Why liberals (and conservatives) overestimated Trump’s threat to democracy

The Wall Street Journal editorial page makes fun of liberal academic and commentators who warned that Trump aspired to dictatorship. (N.B.: many conservatives also warned that Trump aspired to dictatorship, but never mind.) Far from demolishing checks and balances, Trump has been thwarted by them at every turn. He has submitted to judicial orders halting his travel bans. He has given up on health care reform after Republican members of Congress nixed it. He helplessly throws tantrums as bureaucrats leak his plans. He has not prosecuted journalists, set mobs on his political enemies, spied on Democrats, or set up a paramilitary force of brown shirts. He has huffed and puffed—and hyperventilated.

I think the commentators can be forgiven. They were merely taking Trump at his word—pretty much the biggest mistake one can make these days, but a mistake that many respectable people have made in the past. On the campaign trail and in office, Trump has made promises and representations that hinted that he would roll over any person or institution that stood in his way.

What fooled everyone is that Trump made promises that no normal politician has ever made. Normal candidates for the presidency always tell us that they will work with Congress, honor the press, curtail executive power, consult the people, compromise with the loyal opposition, and govern in the interest of the general public rather than a specific group. We never believe these candidates because all people who want to be president claim to believe in truth and justice—and nearly all of them have broken their promises once in office.

What was strange about Trump was that his promises to disregard checks and balances seemed like promises against interest—and, for that reason, they seemed credible. What commentators did not understand is that Trump realized that pretending to want to be a dictator electrified his political base, and gave him his victory in the primaries. Perhaps the only people who did not believe Trump were ordinary Republicans—the ones who took him “seriously but not literally,” held their noses, and voted for him in the general election.

Gorsuch on Chevron deference

From the transcript (I have corrected what appear to be errors in the transcription):

Question: Would you overturn [Chevron]? Is that what this means when you talk about it is time to face the behemoth?

Gorsuch: Senator, my job is when I see a problem to tell my boss. Like any good employee. I conceived it was to say hey, listen to implications. Real life implications of what we are doing here.

Question: you would be the boss if you were supreme court justice. And what rule do you think should replace it? De novo review? What is better?

Gorsuch: Senator, I don’t prejudge it. I can tell what you did preexist it is Skidmore deference, an opinion by Justice Jackson, actually. That’s what preexisted. There was deference before. And we had the administrative state for 50 years. And agencies would issue rules and decisions. I don’t know what all the consequences would be. I wasn’t thinking about being a supreme court justice then. I was identifying an issue for my bosses. So fortunate to become a justice. I would try and come at it with as open a mind as man can muster. And I would tell you and remind you that I [keep?] in mind David Sentelle [who wrote an opinion at the beginning of the year and] then by the end of the year wrote for the full court reversing himself. Some people think that doesn’t show a lack of sufficient steel. I think that shows a lack of ego that a judge should bring to bear when he or she puts on the robe. That’s what I would commit to you.

The answer is evasive, to say the least. No, he’s not “identifying an issue for [his] bosses,” who are fully aware of it. Gorsuch wants to overturn Chevron. And not because he thinks that Skidmore deference is adequate. He’s attacking Chevron because he opposes administrative power.

In Gorsuch’s Gutierrez concurrence, he argues that Chevron should be overturned. He makes the remarkable argument that it is inconsistent with Schechter Poultry, one of the Supreme Court’s two 1935 anti-New Deal non-delegation cases:

The Supreme Court once unanimously declared that a statute affording the executive the power to write an industrial code of competition for the poultry industry violated the separation of powers. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-42 (1935). And if that’s the case, you might ask how is it that Chevron — a rule that invests agencies with pretty unfettered power to regulate a lot more than chicken — can evade the chopping block.

The argument is that if Congress supplies an “intelligible principle” for interpreting a statute, as it is supposed to do under the non-delegation doctrine, then deference can only permit agencies to violate the intelligible principle, since otherwise courts can hold them to it.

Gorsuch, unlike other circuit judges who from time to time are asked to apply the non-delegation doctrine, does not mention that Schechter Poultry has never been followed by the Supreme Court but instead consigned to the dustbin of history. He thinks that this case should take precedence over Chevron, a 1984 case that the Supreme Court has reaffirmed on numerous occasions. This makes no sense as a matter of precedent, of course. The real point is that, in Gorsuch’s view, Chevron was wrongly decided. He continues:

Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is “the very definition of tyranny.” But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state…. It’s an arrangement, too, that seems pretty hard to square with the Constitution of the founders’ design and, as Justice Frankfurter once observed, “[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions” imposed by the Constitution….

Unlike Schechter Poultry, which—in Gorsuch’s view, I strongly suspect—is not at all hard to square with the Constitution of the founders’ design. Gorsuch is opposed to administrative regulation, full stop.

You might even agree with Gorsuch but wish he would state his views clearly to the senators: that, unless he changes his mind (“I would try and come at it with as open a mind as man can muster”), his judicial philosophy will throw into doubt the structure of modern government—from EPA regulations, to financial regulations, to consumer protection.

All of which means that we can expect Gorsuch to join Justice Thomas as one of only two justices to seriously oppose the administrative state in the last 50 years, at least.

Update: Chris Walker points to another exchange, here. Gorsuch goes into a bit more detail, but only to replicate the view he expresses more clearly and forcefully in his Gutierrez concurrence.

