that this obligation of non-harm does not entail affirmative duties to animals that are comparable to our affirmative duties to humans. E.g., the collective decision to subsidize health insurance for poor humans in our country does not entail an obligation to provide health care to wild animals in our country, just as it does not entail an obligation to provide health care to people in other countries. We distinguish between the things we do to others and the things we do for others. In drawing that distinction, we draw on our legal tradition and conventional morality.

Prof. Engel pushed back on this conventional view using an example proposed by Peter Singer that is a variant of a longstanding critique of the act/omission distinction. Suppose you see a person drowning. You could easily rescue her at no risk to yourself but it would mildly inconvenience you. Wouldn't we say that you should rescue her? The common intuition is that yes, you should, and that someone who fails to do so because he prioritizes avoiding a ten-minute delay in getting to work or avoiding having to change his clothes is not merely failing to engage in a laudable supererogatory act, but is an immoral monster. Thus, the argument goes, there is something more generally wrong with the act/omission distinction.

In my remarks in response during the book celebration I responded that if the act/omission distinction is generally wrong, then just about everybody who lives in a developed country is a moral monster. As between spending a couple hundred dollars on a smartphone and sending that money to a developing country to buy mosquito nets, clearly the latter would do more good. And without the act/omission distinction, there is no difference between failing to prevent human deaths from malaria and murdering people. Perhaps the act/omission distinction is just a rationalization, but if so, it is a rationalization without which we cannot even begin to pretend that we ever do the right thing.

Having said that, I should add that I am not fully comfortable with the proposition that the person who fails to rescue the drowning woman has only failed to engage in a supererogatory act. Partly that is because of the immediacy of the situation. The woman can be saved now by you, and if you fail to act, no one else will happen by in time to effect the rescue. But this immediacy is probably illusory. In theory other people could provide those mosquito nets, but  right now each marginal dollar that you spend on something for yourself other than subsistence could do a lot more good rescuing people in the developing world.

One possible way out is to point to the evidence that much aid from nations, individuals, and NGOs in the developed world to the developing world is wasted or worse, counterproductive. But this argument points to reforms in the way aid is given by countries or to studies in effective altruism, not to selfishness. Only an a priori radical libertarian would think that there is never any way to do anything helpful for others. If simply throwing money at problems is unhelpful, it does not follow that spending on one's own consumption of luxury goods will magically maximize the wellbeing of others.

Moreover, I share Professor Engel's sense that some acts for others are more than mere charity. I do not want to say that societies that provide public education and health care for people who cannot otherwise afford education and health care in the private market are acting above and beyond the call of duty. I share the sense that we have affirmative duties to others.

We might be able to justify the idea that we owe affirmative duties (like education and health care) to our fellow citizens as agent-relative duties. In the same way that I owe special duties to my children that I don't owe to my neighbor's children, so living in a community--whether a village, a state, or a nation--may impose affirmative duties to the other inhabitants of that community. To be sure, this calls for some difficult line drawing. For example, are undocumented immigrants within the relevant community? And why isn't the relevant community the community of all humans on Earth?

I don't have a comprehensive answer to this set of puzzles, but, to return to one of the ways in which the issue arises in our book, I don't think it's controversial to say that we can owe special duties of aid to humans that we don't owe to animals. Put differently, taking the interests of animals seriously with respect to our negative duties does not swamp us with affirmative duties to animals that crowd out the possibility of greater aid to humans.

Tuesday, April 26, 2016

Skepticism About Hillary Clinton From An Unexpected Source

by Neil H. Buchanan

Last week, I explained why I am supporting Hillary Clinton for president, rather than Bernie Sanders.  Although I did not state the argument in this way, I was ultimately saying that too many Americans do not understand adjectives, specifically the modifier "democratic" in front of the word "socialist."  Sanders's quite accurate self-description as a Democratic Socialist should not scare people, but it does.  And that could cost Democrats both the White House and the Senate, in a year when Republicans are doing everything possible to lose on an epic scale.

Therefore, when Newsweek titled my piece, "Nation Isn't Ready for What Bernie Sanders Supports," that was accurate partly as a matter of substance but mostly of form.  As much as I would like people to be in favor of single-payer health care and the rest of Sanders's agenda, and as much as it appears that majorities or pluralities of people do favor the progressive agenda when presented on an item-by-item basis, it seems unlikely that Sanders's political revolution could win the battles that it would need to win, largely because conservatives could so easily demagogue against "socialism."

Even so, I understand the disappointment of Sanders's supporters that this is not their year.  I offered the somewhat bleak solace that life under a Hillary Clinton presidency would be the ultimate in diminished expectations: when you imagine that not much good will happen, every good thing that does happen will be a pleasant surprise.  That is not as good as watching a progressive revolution while it is happening, but it is better than life under President Name-a-Republican.

Nonetheless, I also understand that some people feel viscerally negative about Clinton -- not just by contrast to a more progressive alternative, but as a matter of having negative feelings about Clinton herself.  Here, I want to look at three anti-Clinton statements that I recently came across:
-- "I cannot trust her. ...  I feel like she can be bought on anything."

-- "Even if she has good intentions, her mind is not really geared toward people like me.  It’s geared toward people who are going to help her out."

