Tuesday, February 28, 2017

Another Round of Professor-Bashing from the Right

-- by Neil H. Buchanan

Donald Trump's recent attacks on the press -- calling the news media "the enemy of the American people" -- are appalling and Stalinesque, and people are right to criticize him harshly for taking his attacks as far as he has.  The degree to which he is willing to vilify a free press is indeed alarming.

Degree does matter, but we must not forget that none of this is new as a matter of kind.  Indeed, this is simply another example of Trump doing what Republicans have been doing for years.  It is just that he is willing to do so at a higher volume and even more crudely.

Republicans have been attacking the press for decades, perhaps out of a group-reinforced belief that the press is truly biased but also because they have found that they can "work the refs" and constantly succeed in securing generous coverage from cowed reporters who bend over backward to prove their open-mindedness.

This is all part of a larger strategy in which Republicans have been busy demonizing all institutions that present any opposition to their agenda.  In the 1970's and especially the 1980's, they went after labor unions, shamefully abetted by the Bill Clinton-led triangulators.  At this point, the Republicans are trying to finish off the job by attacking public employee unions and civil service protections.

Beyond the press and labor, the Republicans are also frothing against the universities with ever-increasing intensity.  From perpetual-candidate Rick Santorum's claims about "liberal indoctrination" of our gullible youth to tallies of the party affiliations of university professors, there is a well financed army of people whose job it is to claim -- loudly and repeatedly -- that universities are illegitimate because they are too liberal.

The most clumsy Republican responses to this claim include recent proposals in some state legislatures to dictate quotas of Republicans that must be hired to teach college classes.  This idea has already been widely mocked, so here I will simply note how odd it would be to serve on a hiring committee in which the conversation included something like this: "OK, so we're hiring three people this year, all of whom have to be Republicans.  Let's take out our lists of Republican physicists, Republican English literature scholars, and Republican forensic anthropologists."

Or we can come at this from the opposite direction.  If the idea is that the academy is an essential institution in any modern society -- certainly a claim with which I enthusiastically agree -- and thus that we must have ideological balance in terms of partisan politics (which is not true, but bear with me here), I propose that we require similar partisan balance in the hiring and promotion of military officers, FBI agents, CEO's of publicly traded corporations (which benefit from laws limiting their legal liability and so on), and members of the clergy (another institution with important social influence).  (See the letter from John A. Mazis here, who makes this point.)

Can you imagine the fun in watching the board of XYZ Corp. as it tries to hire a new chief executive?  "We need someone who knows our business and is a turnaround expert for companies with aging product lines.  But remember that there are too many Republican CEO's nationwide, so let's go out and get the best Democrat we can find!"  For the same reason that Eastern State U.'s Sociology Department should not be required to inquire into the political affiliation of applicants for an opening in Comparative Development, XYZ's new CEO candidates should not be judged by their partisan leanings.

Part of the problem, I think, is that conservative professionals have long felt resentment at the social isolation that their political views created for them when they were in college.  A recent profile of Supreme Court nominee Neil Gorsuch, for example, noted that he was a committed conservative on his Ivy League campus who felt so stung by the resulting social rejection that he founded a conservative campus newspaper and sought out like-minded friends.  (He put himself, if you will, in a bubble, yet I have not heard any conservatives chiding him for doing so.)

Such groups frequently complain that their rights are being trampled by "political correctness" on campus.  But that attempt to claim victim status does not work, because the right to hold unpopular views is most definitely not the same as the right to be liked in spite of your views.  If you want to mock environmentalism and denigrate people who are struggling for their civil rights, you can do so.  You are also going to be widely seen as a jerk or worse.  That is how life works.

In a column last month, I noted that the new all-purpose conservative insult -- calling liberals, especially college students, "snowflakes" who cannot stand the realities of life -- actually applies best to Trump's voters, who are sure that the world is against them and that they deserve not to be called racists even as they voted for an openly bigoted candidate.

This applies more broadly to the supposedly hard-nosed conservatives who constantly complain about how unfair life is to them.  Jeff Sessions said during his confirmation hearings to become Attorney General that his feelings were hurt by accusations of racism.  Some (but not all) conservative professors complain that campus culture is unfair to them, because they are not cheered when they speak their minds.

If anyone should have some sympathy for these conservative academics, I am probably the prime candidate.  As a left-leaning economist who later moved into legal academia, I certainly know what it is like to feel stifled by a professional culture that rules certain ideas and approaches out of acceptable conversations, journals, and departments.

In economics, an ideological purge took place starting in the 1970's (or perhaps a bit earlier).  In a short span of time, it became impossible to publish -- and thus to hold jobs in even lower-ranked economics departments -- unless one accepted a very narrow methodological approach to economics.  That approach was, moreover, inherently conservative.

The process was sometimes anything but subtle.  Some universities went through very public spectacles in which they drove those who rejected the new orthodoxy out of the academy.  Some, like the University of Notre Dame, actually created new economics departments to fill with true believers, shunting the apostates aside into underfunded and unsupported programs that were then supposed to die quietly.

Most economics departments, however, simply took what they surely viewed as a sensible I-see-the-trees-and-it's-not-my-job-to-care-about-the-forest approach to hiring and promotion, knowing that a job candidate who rejected rational-choice theory would never be published, which meant that there was no point in hiring her.

Graduate students quickly adapted to the new reality, and by the 1980's, we all knew the paths to professional success.  Required courses in economic history and "history of thought" (that is, economic methodology) became electives or were dropped outright.  Anything viewed as "soft" -- economic development, gender issues, and so on -- was dead in the water.  As one example, Harvard's only tenured "radical" economist in all of those years had been tenured before he rejected the professional orthodoxy.

In 2014, I wrote a series of columns about how economics was overrun by this new conservative wave.  (The last of those columns is here, with links to early columns in the series.)  When I say "conservative," however, readers might be confused, because nearly everyone is aware that New York Times columnist Paul Krugman is politically liberal even as he is the most highly decorated mainstream economist of his generation.

Krugman's existence, however, does not disprove the claim that economics was taken over by an inherently conservative dogma.  Yes, there are still economists who identify as Democrats and whose work can support liberal-ish policies.  But the implicit political requirements of modern economics are still deeply conservative, with liberal results viewed as "special cases" that must be justified by extraordinary steps and additional work in order to pass professional muster.

So, do I think that academic decision-making processes can be overtaken by non-merit-based group-think?  Absolutely.  I have seen it up close.  And the conservatives won in a rout.  When I was a graduate student, those of us on the outside of the new orthodoxy accurately complained about the anti-intellectualism and narrowness of that dominant approach.  It is no fun to be a part of a disadvantaged minority.

Does something like this happen in fields outside of economics?  I suppose that there must be examples, but we are not going to be able to identify them merely by counting party affiliations of professors.  And we will similarly not be able to say that there is a problem simply because people in the non-dominant school of thought complain about the dominant school of thought.

Consider my current field, which is law.  Despite the wailing from some of my conservative colleagues, it is not difficult to find conservative professors who are quite successful in the legal academy.  Unlike economics, where heretics were effectively dispatched to a tiny number of low-ranked universities, we can find prominent conservatives in every law school in the country, including the highest-ranked ones.

And this is nothing like tokenism.  Campus-level "federalist societies" -- a national conservative coalition that is heavily funded by right-wing foundations -- do not lack for potential faculty sponsors.  The right-leaning faculty themselves are able to publish in all of the top journals, to be hired and tenured and promoted by higher-ranked law schools, and to serve in Republican administrations.

Again, I am sure that conservative law professors grind their teeth when the general conversation among their peers leans to the left.  (Which is not to say that we sit around talking politics all the time.  Mostly, we are just teaching our classes and writing our articles.)  But that is not the same as being systematically discriminated against.

I doubt that most Republican legislators who are attacking academic freedom are doing so because they have had conversations with conservative law professors.  More likely, theirs is a simpleminded response to the conservative mythology in which all professors are Marxist crazies.

Certainly, a large chunk of the hate mail that I receive derives its energy from a belief that I must be bad simply because I am a professor.  Emails arrive that begin, "Only someone who is ensconced in a communist university ... "  (For some reason, enraged emailers particularly like the word "ensconced.")  It is as simple as professor = liberal = evil.

Even so, I am frequently surprised by my conservative colleagues' attempts to foment the anti-university backlash on the right.  In any working environment, it is not as pleasant to hold minority views as it is to be roughly in sync with one's colleagues.  But the American university -- and especially the American law school -- continues to be a place where minority views are present.  The only exception to this statement with which I am familiar is in economics, and that is an example of conservatives systematically driving out nonbelievers.

In any event, we need to remember the context in which all of this is taking place.  Republicans are feeling the wind at their backs, and they sense that they can now even more fiercely attack the institutions that do not reliably support their programs.  Academia has always been one of their most important targets.  Turning universities into Republican-friendly spas is one more way in which they intend to consolidate power.

