The Vaporware Presidency
In the tech world, the term vaporware is used to describe a product that does not yet and may never exist but that a company hypes for any number of reasons. For example, eventually, we will probably have a fully functional fleet of driverless cars, but Elon Musk has been promising that his Teslas will be fully self-driving in just another few years for a decade. Unless and until Tesla produces and sells such vehicles, its self-driving cars are vaporware.
Meanwhile, three events in last week's news highlight how much of what Donald Trump does as president is the equivalent of vaporware.
1) Pardon?
The most amusing incident was Trump's announcement that he was pardoning Tina Peters, a Colorado county clerk who was convicted and sentenced to nine years in prison for tampering with election machines in service of Trump's Big Lie during the aftermath of the 2020 presidential election. It is not clear whether Trump merely announced an intention to pardon Peters or has actually signed or intends to sign a document purporting to pardon Peters, but it doesn't matter because Peters was convicted in state court on state charges, not federal ones.
Article II, Section 2 of the Constitution empowers the president "to grant reprieves and pardons for offenses against the United States." A state crime is not an offense against the United States. This is not an open question. Nonetheless, some news outlets reported on the story as though there was some doubt about the matter. For example, a BBC News story was titled "Trump says he will pardon jailed elections clerk, but state officials say he cannot." That's a bit like a headline reading "Trump says he will never give up the presidency because he has become an immortal god, but some scientists say he isn't." To be fair, though, the BBC headline writers in London can't be expected to read and understand the U.S. Constitution. After all, the U.S. president himself hasn't done so.
Meanwhile, the New York Times headline on the Peters pardon read: "Trump Offers Symbolic Pardon for Clerk Convicted of Election Tampering." That's both helpful and unhelpful. It's helpful insofar as it doesn't convey to readers the impression that there's any kind of open question whether a presidential pardon for a state crime is valid. But it's unhelpful--and far too generous to Trump--in suggesting that Trump knew his pardon was ineffective. A symbolic gesture is typically one that the maker of the gesture understands to be symbolic. There is little reason to assume that Trump realized pardoning Peters has no legal effect, given his general ignorance about the Constitution, law more broadly, and . . . well . . . nearly everything.
2) Artificial Intelligence
It is also unclear whether Trump realizes how little some of the Executive Orders he signs actually do. For example, he made news last week by signing an EO that was widely reported to block states from regulating Artificial Intelligence. For example, here's a story on the PBS website headlined "Trump’s executive order limits state regulations of artificial intelligence." Actually, it does nothing of the sort.
What the AI EO actually does is to instruct various executive officials to take actions to rein in state regulations of AI to the extent that those state regulations are either pre-empted by federal statute or violate the Dormant Commerce Clause or the First Amendment. That's not nothing. In the absence of the AI EO or its equivalent, the Justice Department might not have made it a priority to go to court to seek the invalidation of state AI regulation. But the AI EO itself does not limit state regulation of AI.
It's also worth noting that even the direction to the Justice Department is largely theater. To the extent that state-level regulations are pre-empted or run afoul of the Dormant Commerce Clause or the First Amendment, the AI companies have adequate incentives and more than adequate resources to challenge the application of the regulations themselves.
Another provision of the AI EO purports to forbid federal funding for broadband development to states with "onerous AI laws" as determined in accordance with (vague) standards set out in the EO. But the prohibition is authorized only "to the maximum extent allowed by Federal law," which might not be very much, because longstanding Supreme Court precedent requires that conditions attached to federal funding of state programs need to be stated clearly and in advance; they cannot be added by the executive branch after the fact.
The AI EO is thus practically vaporware--at least as measured against the yardstick of how it is being portrayed to the public. Exactly why the Trump administration wants to exaggerate the extent of its action on AI is unclear. Its policy position--laissez-faire for AI--is widely unpopular, so a rational administration seeking to fool the public would want to fool the public into thinking it was doing more to support AI regulation than it is, not that it is actually undercutting state regulation of AI.
It's thus possible that the puffery of the AI EO is irrational. Certainly, irrationality in this area would not stand out as especially odd in an administration in which RFK Jr. is HHS Secretary and Donald Trump is president. However, it's also possible that the audience for the AI EO is not actually the broad American public but the tech bro donor class. One might think they cannot be so easily fooled, but then one might remember that many of those tech bros believe cryptocurrency has real value, and not just as a medium for foreign governments to bribe the president.