-- "I do not believe anything that Hillary Clinton says. ...  I have come to believe that Clinton ... has no fundamental beliefs other than that she should be President."
The first two statements above were from Sanders supporters in Pennsylvania, as quoted in a New York Times article from the campaign trail.  The third quotation is from a person whose opinion I generally respect: me!  I wrote those (and even harsher) words eight years ago, when I was explaining why I supported Barack Obama over Hillary Clinton for president.

How do I respond to those three comments today?  Actually, the first two are relatively easy, and even 2008 Neil Buchanan would have agreed with my response below.  My own change of mind is, however, perhaps a bit more interesting to explore.

The first two statements are ultimately about the trust issue, which polls consistently show to be a big problem for Clinton.  In the end, I agree with Times reporter Jill Abramson, who was quoted in Nicholas Kristof's recent op-ed saying that "Hillary Clinton is fundamentally honest and trustworthy."  Kristof correctly pointed out that, although Clinton can be her own worst enemy, the narrative that she is untrustworthy makes no sense.  It is, if anything, proof that the Republican attack machine has succeeded in throwing enough dust in everyone's eyes to make Clinton appear to be something that she is not.

And the claims that Clinton "can be bought on anything" and that her mind is "geared toward people who are going to help her out" are, I think, simply wrong.  Taking large campaign donations from corporations (which I think she should not have done), and accepting big speaking fees from Wall Street banks (which reflected, at the very least, an unexpectedly poor ability to sense political danger) are not proof that she is being "bought," much less that she could change her views to fit the agenda of the people who pay her money.

Instead, Clinton is simply the candidate of choice for certain people who have liberal-ish views on various issues, and who have a lot of money.  Those people do worry me, and I hope that their influence in a Clinton White House will not be as strong as it was during her husband's or Obama's presidencies.  But that is not a matter of being a bought-and-sold politician.  For better and worse, Clinton is fundamentally what in other countries would be called a neoliberal, a person who starts from the assumption that a narrow, technocratic notion of "economic efficiency" is the proper goal of public policy, even when the goal of that policy is supposed to be liberal.

Both Clintons, after all, were movers and shakers in creating the Democratic Leadership Council (DLC), which spawned the anti-labor "New Democrats" who turned the party sharply to the right in the 1980's and 1990's, and who still exert influence on the policy debate through well-funded groups like Third Way, which continue to claim that Democrats need to be essentially Republican-lite.

When I said in 2008 that I could not trust Hillary Clinton, I was saying that I did not take her seriously when she mouthed progressive-sounding policy positions, because I thought that she was saying whatever was necessary to win the nomination while still harboring the DLC's sellout agenda that had led the Democrats so far to the right (only to find the Republicans running even faster and farther to the right).  So the worry in my mind has never been that Clinton was for sale, but rather that her commitment to progressive policy goals seemed to be opportunistic.  What is different now?

I am a strong supporter of organized labor, and in particular of school teachers.  The Obama Administration has continued the disappointing DLC-inspired treatment of unions as useful sources of election support that can be taken for granted when governing, and the Obama Department of Education has been especially disappointing on teachers' issues.

That recent history should, and did, make me especially skittish about Clinton on these important issues.  One thing that I think has become clear, however, is that Clinton is actually willing to take a stand against the teacher-bashing agenda that has become not only de rigueur on the right but popular among some big Democratic donors as well.  When Randi Weingarten, one of the most important teachers' union leaders in the country, both endorsed and defended Clinton, that meant a lot.

Hillary Clinton has spent her life surrounded by two types of people, those who genuinely think that the Democrats should be a center-right pro-business party, and those who disagree but think that that is the best that we can hope for.  I was never sure where Clinton fit in, but the past eight years have offered sufficient evidence that she is a liberal/progressive who has been conditioned to be incredibly timid.

This is one of the reasons that I am glad that Bernie Sanders has been so successful on the campaign trail this year.  Although it is surely true that Clinton will do some things in the next six months (and, I hope, the next eight years) that will have me grinding my teeth, she is a politician who knows how to read what the public can support.  And Sanders has shown that there is a much wider political audience for left-leaning policies than Clinton (and many other Democratic leaders) ever thought possible.

What I would say to the 2008 version of me, then, is that Clinton's political instincts have turned out not to be careerist, although there is clearly a lot of that at work with any politician.  She has, instead, shown over the last eight years that she is willing to respond to calls for policies that do not fit into the neoliberal mold.

What has impressed me the most, however, is the growing awareness of just how fearless Clinton can be.  Last Fall, when yet another Republican-led committee was trying to continue to exploit the Benghazi tragedy (specifically with the goal of harming Clinton's electoral chances), Hillary Clinton responded with an eleven-hour-long Iron Woman performance that still takes my breath away.

A President Sanders or a President Clinton will face a continuing onslaught of exactly those kinds of attacks.  Even though Clinton's embrace of a more left-leaning policy agenda has been somewhat hesitant, therefore, it is easy to imagine a Clinton presidency in which some good things happen, and in which the new president deals as well as possible with the Republicans' ceaseless attacks and obstructionism.