Monday, February 27, 2017

Europe’s Refugees Aren’t a Threat to America, But the Refugee Panic Is

by Margaret A. Moody

[Editor’s Note: The following post is by Margaret A. Moody, who practices immigration and international law. In 2015, she served as a full-time consultant to the UN High Commissioner for Refugees (UNHCR) Northern Europe, in Stockholm, Sweden. In an earlier post on her own site, Ms. Moody explained how and why the ostensibly temporary measures contained in President Trump's (stayed) January 27 immigration Executive Order 13769 would likely end up being permanent. Because the anticipated EO that will supersede EO 13769 might incorporate the latter's reliance on the list of seven predominantly Muslim countries (also discussed in a recent DoL post by Diane Klein), Ms. Moody's analysis of EO 13769 will remain highly relevant. As a lawyer in private practice, Ms. Moody does not speak for UNHCR.]


Europe’s Refugees Aren’t a Threat to America, But the Refugee Panic Is

When I arrived in Stockholm, Sweden, in the fall of 2013, the grumbling about refugees was just beginning.

By the time I left Sweden at the end of 2015, expertly printed swastika decals were a common sight in our high-rent neighborhood north of Stockholm and in the city’s tony shopping district of Östermalm.  Stickers reading “Nordisk Ungdom—2000-talets nationalister” (“Nordic Youth—21st Century nationalists”) dotted lamp posts and crossing signal buttons across the city.  

Shortly after I returned to the U.S., an estimated 100 neo-Nazis and soccer hooligans descended upon Stockholm’s Central Station, its answer to Grand Central Station.  Yielding Billy clubs, they attacked Afghan refugee boys known to hang out there.  The police were outnumbered.

Still, many Swedes and other Europeans recognize the humanitarian issues at stake.  But alarmist rhetoric is common, and new laws make it harder for asylum-seekers to be reunited with family.

Europe isn’t sending America her refugees.  She’s sending America her refugee scare.

The anti-refugee panic has crossed the Atlantic and has now settled in America.  Menacing portraits of refugees in Europe rationalize radical changes in U.S. immigration and visa law.

First, little-understood changes to the U.S.’s Visa Waiver Program were rushed through as an eleventh-hour rider to the Omnibus Spending Act in the final days of 2015.  Now those revisions have been employed to defend sweeping changes introduced by the January 27, 2017, executive order.

The Visa Waiver Program allows qualified citizens of Europe and a few other countries to travel visa-free to the U.S. for tourism or certain business purposes.  This is how a Frenchman who wants to see Manhattan or the Grand Canyon comes to the U.S.  The 2015 changes mean that any citizen of a European country who is also a citizen of a designated country—currently Iran, Syria, Iraq, Yemen, Sudan, Somalia, and Libya—has to apply for a visa at a U.S. consulate rather than traveling on the Visa Waiver Program like he used to.

To be clear, citizens of designated countries who have no European citizenship have always had to apply for a visa.  They’ve never been eligible for the Visa Waiver Program.  What the changes did was to impose a visa requirement on, for example, Swedish citizens who are also Iranian citizens.  This means that an Iranian-born Swede—imagine a businessman or an academic (and there are many)—who had previously traveled to the U.S. visa-free on his Swedish passport must now apply for a visa on the sole ground of original Iranian nationality.

The chaos of the current refugee crisis obscures the well-established European populations of Middle Eastern origin.  Hundreds of thousands of Swedes, Germans, French, and British are of Iranian, Iraqi, and Syrian descent.  The significant Iranian-European population dates to the 1979 Revolution, when there was a mass exodus from Iran.  Many people of Syrian origin have lived in Europe for forty years, and Iraqis for nearly as long.  These longtime Europeans tend to be well integrated.  They are hairdressers, school teachers, government employees, tailors, business people, artists, academics, and authors.  And many have siblings or cousins in the U.S., whom they visit regularly.

The Visa Waiver Program changes of 2015 never made any sense.  They were based on misunderstandings of the demographics of Middle Eastern-origin populations in Europe, the incompetent misapplication of foreign countries’ citizenship laws, and a disregard for international law.

Worse, the 2015 changes are now pointed to to justify the recent executive order banning refugees and virtually all nationals from seven designated countries from entering the U.S. or receiving any immigration benefits.

To understand the wrongheadedness of these changes, we need to understand the facts about Europe’s refugee crisis, terrorism in Europe, and how refugees get European citizenship.

The recent major terror attacks in Europe have not been carried out by refugees.  And they haven’t been carried out by nationals of the seven designated countries, either.  The Paris attackers were mostly French and Belgian citizens of Moroccan extraction, though the collaboration of one Syrian is suspected.  Even assuming a Syrian participated, it appears he did not obtain refugee status.  The attacks in Nice and Berlin were both perpetrated by Tunisian nationals.

Sound familiar?  The flagrant mismatch between the banned nationalities and the nationalities of the perpetrators of major terrorist attacks in the U.S. has been widely noted.  There’s a similar mismatch to the nationalities of the perpetrators of the recent atrocities in Europe.

To be sure, Europe’s recent refugee crisis has been chaotic.  The sheer numbers of asylum-seekers have overwhelmed government and civil society.  Recent refugees from the Middle East and Africa have reached Europe by land or by sea, generally not at ports of entry.  Yet even under those chaotic conditions, terrorism attacks by refugees in Europe have been extraordinarily rare.  (And no, rioting—violent and criminal—in Europe’s ghettos is not the same as terrorism.)

The situation in Europe is a far cry from the organized, deliberate refugee resettlement in the U.S., overseen by the Department of State and numerous other agencies.

Then there’s the other fear behind the European refugee panic.  What if a would-be terrorist who slipped into Europe in the chaos of the migration crisis—the proverbial bad apple—hops on a plane to the U.S. from Europe?  That’s implausible.

No major refugee-receiving European country has citizenship laws so loose that a refugee who has come in the turmoil of the crisis could have obtained citizenship yet—or anytime in the near future.  No European citizenship means no European passport and no visa-free travel.  For a refugee to get European citizenship, first he must get refugee status, which takes months or years.  Then he must fulfill that specific European country’s naturalization requirements, including five to eight years of permanent residency, plus a laundry list of other criteria.  Those normally include a high degree of language proficiency and no criminal record.

By the time a recent refugee to any European country manages to get the citizenship of a European country, he will have had a long period of stable residence in Europe.  European police and intelligence agencies will have had ample opportunity to do background checks.  And even so, as any knowledgeable U.S. Department of State or Department of Homeland Security official could attest, the U.S. can easily prevent air travel of individuals whose particular life histories disqualify them from travel to the U.S.

Conflating European citizens with the governments they fled before finding safe harbor in Europe is to turn international human rights law on its head.  The smear that they pose a security threat to America is absurd.

The assessment of whether an alien is admissible to the United States must be done on an individualized basis, as required by law.  Broad assertions that all refugees or all nationals of certain countries pose national security threats are ludicrous.  Serious counter-terrorism experts understand this.

Ask Your Doctor About The Wellspring Committee (and Nominee Neil Gorsuch)

By Diane Klein

If your television viewing habits are anything like mine, you have seen, and wondered at, what appears to be a commercial for Judge Neil Gorsuch.  The 30-second spot, called "Jane," features Jane Nitze, identifed as someone who "Clerked for Judge Gorsuch" and a "Former Obama Administration Attorney."  Bathed in golden light, she speaks in reassuringly persuasive and dulcet tones about her former boss, now Trump's nominee for the Supreme Court.

Like so many other political events of the past year, this is "unpresidented."  Who is behind this ad, and what could be its purpose?  It's not as if television viewers can vote for or against Gorsuch's confirmation.  That's up to the U.S. Senate.  So what's going on?

At a glance, once you realize Gorsuch is not a "candidate," the ad is most reminiscent of those now-ubiquitous pharmaceutical ads, the ones that generally include the words "ask your doctor about...", and a rapid-fire list of often-chilling side effects.  Ads for prescription drugs touting magical (or maybe) genuine cures for ailments real and imagined ("restless leg syndrome," anyone?), direct you to your doctor because as we all well know, you can't just buy Xeljanz, Latuda, or Cialis over the counter (much less a cancer drug like Neulasta, advertised during the Presidential debates). These prescription drugs must be prescribed by a physician.  But the purpose of the ads is to send sufferers scurrying into doctors' offices demanding these drugs by name.

And it works.  Which is why, in 2014 alone, the pharmaceutical companies spent $4.5 billion on "direct to consumer" (DTC) advertising in the U.S. (and $5.2 billion the next year). To be sure, these ads are controversial.  Before 1997, they were banned in the U.S., and the EU, Canada, and much of the world continue to do so for many of the same reasons: any "educational" value for consumers is outweighed by the likelihood of deception, misinformation, and confusion, resulting from the advertisers' actual motive: selling drugs. and making money. Some argue that the cost of advertising actually contributes to the high cost of drugs.  Even the American Medical Association opposes DTC advertising, because of the way it alters the relationship between doctor and patient.  What purports to educate and inform is only intended to persuade and sell.

