by Michael C. Dorf
The term "vaporware" refers to software or occasionally hardware that a company advertises before it exists, often long before it exists, if ever. Here I want to borrow the concept. Many of Donald Trump's policies are Presidential vaporware. The most obvious example is The Wall at the southern border, which Trump boasts about but virtually none of which he has actually built. Many of Trump's tweets threatening or promising some action end up being empty rhetoric and thus another kind of vaporware.
As a lawyer, the instances of Presidential vaporware I find most interesting are those that take the official form of executive orders or directives but, upon inspection, do virtually nothing, typically instructing various agencies and officials to study options and report back. For example, on Wednesday of last week, Trump issued a document to the Attorney General and the Director of the Office of Management and Budget with the preposterous title "Memorandum on Reviewing Funding to State and Local Government Recipients That Are Permitting Anarchy, Violence, and Destruction in American Cities."
In addition to reciting various false statements of fact (e.g., that the authorities in some US cities have "allowed" or even "endorsed" anarchy), the Memo suggests that the President has the power to deny federal funds to cities or even whole states with law enforcement policies he dislikes. That is not, of course, how the federal power of the purse works. Congress allocates funding. It can and sometimes does vest discretion in the President to spend or not spend or even to provide incentives, but Congress itself cannot use the spending power coercively and thus has no coercive spending power to delegate.
Trump wouldn't know any of that, because he hasn't ever read the Constitution, cases construing it, or anything else that isn't mostly pictures. However, the lawyers who turn Trump's vindictive Twitter rants into policy do have some knowledge of the law, and thus when one digs into the Memo, one finds that it is indeed simply vaporware. It sets deadlines for various reports, but all it really does is ask various federal officials to figure out whether they have the legal authority to withhold funds from anarchist jurisdictions. Because they don't, and because, in any event, there are no anarchist jurisdictions, the Memo is essentially meaningless.
Why write a meaningless memo? Doing so allows the lackeys who wrote it to tell Trump that they are implementing his plan to defund anarchist cities. He believes them because he doesn't read the memo, but even if an adviser or a FoxNews talking head explains to him that the memo doesn't actually defund anything, Trump can still boast to his base by pointing to the memo as what in Trumpworld counts as evidence that he is following through on his absurd threat. He'll either believe that because he's too ignorant to know otherwise or lie about it because he's a pathological liar. Win-win!
One piece of evidence that the defund-anarchist-cities memo was only ever intended as vaporware is that just two days later, Team Trump was at it again, this time issuing a memo that, subject to further details supposedly to be released soon, ends funding for programs that train federal employees in "critical race theory," "white privilege," and "any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil."
Whether Trump's anti-anti-racism memo should count as vaporware is a question with both empirical and semantic components. As an empirical matter, it is doubtful that federal employees are in fact being trained or indoctrinated in critical race theory, (recognition of) white privilege, or the like. The memo cites "press reports," which, of course, means FoxNews, in particular a segment on Tucker Carlson's show in which one Chris Rufo makes various claims about how "critical race theory has pervaded every institution in the federal government." Although Carlson makes his very-concerned-Tucker-face throughout Rufo's monologue, it's hard for those of us who live in actual reality to know how seriously to take any of this.
For example, at one point Rufo says that "critical race theory is now infiltrating into our scientific establishment" and later decries it as a "destructive, divisive, pseudoscientific ideology." Yet while FoxNews bills Rufo as a "journalist," his day job is at the Discovery Institute, which actively promotes intelligent design and attacks Darwinian evolution, so perhaps we should give Rufo credit as an expert on pseudoscience after all.
Too ad hominem? Fair enough. I'll stick to critical race theory and white privilege. It's still entirely unclear how much diversity training incorporates these or related concepts. Based on the FoxNews m.o., it is likely that Rufo has cherry-picked a few examples, much in the way that it's always possible to find an overzealous school board somewhere and cite it as evidence of a war on Christmas. In his own writing, Rufo is not entirely clear whether he objects to all diversity training for federal employees or only to anti-racism training offered by people he calls "diversity hustlers." But the Trump order based on Rufo's advice does not ban diversity training, only certain ideas sometimes associated with diversity training. How much of that there is in federal employee diversity training remains uncertain, but I would not be surprised if the implementation of Friday's order turns out to be fairly easy even for the particular diversity trainers Rufo so despises.
Let's assume, therefore, that the memo is not entirely meaningless. Hence, some unknown number of diversity training workshops for some unknown number of federal employees will look a little different as a result of Trump's immediate implementation of the instructions he received from Tucker Carlson's creationist guest. Does the likelihood of some actual small change on the ground preclude the use of the term Presidential vaporware?
That's the semantic question. I'm inclined to reserve the term for Presidential directives, memos, threats, and promises that are or at least could prove to be completely empty. However, I don't strongly oppose extension of the term to cover actions that are taken with great fanfare while having a nonzero but negligible impact.
I'll close with two clarifications. First, although I thought I coined the term Presidential vaporware, a little Googling revealed other prior uses, such as in this excellent piece. Credit where credit is due.
Second, Presidential vaporware from Trump is a mixed blessing. Given that most of what Trump wants to do is evil, stupid, wasteful, illegal, and/or corrupt, it's obviously better when he signs an executive order or Presidential memorandum that doesn't accomplish any of his aims than one that does. So if the choice is between vaporware and actual harmful accomplishments, vaporware is preferable.
However, doing nothing should also be an alternative. When Trump gets exercised about something Tucker, Sean, Laura, or one of his other imaginary friends on the talky box tells him, his demands that his minions turn his pique into vaporware are not costless. Sure, it's better that Stephen Miller spend his time drafting meaningless memos than spend it coming up with new ways to destroy the lives of refugees. Diverting the energies of Miller, Kushner, Pompeo, and the other sycophantic evildoers in Trump's inner circle is for the good.
But some of these memos impose burdens on bona fide professionals who work for the federal government despite, rather than because of, Trump. It's possible that implementation of Trump's anti-anti-racism memo will mean that some professionals at the NIH who would otherwise be working on supporting state and local COVID-19 contact tracing must now spend time reviewing diversity training materials to ensure that they don't mention white privilege and comply with the anti-anti-racism memo's assertion that the nation has been committed to equal opportunity "since its inception," when, I hardly need remind readers, slavery was very much part of what our Constitution's "intelligent design" contemplated and accepted.