Clinton's track record is long and uneven, but I now believe that her heart is in the right place, and she will not wilt under the inevitable onslaught.  I am still hoping for the political revolution to take place, but in the meantime, Clinton's personal strength and political skills will allow her to help the Republicans continue to destroy themselves, leading the country toward the next stage in our political development.

Monday, April 25, 2016

Doubling Down on the Benefits of an Equally Divided Supreme Court

By Eric Segall

Last week, I published a piece in Salon arguing that our current even-numbered, equally divided (as a matter of political party affiliation) Supreme Court is not only not a bad thing for the country but in fact a very good thing. With eight Justices divided along party lines, I argued, the Justices on both sides would be far less capable of carrying out a partisan agenda, would need to compromise much more with each other to get things done, and, in the long run, would likely issue more moderate decisions less infused with personal politics and values. I pointed to the current RFRA litigation, and the Court’s supplemental order desperately trying to achieve a compromise to avoid a four-to-four tie as an example of that kind of behavior.

I knew I was arguing against the conventional wisdom. Interestingly, I received generally positive feedback from folks of quite different political persuasions, such as Sandy Levinson and Ed Whelan, who both thought it was worthwhile to think about ways to reduce the ability of the Justices to affect our politics.

They were a minority, however, as most people whom I heard from thought that we need an odd number of Justices to resolve circuit splits in the lower courts (a tie vote in the Supreme Court has no legal effect), and, in any event, although Congress could constitutionally fix the number of Justices at eight, there would be no realistic way to make sure going forward the Court was equally divided among Republicans and Democrats, liberals and conservatives.

As to the first objection, the Justices only take 75 cases a year now, which means that circuit courts have the effective final say in 99% of federal cases and, even in those rare cases involving circuit splits, the Court will relatively rarely divide four-to-four.

But what about those few cases a year like abortion, affirmation action, and voting rights where the Justices will divide equally? I agree there may be some pain but, like with the contraception case, if the Justices know that 4-4 ties are the way of the future, they will likely work hard to find a compromise. In any event, circuit court judges are no slouches, they are much more pluralistic than the Justices, and perhaps having different rules in different parts of the country will serve to shed light on the pros and cons of the various policy debates.

The second objection is much harder to overcome. An even number of Justices on a Court with a majority of Republicans or Democrats would not further the purposes of my proposal, so the Senate would need a way to ensure a four-to-four balance. In my first draft of the Salon piece, I advocated that Congress abolish Justice Scalia’s seat, which it could clearly do, and then enact an internal Senate rule that, absent a three-quarters vote of all Senators, a retiring or deceased Justice cannot be replaced by a nominee from the retirees’ or deceased’s political party. That rule would not formally prevent the President from nominating whomever she wants but the Senate could refuse advice and consent for any and all reasons, including the requirements of its own internal rules.

Friends who read that draft thought that the proposal could be gamed by nominees not identifying their political party or even affirmatively mischaracterizing their party affiliation. Readers also thought that the proposal would require nominees to identify themselves as members of one party or another, which would eliminate independents and be unfair to the nominees. And, of course, the current Senate cannot bind future Senates, even by internal rule.

There are responses to these objections. What are the odds really of an independent being nominated and confirmed anytime in the near future anyway? And a nominee trying to game the system by hiding or changing his political party affiliation would be easily identified. Moreover, no proposal is perfect, the Senate has age-old rules it does follow over time, and there could be a political price to pay to change course after years of success with a non-partisan Court.

But, mostly, I want to say that thinking about the benefits of an even numbered, equally divided Supreme Court tells us something important about the institution separate from the question of how to implement the idea. For most of the last thirty years, the constitutional results in politically charged cases (the ones most likely to divide along partisan lines), depended on two people, Justices O’Connor and Kennedy. And, for the last ten years, Justice Kennedy has dictated the rules in most of those cases. Is that truly a better system of government than dispersing that decision making authority among twelve different circuit courts of appeals made up of far more diverse judges than the nine sitting on our highest Court (turns out many appellate judges did not go to Harvard or Yale and are from the middle part of the country). Moreover, why is it so important that there be an even number of Justices if law, not personal preference, plays an important role in generating decisions? Finally, if there are eight Justices divided along party lines who can’t agree on a particular result, might that show that we don’t need this particular political/legal institution to say “what the law is” for all fifty states? Are we so sure we want to all live in Justice Kennedy’s (or the next swing Justice's) America?

Friday, April 22, 2016

Andrew Jackson as a Window Into Today's Republican Economic Orthodoxy

by Neil H. Buchanan

One of the most talked-about topics of the past week has been the Treasury Department's announcement that former President Andrew Jackson's image will no longer appear on the front of the $20 bill.  Starting in 2030 (or, one hopes, much sooner than that), the face of Harriet Tubman will instead be reproduced on the front of the twenty.

Understandably, most of the commentary on the issue has revolved around questions of race and American history.  The Democratic Party has recently been involved in a reassessment of its icons, with the long tradition of "Jefferson-Jackson Day" political events coming under special scrutiny.  Jefferson's slave ownership and related matters are troubling, while his defenders claim that his views were more complicated and need to be evaluated in their time.  (I take no view on that issue here, because I have not read enough of the relevant history to form an opinion.)