The concerns about the Gorsuch ad, though related, are distinct.  After all, when Pfizer advertises Viagra, there's no mystery about who is paying for the ad, or why.  It's much less obvious who paid for "Jane," or what their agenda is (other than Gorsuch's confirmation, obviously).

If Jane Nitze were hawking legal pads or Legal Zoom, the Federal Trade Commission would regulate the advertisement. When it comes to product and service endorsements, the FTC rules first state that "An advertiser may use an endorsement of an expert or celebrity only so long as it has good reason to believe that the endorser continues to subscribe to the views presented."  That's no problem - there is no reason to think Nitze will change her mind about her former boss.  But the FTC also demands, in 16 C.F.R. Section 255.5, that "When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed."

We know the connection between Jane Nitze and Neil Gorsuch.  But what is the connection, if any, between either of them and the people who funded this ad? We have no idea.

Jane Nitze's credentials are as solid-gold as Trump's toilet fixtures (we imagine), if not more so.  She earned a physics and statistics degree at Harvard College, and then a law degree from Harvard Law School, where (like Barack Obama) she served on the Law Review.  In fact, her liberal establishmentarian cred is even better than advertised - after clerking for Gorsuch at the Tenth Circuit, she was a Supreme Court clerk, to Justice Sonia Sotomayor, who officiated at the former Jane Kucera's 2013 wedding to Paul Kendall Nitze, son of a former assistant administrator of the EPA (under Clinton), and grandson of Paul H. Nitze, a secretary of the Navy and founder of the School of Advanced International Studies at Johns Hopkins.  Jane then went to the Office of Legal Counsel at the Obama DOJ (as advertised), and is now a Climenko Fellow and Lecturer at the Harvard Law School.

Most of this can be learned from her CV and her New York Times wedding announcement. But it's much harder to find out about the folks behind the TV commercial.  Because political advertisements are not regulated by the FTC, it takes a little more digging to figure out who put this on the air.  As the ad ends, the words "ConfirmGorsuch.com" appear in bold black letters, while nearly-illegibly at the bottom of the screen, it says "Paid For By Judicial Crisis Network" (which also holds the copyright on the webpage ConfirmGorsuch.com).

The Judicial Crisis Network (JCN), a 501(c)(4) entity, was founded in 2005 as the "Judicial Confirmation Network."  Back then, its goal was to support Bush's nominees (now Justices Roberts and Alito).  Over time, funded by the Koch Brothers, it morphed into an entity dedicated to blocking Merrick Garland's nomination, spending millions in that effort, but not before becoming deeply involved in judicial races all over the country.  JCN's money mostly comes from the Wellspring Committee, also a 501(c)(4) "dark money" operation, that is not required to disclose its donors, and can spend effectively without limits.  Secretive but influential right-wing activists Ann Corkery and Robin Arkley are central figures, as are Corkery's family members. The funders of the Wellspring Committee take full advantage of the tax laws, and consider their judicial spending - $10 million for Gorsuch, more than $2 million of which is for the televison ad buy - nonpolitical "social welfare" spending (as is required for entities of that type).

Though it is far from clear, the real purpose of "Jane" seems to be not so much to induce action - but rather, inaction.  It says to the liberal, middle-aged viewer, the Obama voter, the woman, the Hillary voter (do you imagine a female former Gorsuch clerk was chosen by accident?), that there's nothing to worry about with Gorsuch.  It's not so much "ask your doctor about Viagra," as it is, "Don't bother writing to your Senator about Gorsuch."  Like all political tactics designed to reduce participation in the new Trump Era, that should give us pause.  It's not so much the drug, as it is the side effects.

Does Jane Nitze know, or care, who paid to produce the advertisement in which she appears, and to put it on the air?  Or about the other causes in which they have been involved?  Does she believe that the way the Merrick Garland nomination was handled, and JCN's role in that, was proper?  We don't know.  Had she chosen to write an opinion piece in support of Gorsuch, she would have joined a wide-ranging coalition of scholars, lawyers, and Court-watchers who similarly endorse him.  This television ad feels different.  Given JCN's history, as a lawyer, a law professor, and a fellow Harvard College alum, I don't much like Nitze in the role of Tom Hagen to Gorsuch's Johnny Fontane.

Saturday, February 25, 2017

Finally, Someone Else asks "Is the Supreme Court a Court?"

By Eric Segall

Readers of this Blog, or those who follow me on Twitter or elsewhere, probably know that I've devoted much of my career, and a full length book, to the argument that the Supreme Court is actually not a "Court," as we generally define that term. My essential thesis is that judges, in addition to not taking bribes and not hearing cases involving themselves or their family, must at a bare minimum take prior law seriously and in good faith when deciding cases. A person who resolves a dispute "all things considered" and without any regard for prior positive law would not be a judge but some other kind of governmental official. My view is that the Supreme Court, not being bound by prior law, and usually interpreting vague text and contested history, has over time and as an institution not taken prior legal materials seriously enough or consistently enough to warrant the label "Court."

Needless to say, this thesis has not made me popular among many of my colleagues and others who write about the Supreme Court. They see some truth in my thesis but generally argue I go way too far.

So imagine my surprise (and delight) when I awoke on Thursday morning to read a blog post with the title: "Is The Supreme Court a Court," written by Keith Whittington (a renowned originalist legal scholar at Princeton University), This is how the post begins:
Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half.... [W]e might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules. 
Professor Whittington goes on to argue that Supreme Court justices, for a variety of reasons including that they choose their own docket, usually decide only "hard cases." These are the kinds of disputes where the "answers are unclear," and which "push the boundaries of established legal understandings." The Court has a "steady diet" of these cases, which makes the Justices excellent fodder for political scientists who, Whittington argues,
love the Supreme Court [because] the justices display lots of behavior that looks like the exercise of policy-driven discretion. (Of course, the justices also benefit from occupying the court of last resort in the United States, which means that even apparently easy cases can be made hard by rendering the established legal rules no longer operative).
It doesn't have to be this way, Whittington says, because the justices could decide to hear more cases involving legal errors than nationally important policy disputes. But the justices "prefer to spend their time on the hard cases, where there are no clear legal answers. In those cases, the justices get to create legal answers.... These cases are chosen ... because they are useful vehicles by which the justices can make new law."

Whittington also mentions that there was a time long ago when the justices didn't write dissenting and concurring opinions like they do now, which also leads to more of a policy-making than dispute-resolution role. Whittington concludes that the justices think
it is the job of the Supreme Court to announce new law. The law does not truly exist until the justices say what it is. The Court does not engage in the judicial task of resolving disputes in accord with some pre-existing set of legal rules; it engages in a somewhat different task of issuing legal pronouncements that other courts will then use to resolve disputes. There are other bodies within our political system that perform that task as well. They are called legislatures.
I have a few quibbles with Whittington's post. I don't agree that the Court acts like a legislature because the justices cannot usually reach out and decide issues not brought before them (Citizens United, notwithstanding) and because the justices have life tenure and don't have to stand for re-election. Nor do I think the practice of writing separate opinions is as important as Whittington does. But where he and I appear to be in complete agreement, is that the justices view their role more often than judges should as setting national policy on hotly contested issues on an all-things considered basis (the justices would of course not accept that description).

I think the justices understand quite well that the cases they take and the decisions they issue do appear to many to be more legislative than judicial, which is why they go to such great lengths to pretend that text, history and/or prior case law support their decisions. But, of course, as I wrote in my book, that is the greatest myth of all.

Friday, February 24, 2017

Trump's Muslim Travel Ban 2.0 Will Be Magical

by Michael Dorf

According to a story in The Hill on Wednesday, the White House has decided to wait until next week to release a revised Executive Order (EO) to (presumably) replace EO 13769, which has been stayed in the courts. Exactly what the new EO will say remains to be seen, although, according to White House Adviser Stephen Miller, apparently it will have magical properties.

As recounted in The Hill story, on Tuesday Miller told Fox News that there will be “mostly minor technical differences” between the new EO and EO 13769, even as the new EO will be "new and different." The minor technical differences will somehow be "fully responsive to the courts," which, it bears remembering, have found that the challenges to EO 13769 are likely to succeed on the merits because the flaws in EO 13769 are substantial, not merely technical. Miller, who has no legal training, believes the magical new EO will square the circle because, as he told The Hill in an email, "though any changes are of course very technical and legal in nature, the significance of the changes will be quite substantial."

Suffice it to say that I have my doubts, and not just because Miller's word salad is self-contradictory. As I explained in a recent column, if the new order has a disparate impact on Muslims--as it surely will if it maintains the seven-country ruse that underlies much of EO 13769--then it will almost certainly be tainted by the same history of discrimination that led Judge Brinkema to enjoin EO 13769.

Meanwhile, in all of the litigation and speculation about the new EO, it is easy to lose sight of the nominal justification for the Trump policy. Both Trump's original December 2015 call for a "total and complete shutdown of Muslims entering the United States" and EO 13769 claim that the travel restrictions are to be temporary measures designed to give the administration time to tighten vetting procedures. That fact leads to an obvious question: What steps, if any, have the president and his team taken to review existing vetting procedures and design new ones?