Meanwhile, the AI EO recites the proposition that fifty different state regulatory regimes create a compliance headache for companies doing business throughout the United States, even if any particular regime is sensible. That's fair enough, but it's the root of an argument for federal legislation with pre-emptive effect, not for no-regulation. And the AI EO recognizes as much, at least rhetorically. It includes this language:
My Administration must act with the Congress to ensure that there is a minimally burdensome national standard — not 50 discordant State ones. The resulting framework must forbid State laws that conflict with the policy set forth in this order. That framework should also ensure that children are protected, censorship is prevented, copyrights are respected, and communities are safeguarded. A carefully crafted national framework can ensure that the United States wins the AI race, as we must.
The argument that AI regulation should be "minimally burdensome" is not really made in the EO, but the reference to winning the AI race gestures to an argument the current administration has made elsewhere. The claim is that China and possibly other countries are proceeding full steam ahead in AI development, so that any restrictions the U.S. imposes will not prevent AI doom but will disadvantage the U.S. relative to strategic adversaries; thus, we should regulate AI only minimally.
Notably, however, the AI EO doesn't regulate minimally. It regulates not at all. The only nod to regulation is the hypothetical national standard to be enacted by a cooperative Congress. That standard is vaporware.
3) Concepts of a Plan
Finally, we come to the most vapory of all Trump's vaporware: his plan to repeal and replace Obamacare with something "terrific" that he has been promising would be released imminently for a decade, sometimes downgrading the mysterious plan to mere "concepts of a plan." Meanwhile, however, Republicans are refusing to vote to extend the Obamacare subsidies that will expire in a few weeks, even though today is the last day to sign up for coverage for next year. As a result, premiums will spike for millions of Americans, many of whom will therefore forgo health insurance and some of whom will thus suffer serious and in some cases fatal consequences. If only those concepts of a terrific plan would coalesce quickly!
True, without waiting for the president's concepts, Louisiana Republican Senator Bill Cassidy introduced a bill that would do something, but the something it would do--replace subsidies to purchase insurance on the Obamacare exchanges with subsidies for medical savings accounts worth substantially less--is not helping people purchase health insurance. The bill House Speaker Mike Johnson plans to introduce would do even less.
The Republican Senate plan is so inadequate that one suspects it was never intended to actually be enacted. If it were, people who ended up with Cassidycare would quickly discover that the money in their medical savings accounts is quickly exhausted if they actually need real health care, i.e., that it is not health insurance at all. The real point of the Cassidy and Johnson plans seems to be to enable Republicans running for re-election in the midterms to lie to low-information voters by telling them that the reason they don't have health insurance is that Democrats refused to support Cassidycare or Johnsoncare, not that Republicans refused to join Democrats in extending the Obamacare subsidies.
If I'm right about that, then the constant media puzzlement over the fact that President Trump has not gotten involved in Congressional negotiations over the expiring subsidies is misguided. Trump does not have any new proposal--or even any new concepts of a proposal--to offer. Nor would his support for Cassidycare or Johnsoncare help. Most Republicans are already onboard with supporting some such fake alternative, except for those House Republicans in swing districts who are panicky enough to jump ship and vote to extend the Obamacare subsidies. The only real option for Trump to make a difference would be for him to throw his weight behind the Democrats' proposal because that would give cover to enough Republicans to do the same.
Trump might still do that, but if he does, astute observers will wonder why he didn't do so a couple of months earlier to avert or substantially shorten the government shutdown. After all, extending the Obamacare subsidies was the only real demand of Democrats (before they caved). Fortunately for Trump and Republicans, most voters are not astute. If Trump does end up supporting extension of the Obamacare subsidies, however, that will not amount to the concepts of Trump's fictional plan to repeal and replace Obamacare finally seeing the light of day. It will amount to Trump tacitly acknowledging that he has no plan. The Trump plan to repeal and replace will remain vaporware.
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In focusing today's column on Trump's vaporware, I do not mean to suggest that all of Trump's policies are hypothetical. Unfortunately, and in numerous ways in many areas, Trump's disastrous actions are all too real. What I do mean to suggest is that we would be better served by focusing on those real harms and not get distracted by the vaporware.
-- Michael C. Dorf