But Jackson's history is much more straightforward and lacking in nuance: He was not only a slave owner but a vicious bigot who carried out genocidal purges of Native Americans (the Trail of Tears being Jackson's brainchild).  Which means that the current political analogies between Jackson and his defenders is too obvious to ignore.  As Paul Krugman noted in his NYT column today, Jackson was "a populist who campaigned against elites but was also, unfortunately, very much a racist, arguably an advocate of what we would nowadays call white supremacy. Hmm. Does that make you think about any currently prominent political figures?"

Krugman goes on to discuss the historical significance of keeping Alexander Hamilton's portrait on the $10 bill, which makes for very interesting reading.  Here, I want to focus on the economic side of Andrew Jackson's views.  As many commentators have noted, Jackson was a particularly poor choice to be celebrated within our modern currency system, because he hated paper money and was fully committed to gold and silver as the only "real money."

Anti-paper-currency populism has a long history in this country.  It is an odd and uneven history, of course, given William Jennings Bryan's famous "Cross of Gold" speech in 1896, although even that speech was merely a call to use silver as well as gold to back U.S. currency.  Still, the Ron/Rand Paul anti-Fed types (now fully supported on this issue by Ted Cruz ) are the obvious heirs to Jackson's retrograde economic views -- and, in far too many cases, to 21st-century versions of his other views.

The people who hate today's Fed use many of the same arguments that Jackson used against the Second Bank of the United States, which he shut down during his presidency.  That decision was economically disastrous and was followed by a financial panic immediately after Jackson left office.  ("Panic" was the 19th century term for a severe economic depression.)  It was not possible to develop a modern economy without a modern, non-metallic financial system, but Jackson did his worst to hold back history.

Yesterday, a reporter from PolitiFact contacted me with a surprising question.  Is Ben Carson correct, she asked, that "Andrew Jackson was the last president who actually balanced the federal budget, where we had no national debt"?  I had seen Carson on "The Daily Show with Trevor Noah" earlier this week, so I knew that he has been trying to stay in the public eye.  I had not known that he was jumping to Jackson's defense, but I guess I should not have been surprised, given everything we know about Carson.

In any case, the PolitiFact reporter sent me a link to a website that is run by the Treasury Department, "TreasuryDirect."  I am quite familiar with that website, because it is the go-to source for data on federal debt.  What I had not known was that the site also includes a page with some brief historical commentary regarding the national debt in the 19th century.  There, we learn that Jackson indeed was the only president whose term included a time when the national debt was zero.

Even so, the reporter published a column late in the day yesterday that correctly refers to Carson's statement as "accurate but needs added context, which is our definition of Mostly True."  The added context included some statements that I provided in an email.  Indeed, the main PolitiFact page that provides a link to the column about Carson describes the statement as "Mostly True" but (calling me an "expert," which will make my mother happy) quoted me as saying that Jackson's debt repayment was a "one-time gimmick."

My larger point was that what modern Republicans think of as a huge achievement, paying off the national debt, was not only a gimmick but an object lesson in why people should not be so obsessed with the debt.  

Before expanding on that point, I must take a moment here to note that debt obsession is not limited to people like Carson, or even to Republican politicians more generally.  The TreasuryDirect narrative itself includes this: "The Jackson administration ended with the country almost completely out of debt!"  Note the exclamation point: Wasn't it great, the author seems to say, that the country once had no debt at all?!

No, it was not great.  The TreasuryDirect page confusingly jumps between 1835 and 1837 in its description of events, but the bottom line is that Jackson's big achievement was the direct result of "liquidat[ing] the Second Bank of the United States, returning the government’s original investment plus a profit. This resulted in a huge government surplus of funds."

In my response to the PolitiFact reporter, I offered this analogy: "What Jackson did was the equivalent of a CEO selling all of the company's computers to pay off the company's debt.  No CEO would view zero debt as a sensible goal in the first place, but even one who did want to make that happen would know not to do something so utterly ridiculous."

Everyone knows that the government -- or any business, family, or other economic entity -- can sell assets for cash, but once assets are gone, they are gone.  That is why I called Jackson's move a one-time gimmick: You cannot liquidate the same asset every year and use the money to pay for the government's operations on an ongoing basis.  You could sell the Statue of Liberty ... once.  For a lot of money, perhaps, but not more than once.  Swapping non-cash assets for cash does not increase the country's net worth.

But Jackson's move was even worse than simply selling assets.  The particular asset that he liquidated was, after all, the Second Bank of the United States.  The only way to try to turn that gimmick into a long-term financial plan would be to create and then liquidate a central bank every year.  Guess how well that would work?  Moreover, for Fed haters, the point is not to revive and kill the central bank every year, because the only way the Fed has any market value is by having actual power, which is exactly what the gold bugs hate most.

As the PolitiFact article points out, the national debt did become positive again immediately after Jackson's gimmick.  That is because Jackson did not even do what fiscal conservatives claim that everyone should do: set up the government to run a balanced budget every year after the debt reaches zero.  (Carson, like many people who like to rant about the government, clearly does not understand the difference between deficits and debt.)