In addition to imposing travel restrictions, EO 13769 directs the Secretary of Homeland Security, the Secretary of State, and the Director of National Intelligence to conduct a number of investigations and to begin implementation of various additional screening measures (such as use of biometrics and additional interviews for visas). The EO contains various time limits for the review and for the receipt of information from targeted countries.

Section 3(c) of EO 13769 suspends entry into the country of nationals of the seven majority-Muslim countries for a period of 90 days, ostensibly to permit the relevant actors to conduct their review of existing screening procedures and begin to implement new ones. How that period interacts with the other time periods in EO 13769 is not entirely clear but also not very important if, as strongly hinted, the new EO supersedes EO 13769.

It is impossible to glean the likely content of the new EO from Miller's double-talk but other sources indicate that it will probably maintain its basic shape while applying to a smaller category of people, expressly exempting green card holders and probably some other current visa holders. If so, a crucial test of the validity of the order should be whether it resets the clock to zero. If so, that would be strong evidence of bad faith.

How so? Let's suppose that the administration issues the new EO on Monday of next week, which is 31 days after the issuance of EO 13769. There is nothing in the fact that EO 13769 has been on ice since Judge Robart's ruling that should have prevented the Departments of State and Homeland Security (or anyone else in the administration) from undertaking steps to review existing procedures. To be sure, Section 3(c) of EO 13769 says that the reason for the travel ban from the seven listed countries is "[t]o temporarily reduce investigative burdens on relevant agencies during the review period," but this is what in technical legal terms is called bullshit.

For one thing, the review to be conducted is at the high levels of the relevant departments, not by the line officers who do the screening for visas. And in any event, there is no burden on those line officers due to travel to the U.S. by people who already have visas.

Now maybe the new order will address this obvious deficiency by exempting current visa holders, but if the point is to free up the time of the screening officers, then it ought to exempt all visa holders, i.e., all people whose entry won't pose any sort of burden for the officers now being asked (supposedly) to do extra work by reviewing the efficacy of existing screening procedures. If any category of persons holding current visas is not exempted from a travel ban, that will be evidence that the justification of freeing up people's time is nonsense.

Indeed, the freeing-up-time justification was always nonsense, which is why it hasn't tended to come up in litigation. The government has instead tended to say that the seven-country list identifies areas of extra security risk and that therefore, people ought not to be allowed in from those countries until the screening procedures have been tightened. This also turns out to be false, as the government has pointedly declined to offer evidence, in camera or otherwise, of what security risks are posed by the people targeted by EO 13769, but even if it were taken to be true, it would not preclude the review of screening procedures while the travel ban is stayed.

This brings us back to the timing issue. If the government has actually been using the time that has elapsed since January 27 to review screening procedures, then any version of the new EO that corresponds to Section 3(c) of 13769 ought to last for no more than 90 days minus the time that has elapsed since then. If the new EO is issued on Monday of next week, say, that would be 59 days. Each additional passing day before the issuance of the new EO should reduce that figure by one day.

Of course, even the reduced length of the ban is arbitrarily high. Trump has been able to receive intelligence briefings since May of last year. During any of the intervening nine months did he or any of his advisors seek information relevant to tightening screening procedures? That question won't be answered publicly, I'm sure, but we will be able to infer from the content of the new EO whether it really bears any relation at all to improving screening procedures with impediments to entry by a collection of mostly Muslim foreign nationals as a mere unfortunate side effect or whether, instead, those impediments are the raison d'être of Muslim Ban 2.0, just as they were for Muslim ban 1.0.

Thursday, February 23, 2017

Viewing Trump's Mess from Abroad

by Neil H. Buchanan

The rest of the world has been looking on with a combination of bemusement and horror as Donald Trump has made the transition from cartoonish reality-TV star to even more cartoonish American president.  By all accounts, Trump has managed to fascinate people around the world, although not in a good way.

As it happens, this is the last day of my most recent visit to Australia.  I was invited to be a research fellow at the Business School of the University of New South Wales in Sydney, where I have been living for the last six weeks.  Plans for this visit began to take shape last summer, when nobody thought that Trump would be president.

The timing of this worked out such that I left the U.S. on January 9, eleven days before President Obama's term ended.  The insanity of the presidential transition had not yet given way to the utter chaos of the Trump presidency.  Although I have been following the news in the same ways that I would if I had stayed home, my physical absence from the U.S. as well as daily interactions with non-Americans have given me a unique perspective regarding what has been happening.

In my time here, I have thought often about an underappreciated 1959 movie called "On the Beach," which starred Gregory Peck, Ava Gardner, and Fred Astaire.  Based on a Nevil Shute novel, the film is set five years in the future (1964), shortly after nuclear war has broken out between the U.S. and the USSR.  Peck is the commander of an American submarine that happens to have been stationed off the coast of Melbourne when the war broke out.

The movie thus shows people in Australia who know that they are doomed.  They know from reports (and the subsequent lack of response to attempts to communicate) that the nuclear holocaust has apparently killed everyone in the northern hemisphere.  Now, they are simply trying to live everyday life as normally as possible, knowing that they have at most several months to live before radiation poisoning makes its way into the air in the southern hemisphere.

The movie itself is quite interesting, but the reason I have been thinking so frequently about it during this trip to Australia is probably obvious.  Millions of people living on this island continent are waking up each day keenly aware that their fate is not in their hands, and they wonder whether the unhinged new American leader will mishandle relations with other powerful countries -- not just Russia but also China, which is even more important to Australia in terms of immediate political and social matters -- in a way that dooms Australians.

One way in which the Trump Effect could affect Australia is by warping domestic politics here.  There are Trump-esque nativist politicians who (like the leaders of right-wing populist movements across Europe) would love to create their own bigoted electoral wave to take over national politics.

At this point, however, indications are that this is unlikely.  Although Australia has certainly elected right-wing governments in recent years, and the country is dealing quite badly with a refugee crisis, the people here are mostly appalled by what Trump has been doing.

This was true even before the truly weird moment earlier this month when Trump decided to insult the Australian Prime Minister, Malcolm Turnbull.  This had the odd effect of making a very unpopular conservative prime minister a momentary hero, but it was even more troubling because Trump was obviously ignorant of how close and loyal an ally Australia has been to the U.S.

I was thus in the unexpected position of being in a foreign country that I would have thought should be completely "safe" in the sense of being a place where Americans would not be viewed with animosity.  Yet Trump managed to make Australians wonder whether the U.S. is still a reliable ally.

On my most recent trip to this side of the globe, I spent three weeks last May traveling in Australia and New Zealand, giving talks at universities in which I analyzed the U.S. election.  Only a day or two after I arrived, Trump had nailed down the Republican nomination, so the conversation was turning toward the contest between Trump and Hillary Clinton.  Now, we are on the other side of that unexpected outcome.

I have a strong aversion to what might be called taxicab sociology, in which an American writes a column based on a conversation with his taxi driver during a trip from a foreign airport to a luxury hotel.  It is far too easy to use one conversation as a vehicle to make a point that the American wishes to make, and the "local knowledge" provided by the cab driver is often suspiciously convenient.  For New York Times columnist Thomas Friedman, that style of writing has unintentionally become self-parody.

Not wanting to go down that path, I decided that it is essential to observe local responses here and only to take seriously any patterns that are unmistakable, not one-off conversations.  This is especially important in my situation, because of course the non-service workers whom I meet tend to be academics, whose political views might be unrepresentative of the country as a whole.

On the other hand, because Australia's population is highly urbanized (with something like half of the population living in just the three largest cities), it is less likely here than in the U.S. that staying in the cities would give one a misleading sense of people's attitudes overall.

Two things have jumped out at me during this trip and the one last May.  First, Aussies and Kiwis avidly keep up with U.S. politics in a way that I would never have expected.  And it is not just people who come to public lectures by American professors who are paying attention.  Local memes have emerged here based on Trump that are every bit as savvy as one would see in the U.S. (perhaps even more so).

For example, an All About Women festival in Sydney is being advertised with a poster of a cat pawing at two balls, with the catchphrase "I grab back."  Similarly, a restaurant owner wrote on his chalkboard: "Drinking beer on a hot day lowers your body temperature by up to 5 degrees!! #alternativefacts."

A nearby pub has a poster on a wall that looks like a shooting range target, with Trump's face drawn over it.  (As an aside, I confess that I felt the need to delete a photo that I took of that poster from my iPhone, because it is unclear what is going on at border checkpoints in the U.S. these days.  Ironic humor is probably a bad idea.)

The mockery of the new American president is visible everywhere, which brings me to the second pattern that I have noticed during my time here.  When I am interacting with anyone, the conversation goes something like this:

-- Aussie person: Sounds like you're from the States.  Where are you from?

-- Me: Yes, I'm visiting for a few weeks.  I'm from Washington, D.C.

-- Aussie person: Ah.  [Long, somewhat uncomfortable pause.]

-- Me: I have to say, I'm happy to be here these days.

-- Aussie person: Oh, thank god you said that!  It's insane, isn't it?

The conversation then involves the Australian excitedly telling me things about Trump that are especially egregious.  A few weeks ago, for example, one person said, "Did you hear that they shut down the Spanish-language version of the White House's website?  That's just petty."

Again, some of these conversations are with service workers.  Although workers here are not dependent on tips, there is a politeness that pushes against making a guest feel uncomfortable.  Therefore, I have asked some people what they would have said if I had indicated any pro-Trump sentiments.  To a person, they told me that they would have smiled and changed the subject.

Two women in a high-end store (who, if they lived in the U.S., would by age, race, and economic class be relatively likely to be Republicans) said that some Americans had been in the shop that morning talking about how excited they are that Trump is in office.  One of the Australian women said to me (while the other nodded), "What are they thinking?"

In fact, the only person I met here who is pro-Trump was a young American woman who is working in Australia for six months.  She told me that she had grown up in a red suburb of D.C., and she looked very uncomfortable when I said something suggesting that I was not a Trump fan.

I emphasize that this is not rigorous science, and I do not claim that it is.  What I find interesting, however, is the universality of the reactions to Trump.  Everyone with whom I have spoken seems to be fairly bursting to talk about what has gone wrong in America, and as soon as they discover that they are talking to someone who will not defend Trump, the floodgates open.  It is a friendly kind of conversation -- "Are things really as crazy as they look?" -- but it is unmistakably serious and sincere.

It is also completely understandable.  The future of Australia (and the world) continues to be profoundly dependent on what happens in the U.S.  If we go to war, they will probably again join us as an ally.  Either way, they know that they cannot control the things that could most affect them.

What seems most mysterious to them is that Americans did not prevent this from happening.  Many of us are just as mystified.

Wednesday, February 22, 2017

A Serious Proposal to Inform the President

by Michael Dorf

The events of the last several days suggest that the Trump White House, while not exactly the fine-tuned machine that the Maximum Leader touts, is behaving a bit more professionally than in its first chaotic month. On Monday, President Trump named a well-respected, not-at-all-insane general, H.R. McMaster, as National Security Adviser. Yesterday Trump acknowledged the existence of a spike in antisemitic attacks and unequivocally condemned them, while also condemning bigotry more generally. To give Trump credit for these acts is, of course, to grade on an unbelievably generous curve, but it's still a major improvement.

One hopes that the McMaster appointment means that there will be another voice of reason in the higher echelons of the administration so that policy is not made entirely by people in way over their head (Kushner) or working for the Dark Lord (Bannon). Time will tell, but there is reason to be skeptical. Tuesday also saw the release of two appalling internal guidance memos by the Department of Homeland Security that greatly expand the categories of undocumented immigrants who will now be targeted for deportation.

In addition to their cruelty, these guidance memos are not, shall we say, reality-based. One of them commits DHS to construction of Trump's Great Wall, beginning with this piece of justificatory fiction: "A wall along the southern border is necessary to deter and prevent the illegal entry of aliens . . . ."

The other guidance memo states that "[c]riminal aliens have demonstrated their disregard for the rule of law and pose a threat to persons residing in the United States," even as it prioritizes apprehension and deportation of "removable aliens who: (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense." That's right. Any criminal offense. According to Homeland Security Secretary Kelly's construction of the Dear Leader's will, someone who has been charged with possession of marijuana or has not even been charged but is--what?--believed by ICE to have at one point possessed marijuana or to have committed misdemeanor littering poses "a threat to persons residing in the United States."

Kelly's guidance memos should not come as a shock. They implement two executive orders (available here and here) that POTUS Maximus signed on January 25. Trump has justified those orders in turn by pointing to his campaign promises to "build the wall" and to get tough on "bad hombres" bringing crime and drugs from Mexico, but of course, the fact that Trump said something while campaigning hardly makes it true.

I am not so naive to believe that Trump could be induced to abandon his Tremendous Wall or his crackdown on undocumented immigrants by something as impotent as facts. Being a badass towards undocumented immigrants from south of the border and towards anyone suspected of being a "radical Islamic terrorist" were the twin pillars of Trump's campaign. (Wait, you say. What about misogyny? That is no doubt part of Trump's essence and his support, but he didn't expressly campaign on it. But see "nasty woman, such a").

Suppose you could lock Trump in a room for an hour, hold his attention per the eyelid trick of the Ludovico Technique (from the coincidentally appropriately titled film A Clockwork Orange), and expose him to experts explaining how stupid his immigration policy is. Still, Trump is almost certainly too committed to that policy to let it go.

However, there are many topics about which Trump is merely an ignoramus, not an ignoramus with a well-developed, albeit stupid and cruel, policy agenda. With respect to these areas of what we might call non-ideological ignorance, it is in nearly everyone's interest that Trump be better informed. The question is how.

We can begin with the observation that Trump spends MUCH more time watching cable news than even a regular person with a reasonably demanding job ought to. That explains some of his bizarre statements and tweets, including the belief that a terrorist attack had taken place in Sweden the night before Trump spoke at a rally because Trump had watched a FoxNews segment on immigration and crime in Sweden that aired the night before Trump's comments. Whether a riot that subsequently broke out in an immigrant neighborhood of suburban Stockholm vindicates the FoxNews story is beside the point. Even if Trump is only watching reliable reporting, he is getting way too much of his information from tv news aimed at a general audience than from policy experts aiming to inform him on precisely those topics he needs to learn about to make well-informed decisions.

To combat Trump's ignorance while leveraging Trump's status as a cable news junkie, John Oliver has created a series of short commercials featuring a tv cowboy that he has aired on shows Trump watches. Watch below (or, if you're getting this post by email, here).

Funny, no doubt, but even assuming Oliver means this to be taken seriously, it can only scratch the surface of Trump's ignorance. Thus, I want to propose something more drastic, to be implemented by the White House itself. (Pay attention, Reince!)

I propose that Trump be given his presidential daily briefing in the form of a half-hour video that El Jefe can watch each evening in the White House residence (either in his bathrobe or, per Sean Spicer's apparent preference, au naturel). The briefing "show" would be slickly produced and could even be designed to look like CNN or FoxNews, with "guests" who are really policy experts with different views arguing with one another. But it would be based on the professionals' sense of what the president needs to know, rather than whatever happens to be on tv. So, in a sense the tv briefing would be "fake news," i.e., it wouldn't be an actual news show, but it might go some way towards addressing Trump's distractibility.

One obvious downside is that to be fully effective, the tv briefing would have to include some classified information, which Trump might then inadvertently leak to the public. But of course he's already at risk of doing that. And finally, to be clear, this is a serious proposal.

Tuesday, February 21, 2017

Why Should Retirement Planning be Confusing and Expensive?

by Neil H. Buchanan

Notwithstanding Candidate Trump's promises not to cut Social Security, his enablers in the Republican Party have long salivated at the idea of privatizing our retirement system.  Given the utter chaos of the one-month-old Trump presidency, will the Republican true believers finally get their way?

If they do, there will be an endless number of questions that will need to be answered.  But the biggest question is what will happen when millions of Americans will suddenly be forced to deal with for-profit financial marketing companies that will be selling advice and products in the brave new world of private retirement accounts.

The experiences of other countries can give us some sense of what Americans would have to deal with in a post-Social Security world.  Here, I will explain the basics of what a privatization plan would entail, and I will then look at Australia and New Zealand to highlight one particularly costly aspect of any retirement system that forces individual investors to make what amount to life-or-death decisions about how to finance their retirements.

The failed 2005 Bush Administration effort to partially privatize Social Security is a good place to start.  That proposal involved diverting two percent out of the 12.4 percent total (employee plus employer) Social Security contributions that come out of every worker's paycheck (levied against annual incomes of up to roughly $120,000).

The Bush plan would accordingly have reduced guaranteed Social Security benefits commensurate with the reduction in tax withholding, and everyone would then have been responsible for choosing how to invest the two percent of their salaries every pay period.  This was unsurprisingly billed as "freedom of choice" rather than a trap or a burden, but no matter how we describe it, the bottom line is that people would have taken on investment risks that they currently do not have to face.

This column is not the place to rehash the debate over whether Social Security is going "bankrupt" or any such nonsense.  I have written about that particular scare tactic many times, most recently in a Verdict column in March of 2016.  I will return to that issue again in the near future, but for the purposes of this column, the question is not whether it is necessary to replace Social Security -- it isn't -- but what would happen if we did.

To simplify matters, let us imagine that the Republicans succeed in a full-on privatization of Social Security, not the camel's-nose-under-the-tent version from 2005.  In that case, a person who earns, say, $75,000 per year would have $9300 each year to invest.  What would she do?