Applauding Jackson's one-shot move thus amounts to saying that it is good policy to bet the nation's monetary future on "a barbarous relic" -- gold -- which is crazy on its own, but also that he was fiscally smart because he papered over deficits by liquidating a huge government asset without changing the underlying spending and taxing patterns of the country.

As I say in the PolitiFact article, it is actually a very good thing that the country did start borrowing again.  The history of the Industrial Revolution in the United States, after all, is written in debt.  Both governments and businesses borrowed heavily -- from foreign sources -- to build roads, canals, railroads, factories, dams, bridges, and everything else that turned the U.S. into an economic power.

What worries me is that the article then says that I argued "that it is not always desirable to bring debt down to zero."  No, it is never desirable to bring debt down to zero.  The one time the federal government did so, monetary and fiscal chaos inevitably followed.  Doing so today would be even worse, yet that is exactly what many Republicans, from the most establishment figures to Tea Partiers to Donald Trump, say we must do.  (I say "many" because some do seem to want to balance the budget without paying down the debt, which is still a bad idea, but better than the pay-it-all-down obsession.)

The knee-jerk defense of Andrew Jackson from current conservatives probably is driven mostly by their automatic defensiveness about anything to do with racism.  Yet a closer look at Jackson's economic ideas shows that he was the forerunner of the worst policy impulses in today's Republican Party.

Thursday, April 21, 2016

An Important Consolation for Sanders Supporters

by Neil H. Buchanan

I do not generally think of myself as being in the prognostication business, but it turns out that I do often write down what amounts to predictions.  "If Congress does this, then the following good or bad things will happen."  "President Obama's decision on that other issue will have no effects one way or the other."  And, in my economist mode: "Given what we now know, the economy will tank within the year."

Sometimes these predictions are right, and sometimes I am wrong.  (On the economy, I tend to be very pessimistic -- or, to paraphrase Paul Samuelson's line from a famous Newsweek column, I have successfully predicted nine out of the last five recessions.)  I have rarely been as off-base, however, as I was on March 1 of this year, which was Super Tuesday.  In an essay that was mostly about Donald Trump's dishonesty and the Republican Party's dysfunction, I took only a few moments to comment on the much-more-predictable Democratic race:
"This year's Super Tuesday primaries will surely play out as planned on the Democratic side.  Bernie Sanders will not drop out tomorrow, but it is at this point all but impossible to imagine anyone but Hillary Clinton as the Democratic Party's ultimate nominee.  From this day forward, Clinton will be trying not to alienate Sanders's supporters, instead looking for ways to harness their enthusiasm for November, even as she cruises to victory.  The only interesting question left for Democrats is the choice of Clinton's running mate."
As Rick Perry would say, "Oops."  Although Clinton's big win earlier this week in New York removed all doubt about her eventual nomination, she has hardly been cruising.  Moreover, my supposition that Clinton would be spending the remainder of the primary season playing nice with Sanders and his supporters has turned out to be spectacularly wrong.  The campaign has become flat-out nasty on both sides, and I can only imagine that Clinton dreams of the day when the news cycle turns to her choice of a nominee for Vice President.

Based on everything that I have read, both the Clinton and Sanders camps think that their opponents are to blame for the unpleasantness.  Like everyone, I have my opinions about who is more to blame, but that is not ultimately very important.  I am, however, surprised by the intensity of the vitriol, because I do not see a big enough gap between the two candidates' substantive views to justify what we are seeing, and because neither candidate seemed inclined to be gratuitously negative when this all began.

To be clear, I would choose Clinton to be the party's nominee.  I say this not only with some reluctance, but with a genuine sense of surprise.  I have long been a critic of Bill Clinton's triangulating presidency, along lines similar to those that Sanders has been repeating during this campaign, and I have also worried that Hillary Clinton would be an even more enthusiastic triangulator than her husband.  If anyone was going to embrace a non-Clinton candidate in this year's race, it should have been me.

Moreover, the Sanders policy agenda is largely my policy agenda.  Attacking inequality (tax the rich, increase the minimum wage, and so on), criticizing big money in politics, supporting funding for higher education, reining in Wall Street, enacting single-payer health care, and opposing military interventions?  Sign me up!

True, I have criticized Sanders for playing footsie with the Rand Paul anti-Federal Reserve crowd.  (Professor Dorf and I co-authored a column on the Huffington Post on that subject, summarizing an argument that we have laid out in a forthcoming law review article.)  But as a statement of policy aspirations, Sanders should be an easy choice for a progressive like me.

Unlike the progressives who have gone with Sanders, however, I have been unable to convince myself that his candidacy would be good for the Democratic Party or for liberalism in general.  His answer to the question, "How will you get anything done?" is always, "We need a political revolution in this country."  Yes, we do, but it is not happening this year, and if Republicans win the White House and/or maintain control of the Senate, things will become much worse than they would under a Hillary Clinton presidency.

I actually can imagine Sanders winning in a general election (especially given his possible opponents), but even if he did, I think he would make it much less likely that the Democrats could re-take the Senate.  One of the key races is in Ohio, which has one of the Republican incumbents who is trying to position himself as a moderate who is out of step with the Trump/Cruz party.  Senator Portman would dearly love to be able to say, "We might have a socialist president!  Vote for me to keep him in check.  And remember, I support gay marriage, so I must not be a typical Republican."