In a system of pure free choice, there would be no rules beyond the requirement that $9300 untaxed dollars would have to be put into a savings account.  Because that kind of rule can be easily evaded by depositing the relevant funds on each payday and then withdrawing them the next day, there would have to be 401(k)-like rules that would force people to keep their money invested in their preferred savings vehicles until retirement.

There would also have to be rules determining which savings vehicles are permissible destinations for workers' retirement dollars.  Condo development schemes and junk bonds would be out, for example, to prevent people from being bilked.   People would also have to work through approved financial planning companies, to prevent fly-by-night operators from absconding with the funds.

It would be tempting to think that this is a simple matter of enforcing uncontroversial financial laws, at least in the sense that it is seemingly straightforward to describe how financial advisors are supposed to behave.

However, given that Republicans are hell-bent on repealing an Obama-written regulation requiring financial advisors to live by the standards of fiduciaries -- that is, to give advice that is in the interests of the clients, rather than recommending that clients' money be deposited into the funds that pay bigger fees to the advisors -- it is not at all obvious what the rules would be for the companies that would be permitted to handle the trillions of future dollars of retirement savings.

I have recently begun to study the retirement system in Australia, which combines a means-tested income support system with a large and relatively complicated system of private savings accounts, the latter of which is called the "superannuation" system.  The Australian system has very tight regulations of financial advisors, much tighter than Republicans in the U.S. would be likely to tolerate.  [Note: I updated the first sentence in this paragraph on March 23, 2023, to correct an error of fact in what I had written in 2017 about the non-superannuation support system.]

Even with those strong protections for savers, the Australian superannuation system is extremely expensive.  Taking account only of the direct fees that financial companies charge savers for managing their money, Australians pay on average more than one percent annually of the total funds on deposit.  (The study to which I am referring, written by researchers at the University of New South Wales in Sydney, seems not to be available online.)

This means that a worker with a reasonably healthy retirement account balance of $500,000, which sounds like a lot of money but is actually only large enough to replicate the standard of living of someone who earned roughly $50,000 in her final years in the workforce, would pay about five thousand dollars per year in fees to her financial institution.  Depending on how clever the financial institutions are, those fees would not necessarily be obvious to the saver.

Where is that money going?  Essentially, the people who are managing the investment funds are draining off part of people's retirement savings in the form of managers' salaries, overhead, and marketing fees.  (Social Security obviously has no marketing fees.)  This is why Wall Street has been so excited about privatizing Social Security.  It is the mother lode of potential fees.

But I have found that the most interesting aspect of the Australian system (and a similar one in New Zealand) is that it also requires the diversion of economic resources to create what the Aussies call "financial literacy" and Kiwis call "financial capability."  As a recent paper by three Australian professors explains, the governments of these two countries are putting serious efforts into trying to educate their citizens in how to be financially savvy retirement investors.

Although I used the anodyne phrase "diversion of economic resources" in the paragraph above, a simpler word is "cost."  That is, the governments of these countries are spending money to get people to learn how to maximize their retirement returns, and the people themselves have to spend time and effort (and money, because many of them still need to hire financial planners in addition to paying their investment fund managers) in an often futile attempt to learn the concepts of wise investing.

These costs are most definitely not included in the one percent estimate that I described above.  They are purely the result of people having to use their free time to learn how to invest, a task that many people (not just Down Under, but everywhere) find tedious and intimidating.

If people hate filling out tax returns, imagine how they will despise having to learn how to be savvy investors.  If nothing else, the stakes are much higher, because making mistakes with regard to retirement investments accumulate over a lifetime, whereas annual errors on tax computations do not necessarily repeat themselves.  Making errors in one's retirement savings decisions can mean the difference between a long and comfortable retirement and being too poor to live.

And we should remember that this is not a self-selecting group of people who are otherwise inclined to learn financial concepts.  This is everyone, and even very smart people can be very bad at dealing with these decisions.  For example, an Economics professor at Harvard confessed in a New York Times column in 2015 that he is a terrible retirement planner (regarding his own retirement savings beyond Social Security), even though he has all of the intellectual firepower and training needed to make savvy decisions.  He avoids thinking about it, and he is poorer because of it.

One way to deal with the reality that plenty of people will never become financially literate/capable is to set up default rules that allow them to avoid making decisions.  That, however, merely means that we could respond to the high costs of individual retirement planning by making the privatized retirement system look an awfully lot like Social Security -- hands-off systems in which deposits disappear into a set of legal rules that then spit out regulated retirement benefits in the future.

In my research on the Australian superannuation system, I plan to address the question of whether that country has already gone so far down this road that it would be too complicated to unravel the system and return to something like a Social Security setup.  I am honestly not sure what the evidence will show, which is why this will be a fun project.

We do know, however, that Americans who want to play the markets are already free to do so with any money that they do not spend.  People who either have no extra money to save or who choose not to become financially educated need not hassle with financial planners or investment companies, avoiding both the human cost and the high fees that non-Social Security retirement planning entails.

As I noted above, this column cannot take on every aspect of the privatization debate.  There are costs and benefits of Social Security, and there are costs and benefits of private saving/investing.  I am focusing here on the costs of private financial management, both because they are so high and because they come in many surprising forms.

The bottom line is that most people will fare much worse under a privatized system, but the Republicans do not represent most people when they rally for privatization.  They are trying to serve up a heaping helping of fees to their campaign contributors, and they do not care that most people do not want to be forced to fend for themselves in the financial jungle.  The rest of us, however, should care.

Monday, February 20, 2017

Trump's Taxes and the Return of the Corruption Premium

by Neil H. Buchanan

If guilt can be inferred from a suspect's efforts to cover his tracks, the Trump tax returns must surely be incriminating.  The very fact of Donald Trump's insistence on breaking with decades of precedent by refusing to release his tax returns -- starting when he originally announced his candidacy, and continuing even after his non-majority electoral win -- cannot help but raise suspicion.

Even so, we are necessarily left with little more than speculation as to what he actually has done that he thinks is worth hiding.  And because of its political salience, people who are not tax experts are wading into unfamiliar territory and making unsupportable claims about the Trump tax returns.

For example, in an otherwise solid analysis of Trump's authoritarian impulses, the conservative writer David Frum recently questioned Trump's claim that releasing the tax returns is unnecessary because Trump's required annual financial disclosure report includes everything the public needs to know.  Frum was quite right to say that complying with the financial disclosure requirement is not good enough.

Unfortunately, Frum then overstates the case: "The truth is in the tax returns, and they will not be forthcoming."  If "the truth" means something along the lines of "information sufficient to answer all -- or even most -- of the important questions that have been raised about Trump's financial situation and dealings," then that assertion is clearly wrong.  The fact is that we do not know what questions the tax returns will answer because we do not know what is in them.

I have yet to hear an informed argument that convinces me that the tax returns would definitively show Russian entanglements, for example.  Maybe they would, but it is quite possible that they would not (even if such entanglements exist).

And another popular claim, that the tax returns would prove that Trump's net worth is not what he claims, is almost surely wishful thinking.  Annual tax returns simply do not collect the various pieces of information necessary to draw such conclusions, except incidentally and imperfectly.

Even so, that the tax returns would not tell us everything does not mean that they would tell us nothing.  And as long as Trump is being so secretive, in a context in which he is so shamelessly flouting longstanding practice, he is all but begging to keep the story alive.  And his opponents are -- quite appropriately -- only too happy to oblige.

The most recent skirmish involved New Jersey congressman Bill Pascrell, Jr., who serves on the House Ways and Means Committee, which has oversight of the tax system.  Pascrell relied on section 6103(f)(1) of the Internal Revenue Code, which allows the chair of Ways and Means to require the Treasury Secretary to "furnish such committee with any return or return information specified in [the chair's] request."

Pascrell sent a letter to the current committee chair, Texas Republican Kevin Brady, formally requesting that Brady issue such an order to allow the committee to review Trump's tax returns.  Further, Pascrell requested "that the Committee then vote in this closed session to submit the President’s federal tax returns to the House of Representatives—thereby, if successful, making them available to the public."

Pascrell certainly knew that his request would be denied, so for good measure he added a twist of the knife by reminding Brady that "[t]his Committee followed a similar procedure to release confidential taxpayer information in the past during its exhaustive investigation of the treatment of certain tax-exempt organizations."

There, Pascrell was pointing out that the Republicans (with Brady very much among the ringleaders) had recently decided to review private taxpayer information when it suited them politically, specifically with regard to the IRS non-scandal that has consumed so much time and taxpayer money over the last few years.

Shameless hypocrisy being well within Brady's otherwise rather limited skill set, no one was surprised when he summarily rejected Pascrell's request.  Brady wrapped himself in the flag, writing that "[p]rivacy and civil liberties are still important rights in this country, and (the) Ways and Means Committee is not going to start to weaken them."

And just to make sure that the unctuousness factor was high enough, Brady added: "If Congress begins to use its powers to rummage around in the tax returns of the president, what prevents Congress from doing the same to average Americans?"

If ever a slope was not slippery, this is it.  Trump's situation is completely unique, thus making it impossible to imagine someone saying, "Well, now that we've gotten the president's tax returns, who's next?"  There is no next person, because the issue at hand is a president who refuses to follow longstanding practice (grounded in principles of good governance and transparency) of having presidential candidates release their tax returns.

Moreover, the law specifies (and Pascrell specifically noted) that the review would happen while Ways and Means was "sitting in closed executive session."  Only then would the committee vote on whether to release the returns to the full House of Representatives.  Privacy and civil liberties were already taken into account when writing that section of the tax code, and Pascrell explicitly acknowledged that fact.

Although it is now completely ordinary for Republicans to go to extreme lengths to protect their dear leader, it is still good for the Democrats to force them to do so publicly.  Keeping this issue alive is an important part of being in the opposition.  The public agrees -- by a large margin -- that releasing the president's returns is important.  Knowing that Republicans will continue to stonewall does not relieve the Democrats of the responsibility (to the Constitution as well as to the citizens that it protects) of asking that this be done.

With the Pascrell request now squelched, one interesting question that has arisen is whether another provision in the same subsection of the tax code might provide a different legal avenue that could result in the release of Trump's returns.

Whereas section 6103(f)(1) gives the Republican chairmen of the relevant committees the legal ability to say no if they are hellbent on protecting their man, section 6103(f)(5) is a whistle-blower provision that cannot be blocked by Brady or anyone else.

Specifically, this provision specifies that anyone who has had access to tax information "may disclose such return or return information to" the relevant congressional committees "if such person believes such return or return information may relate to possible misconduct, maladministration, or taxpayer abuse."

This means that all members of the committees would receive the information, whether Kevin Brady or Orrin Hatch liked it or not.  (The other committees specified by the law are both currently chaired by Hatch, the long-serving Republican Senator from Utah.)

Upon a first reading, this provision does indeed seem promising.  If an IRS employee believes that a taxpayer is abusing the system, it might seem that this provision should allow her or him to bring the tax return to the appropriate committees' attention -- including the committee members from the minority party.  Although it would take a great deal of courage to risk Trump's wrath (especially given how poorly most whistle blowers are treated, even in more mundane matters), does this not provide at least an opening?

Actually, no.  As my colleague Philip Hackney at LSU's law school pointed out to me privately, the term "taxpayer abuse" in the quote above refers to abuse of a taxpayer by the IRS, not a situation in which a taxpayer is abusing the tax system.  This, he pointed out, is the best reading of the provision because of references to misconduct and maladministration, which are aimed at potential wrongdoing by the IRS, not taxpayers.

Interestingly (and buttressing Professor Hackney's reading of the text), this provision was added to the code as part of a now-infamous 1998 law in which the Gingrich Republicans, then newly empowered after four decades in the minority, did everything possible to neuter the IRS.  The Republicans did so after staging lurid show trials before congressional committees where aggrieved taxpayers told stories about abusive tax agents, all but a tiny fraction of which turned out to be almost completely fabricated or grossly exaggerated.  (Any misconduct is unacceptable, of course, but there was no evidence of systemic problems or a need for additional safeguards.)

If congressional intent means anything, therefore, the whistle-blower provision embodied in section 6103(f)(5) does not protect an IRS employee who might consider sending Trump's tax returns to all of the members of the Ways and Means committee.

And honestly, it is hard to imagine that the IRS's leadership would want an employee to use even an unambiguous whistle-blower provision to expose Trump's returns.  The Service has been struggling with budget cuts for decades, intensified by the Republicans' vindictive response to the recent non-scandal.  There is no question that the Republicans would harshly punish the IRS as a whole for the release of Trump's returns, even if the disclosure came from one rogue employee acting alone.  (Imagine the conspiracy theories that would follow!)

One further implication of the whistle-blower provision is worth noting, however.  Professor Hackney pointed out to me that an IRS employee who thinks that the Service is being too lenient with Trump might be able to rely on the "misconduct or maladministration" language to justify releasing the returns to the congressional committees.  That is, if there is a whiff of Trump having received special treatment not justified by the law in light of the contents of his return, an employee could blow the whistle.

In certain circumstances, this could amount to the same thing as my initial inaccurate reading of the whistle-blower provision, because if there really is something fishy going on, then disclosure could be justified.  However, if the audit turns up nothing, then closing the audit would not amount to misconduct or maladministration, so no whistle could be blown and the returns could never be made public.

In fact, from the standpoint of those who are hoping to publicize Trump's returns, this is in some sense even worse.  If the audit turns up questionable  items, Trump can quietly settle the issues in order to keep the return private.  So the only situation in which this provision would actually result in disclosure is if Trump did something wrong but the Service agreed to do nothing about it.

In a sense, this is starting to sound like the Trump University case.  After the election, Trump suddenly settled on generous terms with the plaintiffs who were suing him for fraud in that case.  Even though Trump had been fighting the case tooth and nail, the possibility of facing questions under oath (which, thanks to Clinton v. Jones, a sitting president can be required to do) made it important for Trump to pay to make the case go away.

The analogy to Trump's tax situation is intriguing.  He has been fighting audits for years, safe in the knowledge that no one at the IRS would have any reason to disclose his returns even if he were to negotiate an especially beneficial settlement.  Now, however, he can only guarantee the continued privacy of his returns if any settlements do not raise reasonable questions of special treatment from the IRS.

This is still bad news from the standpoint of those who wish to force the release of Trump's tax returns, because he still has the power to prevent that from happening.  Trump will surely continue to refuse to disclose, so only a purely illegal hack of the IRS would result in the release of the returns.

A tiny silver lining, however, is that this might provide a means to reduce what Michael Dorf has dubbed Trump's "corruption premium."  Despite all of the ways in which Trump and his family are looking to seek private gain from public office, Trump now has an incentive to pay his taxes in full without much of a fight.  A reasonable kleptocrat might view that as a small price to pay, but Trump hates to lose, and this will surely cost him money.

Saturday, February 18, 2017

A 4-4 Talk in the Windy City

By Eric Segall

A brief inside baseball interruption for law nerds from the horrors of the real world and our nightmare-producing clown of a President.

I was at the University of Chicago on Wednesday defending my thesis that the Supreme Court should be an eight-person Court evenly divided among Democrats and Republicans. I was talking at a Judicial Behavior Workshop hosted by Judges Richard Posner and Frank Easterbrook as well as by Bill Landes, Lee Epstein and Dennis Hutchinson. Also in the room were such constitutional law heavyweights as Geoffrey Stone, Gerald Rosenberg, and Tom Ginsburg.  I had been told by folks who had been invited to the workshop before to expect serious grilling. The warning was accurate.

After I was introduced, I mentioned how flattered I was to be there when Lee Epstein asked me what specific problems I was trying to solve with my proposal. For the remainder of the ninety minutes, I fielded at least three questions at a time piled on top of one another. I felt like an outfielder trying to catch fly balls at batting practice with Ruth, Aaron and Mays all hitting to me at the same time.

I only mentioned one of my goals (making it harder for five or more Justices to impose their political ideology on the rest of us) when Judge Easterbrook jumped in. His main objection to my proposal, or at least the objection that he most frequently stated, was that he didn't think Republican and Democratic self-identification lined up with being liberal or conservative closely enough to justify the proposal. He kept pointing out that in my list of important 5-4 cases over the last 30 years Justices Stevens and Souter were often liberal votes, and they were both Republicans.

I thought I had addressed this point in my paper when I argued that the cries of "No More Souters" and "No More Kennedys" from GOP interest groups as well as Senators like Ted Cruz would make it highly unlikely that we will again see moderate Republicans on the bench. I also pointed to the work of several important legal scholars who have suggested that given the divided nature of our country today, it is likely that the Court will be divided on a partisan basis for the foreseeable future.  Neither of those points came close to satisfying Judge Easterbrook who, while being quite polite and even a tad warm, was steadfast in that "you will never, ever convince me kind of way." He is quite good at that look.

Geoffrey Stone had slightly more sympathy for my proposal, but he did not agree that there was a serious problem that needed to be fixed.  He argued that if you look at Supreme Court cases over the last 200 years, overall the court has done a pretty good job. Of course there have been some major mistakes along the way, he conceded, but he argued that our country is better off with a strong Supreme Court.  No matter how often I mentioned Dred Scott, The Civil Rights Cases, the 200 or so federal and state laws struck down by the Lochner Court (including Congress' prohibition of child labor), Citizens United, Shelby County, and District of Columbia v. Heller, Stone still insisted that Brown, Roe, and other cases justified faith in the Supreme Court. I am going to go out on an optimistic limb and suggest that Gerald Rosenberg, author of one of my favorite books on the Court, The Hollow Hope, agreed with me as he gave me sympathetic looks throughout much of my exchange with Professor Stone.