That is purely a political calculation, and I might be as wrong about that as I was in predicting a post-Super Tuesday era of good feeling among Democrats.  On the substance of policy, however, I am genuinely concerned about Sanders.  Although I am strongly put off by Paul Krugman's tone, there is much to be said for Krugman's claim that Sanders does not really have much to say beyond his slogans.  There has been a nasty spat among establishment and non-establishment economists regarding the plausibility of Sanders's economic forecasts, and I am again surprised to find myself agreeing with the establishment economists when they say that Sanders is being far too optimistic.  (I would support the policies under more plausible forecasts, but I do object to Sanders's implausible claims.)

As a positive matter, I now think that there is reason to think that Clinton has changed her views in ways that I can confidently support.  She is appropriately being called out for her views in the past, and I am glad that she is not getting a free pass.  But the upside of criticism is supposed to be that the person who is being criticized is able to respond and update her views as appropriate.  And Clinton's current views are -- quite sensibly -- not the same as her views twenty years ago.

Again, I say none of this with naive faith.  Clinton comes with a lot of baggage, and I understand why many people have the uneasy sense that she will change her views again in the future.  Even if I am wrong in warily supporting Clinton, however, the fact is that she is going to be the nominee.  And at this point, there seems to be genuine uncertainty about whether Sanders's supporters will be able to support Clinton in the general election.  I honestly do not see why.

"The Nightly Show with Larry Wilmore" has become a gathering place for Hillary Hate from the left.  Last night, for example, the discussion panel included Susan Sarandon, whose left-leaning views reasonably drew her to Sanders in this campaign.  But the acrid ugliness of her remarks was astounding.  Even Rory Albanese, the head writer for the show who has made his distaste for Clinton abundantly clear for months, ended up feeling compelled to challenge Sarandon and the others, asking if they would really say that they would let a Republican win rather than Clinton.

At this stage of the process, of course, emotions are still running high.  Sanders's supporters have not had time to process the end of their dream.  It seems very likely that most of them will be able to come around and deal with harsh reality, when the time comes.  The Clinton people have thus far not done themselves any favors in trying to smooth that transition, and lingering anger from their attacks on Sanders might well cause many of his people to sit on their hands, but much of the current ugliness is surely a passing moment.

There is, moreover, a paradoxical silver lining for the young people in whose hearts Bernie Love so understandably bloomed.  (Aren't mixed metaphors fun?)  The Obama years demonstrated what happens when we get excited about transformative leaders.  Obama was actually, as I have argued many times, a Clintonian triangulator extraordinaire.  On economic policy in particular, he disappointed over and over again.  The problem is that he was viewed as a genuine liberal, giving Republicans the opportunity to block his initiatives and then to say that every disappointing thing that has happened in the past seven years is proof of The Failure of Liberalism.

Hillary Clinton is not running as a transformative, revolutionary politician.  She is trying to make a virtue of incrementalism, and as far as it goes, I think she makes a good case.  But everyone knows that she (like any Democratic president) will face intransigent opposition from Republicans.  When things fail, it will be because -- and everyone will know that it is because -- Clinton could not get the Republicans to budge.

To put it differently, the only surprises during a Clinton presidency will be upside surprises.  She will likely accomplish a few things that progressives will like, but not many.  What she will not do is tarnish progressivism, because Sanders's candidacy has made it crystal clear that she is not a progressive.  Unlike Obama, Clinton cannot be held up as proof of a lie, because unlike Obama, Clinton's election will not have been built upon an unfulfillable dream of transformation.

Hillary Clinton will preside over something that is much better than any Republican alternative, and more importantly, any failures on her watch will not undermine the longer-term changes that Sanders and his backers support.  The country (and, it turns out, the Democratic Party) is not yet ready for what Bernie Sanders supports, but it will get there.

The best that we can do now is to get from point A to point B.  As uninspiring as it might sound, being the candidate who promises to be as good as the moment allows (and nothing more) is often exactly what we need.  Hillary Clinton is that candidate.

Wednesday, April 20, 2016

The US v Texas Oral Argument, the Cotton Letter, and NAFTA Withdrawal

by Michael Dorf

In my Verdict column for this week, I discuss Monday's SCOTUS oral argument in United States v. Texas. After discussing standing and the merits, I argue that, in the event that the Court does not simply divide 4-4 and affirm without opinion, the case provides an opportunity for some well-chosen dicta affirming that there are constitutional limits on the president's exercise of prosecutorial discretion. I explain why both progressives and conservatives should be able to get behind such a proposition.

Here I want to address a different question about unilateral executive power, concerning the president's authority with respect to foreign affairs.

Let's begin by recalling that a little over a year ago, 47 Republican Senators, led by Oklahoma's Tom Cotton, issued an open letter to the leaders of Iran warning that the nuclear deal that was then being negotiated was a mere executive agreement, and thus subject to revocation by a future president with a mere penstroke. The Cotton Letter (as it came to be known) was greeted with mostly negative attention. In a new article published in Political Science Quarterly, I try to mine the Cotton Letter for broader lessons about the relation between international law and domestic U.S. law.