Judge Richard Posner, who doesn't like my proposal either, strongly disagreed with Professor Stone. As is obvious from reading Posner's remarks about the Supreme Court over the last few years, he does not have a lot of faith in the institution anymore.  Judge Posner mentioned that he liked Professor Turley's recent Op-Ed in the Los Angeles Times advocating for a 19-person Supreme Court.  Other people in the room then asked me what I thought about that idea. I responded that I liked it but there were serious transaction costs.  That's a lot of confirmation hearings to have over time.  And, can you really imagine reading an important decision with the number of concurring opinions a 19-person Court would likely elicit? How would we figure out the actual holding of a 7-4-3-3-2 split?

Professor Ginsburg and other people in the room were concerned about the effects of my proposal on lower court judges.  They wondered whether the confirmation hearings for those Judges would be much more intense and combative, and whether circuit judges might view their jobs differently knowing that the Supreme Court might tie four to four in highly contested cases. A graduate student also asked me whether my proposal would make it much more difficult for the Court to achieve finality (which is different than uniformity) in the kinds of highly charged cases likely to produce 4-4 splits.

These questions coming at me all at once gave me the opportunity to make three general and important points about my proposal. First, I responded that my plan needs to be compared to our current Court and actual legal system (where Justice Kennedy has been King for a long time) not some highly idealized version of that system. So even if the confirmation process for lower court judges might become more politicized than it currently is (which is a lot), that downside has to be compared to a new world where the partisan make-up of our highest Court is NOT mostly the result of death, illness, and politically timed retirements or ill-timed retirements. If Justice Marshall had lasted just one more year, for example, instead of deciding to retire a year before President Clinton was elected, we’d have no Justice Thomas, and therefore no Citizens United, Shelby County, and Heller, and Professor Stone would be even happier with the Supreme Court. But the randomness of how we structure the Court is truly crazy and needs to be fixed. The obvious solution, ending life tenure, requires a constitutional amendment, whereas my proposal does not.

I also argued that if lower court judges decide to play fast and loose with Supreme Court precedent (as the Fifth Circuit did in the recent Texas abortion controversy) it is extremely likely that the Justices will shut them down even if it means one Justice voting for a result that possibly he or she would not have joined in the first instance. That effect would likely improve respect for stare decisis and the rule of law, another benefit of my proposal.

The finality point is a good one. My response was that we have little finality now in major areas of constitutional law, and if this is a major concern in an important case, the Justices will find a compromise and narrow way to get there. Just last week, Chief Justice Roberts mentioned in Kentucky that the Justices have been having longer conferences and talking since Justice Scalia passed away. I also argued that the Court has issued some final decisions (like Roe) that had major unintended consequences, and that my proposal would make it harder for the Court to err in that direction. As Justice Ginsberg has stated, the Court made a major mistake by deciding the abortion issue “in one fell swoop” (yes that decision was 7-2 not 5-4 but those kinds of lopsided votes in major cases are largely a thing of the past).

By the end of the talk, it was clear that no one in the room was willing to embrace my proposal (at least out loud) but that possibly I had achieved one of the goals of my paper and this entire year long project. Even if I can't get people to agree with requiring a 4-4 split (though some have), or agree but think it will never happen, sometimes academics (I hope) are allowed to present ideas that may shine new or different light on existing problems and institutions. I'd like to think I accomplished that in the Windy City.

Friday, February 17, 2017

One State Two States, Trump States Fantasy State

by Michael Dorf

Suppose you were a professional mediator and two parties came to you to help them resolve a dispute. As Professor Colb explained after completing her training as a mediator, you would quite properly resist the temptation to impose a solution on them. The goal of mediation is to enable the parties to have an honest conversation in which they choose a resolution that suits them. That is fundamentally what distinguishes mediation on the one hand from litigation and arbitration on the other.

Thus, someone with no prior knowledge of the Israel/Palestine conflict or of Donald Trump's profound ignorance about nearly every subject relevant to the duties of the presidency might think that his pronouncement in the company of Israeli Prime Minister Benjamin Netanyahu was simply an expression of neutrality by an honest broker.

Also sprach Trumpathustra:
I'm looking at two-state and one-state and I like the one that both parties like. I'm very happy with the one that both parties like. I can live with either one. I thought for a while the two-state looked like it may be the easier of the two but honestly, if Bibi and if the Palestinians -- if Israel and the Palestinians are happy, I'm happy with the one they like the best.
Much of the press coverage of this statement has focused on how it amounts to a break with bipartisan U.S. government policy for roughly the last three decades, in which the U.S. has urged Israel to make territorial concessions to a Palestinian state in exchange for peace. But is that fair? After all, Trump did not say that he opposes a two-state solution. He merely said that he would accept either a two-state or a one-state solution if either is mutually acceptable to Israelis and Palestinians. What's wrong with that?

Plenty, as it turns out. There are both Israelis and Palestinians who favor a one-state solution, but they mean very different things by one state. And the distance between the respective one-state visions is much greater than the distance between the respective two-state visions.

Right-wing Israelis who favor a one-state solution have in mind that Israel should annex East Jerusalem, the West Bank, and perhaps Gaza. The one state would be Israel. Palestinians would presumably be permitted to continue to live more or less where they do, but to maintain Israel's status as a Jewish state (a core commitment of not only right-wing but most moderate Israelis as well), Palestinians would not be given full democratic rights. Given the demographics, they could not be, because they would outnumber Israeli Jews. Exactly what political status Palestinians would have in a single Israeli state in modern-day Israel plus the occupied territories is not clear. Perhaps they would have the right to vote in local elections and for certain governing bodies with a degree of autonomy. But they would be at best second-class citizens. The highly controversial term "apartheid state," which most Israelis regard as unfair when applied to present-day Israel, would be accurate as applied to a one-state solution in which the one state is greater Israel.

Meanwhile, some Palestinians who favor a single state imagine a single state that is essentially judenrein. Today, people who hold this view tend to be Islamists, but since the advent of modern Zionism in the late 19th century, there have also been many secular Palestinians (and other Arabs and non-Arab Muslims) who opposed any substantial Jewish presence in the lands now denoted Israel and the occupied territories. However, since the emergence of Hamas as more radical than Fatah and also as Islamist, the notion of a single greater Palestine has been more closely associated with the Islamist factions. While many of the Islamists would want Jews expelled from the resulting greater Palestinian state (or worse), there is in classical Islam a milder alternative. In a moderate Islamist Palestine, Jews would not necessarily be the victims of expulsion or genocide, but instead could live with dhimmi status--as Jews and other non-Muslims traditionally did in Islamic lands for much of Muslim history. Such second-class status with attendant partial autonomy would more or less mirror the lot of Palestinians in the Israeli far right's version of a one-state solution.

Needless to say, neither of the foregoing possibilities--Palestinians as second-class citizens in or exiled from a single greater Israel or Jews murdered, exiled, or second-class citizens in a single greater Palestine--is remotely acceptable to any of the people who would be, at best, relegated to the subordinate status.

That leaves a couple of possibilities. One is a single secular multi-ethnic liberal state. This approach is favored by some liberal Palestinians and far-left Israelis. But it is completely unacceptable to the vast majority of Israelis, including many moderates, who fear (not without reason) that the moderate Palestinians who favor peaceful coexistence in a multi-ethnic secular liberal state would be outvoted or overthrown by violent means, so that this option would devolve into the greater Palestinian state in which the best Jews could hope for is dhimmi status.

The other kind of single-state solution would be some form of federalism. The record of federalism as a solution to ethnic conflict is mixed. Belgium and Canada, though hardly without their problems, are relative success stories. Some failures--such as Czechoslovakia--at least failed peacefully, thus ending up as a way station en route to partition. But in none of these places were the differences as great as between Israelis and Palestinians. Yugoslavia looms as the more likely analogy and even Yugoslavia probably had better ex ante prospects for peace than does a federated Israel/Palestine, given the relative peace that had existed for decades (albeit under the strict rule of Tito).

Are there really no other paths to peace? Yesterday the US Ambassador to the UN, Nikki Haley, walked back Trump's comments, casting them as simply a signal that the US wants to help Israelis and Palestinians go about "thinking out of the box." This might be a fair account of what Trump thought he was saying. After all, Trump fancies himself a master deal maker.

However, in this as in so many other matters, Trump's self-conception is a fantasy. There is no evidence that Trump is a genius or even especially good at spotting opportunities for mutually beneficial cooperation where others don't see them. His skill as a deal maker, such as it is, consists in taking advantage of the good faith of the counter-parties to his deals, frequently by failing to fulfill his contractual obligations and then using his holdup power as leverage to induce the counter-parties to take substantially less than full value. Whatever the dubious merit of that path to personal wealth, it will not yield a breakthrough in the Israel/Palestine conflict.

There exists the conceptual possibility that there is some creative deal to be made between Israelis and Palestinians that has heretofore been overlooked. But such a hitherto ignored option would have to be so complex that if there were the will on both sides to strike a deal, the two-state solution would almost surely be the easier one to agree upon.

Accordingly, when President Trump says that he is open to a one-state solution, he does not put any new possibilities on the table. Instead, he diminishes the already dim prospects for peace by undercutting the approach that is, if not likely to succeed, the least unlikely to succeed: the two-state solution.