The link above takes you to the PSQ website, but the article is behind a paywall. Accordingly, I will very briefly summarize the article for those of you whose .edu internet access does not make all knowledge freely available to you, before moving on to one further issue. Here's the summary:

1) On its face, the Cotton Letter makes a fundamental error, confusing the mechanisms by which international agreements become effective as between sovereigns with the mechanisms by which they are implemented in domestic law.

2) Whether or not the author and signers of the Cotton Letter are confused about the relation between inter-sovereign effectiveness and domestic implementation, foreign sovereigns have reasons to care about the latter, not just the former.

3) In particular, foreign sovereigns appropriately should focus on two issues: a) whether the mechanism by which the obligation is made renders it automatically effective domestically; and b) how "sticky" the obligation is.

4) I then categorize various forms of international agreements and obligations by automaticity and stickiness. I discuss self-executing and non-self-executing treaties, congressional-executive agreements, sole executive agreements, customary international law, and non-binding agreements. (The Iran deal is probably best understood as a non-binding agreement, but its explicit references to UN Security Council implementation make the categorization complicated.)

If you have access to PSQ, I urge you to check out the article. If not, sorry.

Now, onto a related question about stickiness. Suppose that Bernie Sanders becomes president and renounces NAFTA (or as he pronounces it, NAFTER). Could a president do that? As a matter of international law, withdrawal is typically governed by the agreement instrument itself, and NAFTA authorizes withdrawal by any party six months after giving written notice.

The relevant provision doesn't specify how a party withdraws, but I agree with Julian Ku, who suggested in 2008 that because the international dimensions of NAFTA are an executive agreement, the president can withdraw without seeking congressional approval. Indeed, the general rule is that a president can withdraw from a treaty without any sort of congressional approval, even though Senate approval was required to make it operative in the first place. It would seem to follow a fortiori that a president can withdraw from an executive agreement without congressional permission.

If President Sanders, President Trump, or some other president were to withdraw from NAFTA, would that be the end of NAFTA? Surprisingly, maybe not.

NAFTA became domestically effective via a statute, the NAFTA Implementation Act. I am not a trade law expert, and so what follows could be wrong, but my reading of the Implementation Act suggests important gaps. In various places, the Implementation Act specifies that various otherwise-operative provisions will no longer be in effect in the event that a NAFTA country withdraws from NAFTA. Presumably these provisions were written with Canada in Mexico in mind, but it is possible that they have the U.S. in mind as well. The interesting thing--and this is the point that I could be completely wrong about--is that the Implementation Act appears to indicate that even if the president were to withdraw from NAFTA, some provisions of the Implementation Act would remain in effect. Put differently, it appears (at least to my untrained eye) as though the NAFTA Implementation Act doesn't simply implement NAFTA. It has provisions that are just freestanding legislation.

I'd be happy to be corrected if I'm wrong about that analysis, but for now, let's assume that I'm right. Certainly it is conceptually possible for a piece of legislation that is styled an implementation act to specify that in the event that the whole international agreement blows up, some provisions of the implementation act would nonetheless remain valid. Under these circumstances, "implementation act" would be a misnomer, but there would be no larger difficulty.

What should the default rule be? Suppose the president signs an executive agreement with the heads of state of one or more other countries. To get around any errors I may have made regarding NAFTA, let's call this imaginary executive agreement SHMAFTA. Congress then passes the SHMAFTA Implementation Act, and for over two decades, both SHMAFTA and the SHMAFTA Implementation Act are in effect. Then the president withdraws from SHMAFTA, after giving the required notice. Suppose that the SHMAFTA Implementation Act is silent on the question whether it or any part of it will or will not remain in effect following presidential withdrawal from SHMAFTA. Should that silence give rise to a presumption that Congress wants the Act to cease having effect following withdrawal from SHMAFTA? To a presumption that Congress wants the Implementation Act to continue in effect? To no presumption at all but simply to the use of ordinary (if inadequate) tools of statutory construction?

I don't think there is any SCOTUS case law on this question, and I can see arguments pointing in each direction. Commonsensically, it seems that the point of the SHMAFTA Implementation Act is to implement SHMAFTA. Once the president withdraws, there's nothing to implement. Thus, the Implementation Act is tacitly conditional on the continuation in force of SHMAFTA.

Yet it's at least somewhat significant that the president and Congress chose to proceed via a congressional-executive agreement rather than via a treaty. If the president had entered into a non-self-executing treaty with the advice and consent of the president, and Congress enacted implementing legislation of a non-self-executing treaty, it would be apparent that Congress indeed meant the legislation to be dependent for its effect on the continued force of the treaty. This would be especially clear if, per Missouri v. Holland (which is still good law, at least just barely), Congress only got the power to enact the implementing legislation in the first place by operation of the treaty. But by proceeding via a congressional-executive agreement in reliance on Congress's Article I, Sec. 8 power to regulate foreign commerce, there is at least a plausible argument that Congress intended the legislation to stand on its own.

Or one might say that courts ought to examine an Implementation Act provision by provision. Some provisions will make little sense in the absence of the international agreement. Others will be more clearly freestanding. A no-presumption approach could well lead to the conclusion that some but not all of the provisions of the SHMAFTA (or NAFTA) Implementation Act actually implement the agreement.

How these questions are resolved could matter if a President Sanders withdraws from NAFTA, but Congress (with Republicans still in control of the House) does not repeal the NAFTA Implementation Act.

Tuesday, April 19, 2016

Is Pastafarianism a Religion?

by Michael Dorf

Last week, Federal District Judge John Gerrard issued a very thoughtful opinion in the strange case of Cavanaugh v. Bartelt. Cavanaugh is a Nebraska inmate who sued various prison officials on grounds that they had discriminated against him on the basis of his religion: FSMism (for Flying Spaghetti Monster) or Pastafarianism. Judge Gerrard rejected Cavanaugh's claims, which were based on the state and federal constitutions. Although Cavanaugh's complaint did not specifically cite the Religious Land Use and Institutionalized Persons Act (RLUIPA) as a basis for relief, Judge Gerrard construed it as also raising a RLUIPA claim, but dismissed that claim as well. The opinion addresses a number of issues, but the central point is that Pastafarianism is not a religion; instead, it is
a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education. Those are important issues, and FSMism contains a serious argument—but that does not mean that the trappings of the satire used to make that argument are entitled to protection as a "religion."
I agree with that conclusion, but with some qualifications.

One might fault Judge Gerrard's opinion for confusing two questions: (1) Did the people who created Pastafarianism intend it as a religion or as a parody of religion? and (2) Does this particular plaintiff sincerely adhere to Pastafarianism as a religion?

Even if the answer to question (1) is no, if the answer to question (2) is yes, then the plaintiff would have stated a religious claim. To be sure, read generously, the opinion does not confuse the two questions. Judge Gerrard notes that "Cavanaugh has not alleged anything about what it is that he actually believes." Perhaps that could be read to imply that if Cavanaugh had alleged that he sincerely believed the tenets of Pastafarianism--gravity is explained by the FSM's noodly appendages, modern humans are descendants of pirates, there is a beer volcano in heaven, etc.--then Cavanaugh would be entitled to the legal benefits that attach to religious belief notwithstanding the satirical intentions of Pastafarianism's creators, but that in the absence of any such allegation, Cavanaugh should be presumed to have adopted Pastafarianism for the same reason that its founders created it: to parody more conventional religions, especially fundamentalist ones.

But even if so, why should belief matter? It is not uncommon for adherents to traditional religions to continue to observe religious rituals even after they have "lost their faith." Of course, in those instances, they are affiliated with a bona fide religion--a set of principles, practices, and communities that take themselves seriously, even if some particular members do not believe all or even any of the religion's tenets. Under RLUIPA, an imprisoned Muslim or Jew who identifies as such even though he has (either temporarily or permanently) lost his faith, would be entitled to Halal or Kosher food. The sincerity question would be whether the inmate sincerely feels a religious obligation to observe the religious dietary laws, not whether he also believes in various religious tenets.

Still, it seems like tradition is doing a lot of the work here. Consider modern liberal denominations of traditional religions, like Unitarian Universalism (UU), which has "no shared creed." Were it not for the historical relationship of UU with protestant Christianity--the paradigm religion in the United States--it is not entirely clear that UU would qualify as religion. The problem would not be that UU is a parody or satire. Clearly UU is meant seriously in a way that Pastafarianism is not. Instead, the problem is that the tenets of UU are--but for their pedigree--indistinguishable from secular ethical humanism. The same might be said about other liberal religions, like Reconstructionist Judaism, which "proposes a religious humanist theology [that] sees God as a power or process working through nature and human beings."

As Nelson Tebbe has argued perceptively, there are contexts in which it is appropriate to treat nonreligious ethical obligations as tantamount to religious obligations, even under current law. In other words, in some circumstances, nonbelief in any religion should count as religion. Something like Tebbe's view has sometimes prevailed. For example, in construing the conscientious objector statute in United States v. Seeger in 1965, the SCOTUS defined a religious belief as any belief that "occup[ies] the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption." But there are also suggestions in the case law and the scholarly literature to the effect that our various statutory and constitutional provisions protect only religious belief as such, full stop. Insofar as these suggestions reflect the law, they confer advantages on members of religious communities with historical ties to traditional religions, even when their tenets do not substantially differ from beliefs held in common by secular communities.

We might see a similar dynamic with respect to the question of seriousness. By contrast with Pastafarianism (which is barely more than a decade old), suppose that archeologists discovered that some well-established religion was actually founded by a con artist or jokester who didn't believe a word of the holy books he fabricated. (No, I do not have any particular religion in mind, although skeptical claims about the founders of various religions have been made from time to time.) But this religion has been around for many years, and has adherents who sincerely believe its tenets, so by now it makes sense to treat it as a bona fide religion, regardless of its origin story. If someone claims to be a member of this religion, courts don't ask for proof that he or she really believes in the religion; the presumption is now in favor of sincere belief.

How long will it take for Pastafarianism to achieve this status? Maybe less time than you think. New Zealand already recognizes Pastafarian wedding ceremonies. One just took place. Were I a Pastafrian myself, I might say something like this: May the happy couple be embraced by the warm love of His noodly appendage, and let us all say "ramen."