Gorsuch’s balls-and-strikes moment

From his opening statement:

Once in a while, of course, we judges do disagree. But our disagreements are never about politics — only the law’s demands. Let me offer an example. The first case I wrote as a judge to reach the Supreme Court divided 5 to 4. The Court affirmed my judgment with the support of Justices Thomas and Sotomayor — while Justices Stevens and Scalia dissented. Now that’s a lineup some might think unusual. But actually it’s exactly the sort of thing that happens – quietly, day in and day out – in the supreme court and in courts across our country. I wonder if people realize that Justices Thomas and Sotomayor agree about 60% of the time, or that Justices Scalia and Breyer agreed even more often than that. All in the toughest cases in our whole legal system.

Not exactly false but highly misleading. Thomas and Sotomayor hardly ever agree in cases involving controversial issues. The major question is why our system forces an honorable fellow like Gorsuch to spoon out such pablum. I suppose a moment of ritual humiliation is the price one pays for lifetime tenure and limitless power.

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Goldsmith on Trump’s Onslaught on International Law and Institutions

Jack Goldsmith catalogs the ways in which Trump or (more likely) his subordinates hope to undermine international law, including:

— Gutting State Department capacity

— Eliminating domestic agencies related to international relations

— Increase in termination of international agreements

— Disengagement from international organizations

— Disengagement from international courts

— De-emphasis on international human rights law in U.S. foreign policy

— Actions closer to the (controversial) legal line on jus ad bellum and jus in bello

What should we make of these goals? They are all related to the ideas in an essay entitled America and the Liberal International Order by Michael Anton, a White House national-security official. The essay is an attack on liberal internationalism—it strikes many familiar chords, there is nothing radical about it. Anton argues that while the effort to create a liberal international order made sense after World War II, it no longer serves American interests. Anton blames Democratic presidents for perpetuating this order for ideological reasons, and Republican foreign policy types for failing to resist it.

Although Goldsmith is right that no president has never taken office with quite such a negative agenda for international law, one should also recognize that many items on Trump’s agenda (if that is what it is) have precedents. George Bush famously “unsigned” the Rome treaty, which created the International Criminal Court, while Ronald Reagan repudiated the Nicaragua decision of the International Court of Justice and withdrew the United States from the ICJ’s mandatory jurisdiction. Under Bush, the United States refused to participate in the Human Rights Council; Trump may do the same.

These and other actions were as much gestures designed to appease anti-internationalists in the Republican party, Anton’s predecessors, as to advance policy goals. And while Democratic presidents Obama and Clinton gave rhetorical support to liberal internationalism, these presidents also violated international law, including fundamental norms designed to protect human rights and prevent war, when American interests called for it. Of all the things that Goldsmith mentions, only the neglect of the State Department is unprecedented (as far as I know).

Even so, I expect that Trump will have a rough time advancing his goals. Reagan sought to downgrade human rights at the start of his administration, but gave in to resistance from Congress, the public, and powerful organizations. He also realized that he could use the rhetoric of human rights to his own ends, to batter the Soviet Union, while ignoring human rights claims against the United States, which was propping up dictatorships around the world.

The organizations, institutions, and treaties that Trump or Trump’s subordinates might like to dismantle have many constituents. Anton doesn’t seem to realize that the resources that the United States devotes to promoting “liberal internationalism” are tiny and the effect is mostly symbolic. Underneath the rhetoric, the United States has usually pursued its economic and security interests in a hard-nosed fashion. Indeed, even foreign aid—which is on the chopping block—is usually used to advance American security interests, for example, in Afghanistan. When Trump officials finally realize that foreign aid is mostly used to advance American security interests by buying support or acquiescence, not to create socialist utopias in banana republics, expect it to be uncut.

So what is left? Not much. That is why so many of Trump’s aspirations are to refuse to enter treaties that the United States has always refused to enter (from the Convention on the Elimination of all Forms of Discrimination Against Women to the UN Convention on the Law of the Sea). Bush, too, couldn’t withdraw the United States from the ICC treaty because the United States had never ratified it—hence, the pointless action of “unsigning” the treaty.

While Trump officials might intend a joyous bloody onslaught, they will find little to unleash their onslaught against.

Philip Hamburger replies

You can read his reply to my blog post wondering whether Gorsuch agrees with Hamburger’s view that administrative law is unconstitutional. Hamburger does not like the emphasis I put on the anti-elite and anti-foreigner themes in his argument but he confirms them. (I did not mean that Hamburger personally does not like elites or foreigners; I was talking about the role that these people played in his argument, which he confirms in his blog post, quite vividly I might add.) I agree with every word in his blog post where he explains his views; they confirm my account.

The bottom line, of course, is that Hamburger believes that administrative law is unconstitutional. If Gorsuch agrees with this view, then this ought to be a matter of concern to the Senate, which has participated in the creation of the administrative state, and would see much of its handwork dismantled by a Hamburgerian justice. Or am I wrong about that, Philip?

The Hawaii travel ban case

I got that one right. Now two judges, one in Virginia and one in Hawaii, have ruled that Trump’s travel ban policy is motivated by anti-Muslim bigotry. Trump’s comments in Nashville this evening (ban #2 was a “watered-down” version of ban #1) are not going to help him on appeal.

The additional significance of the Hawaii case is that it suggests that careful lawyering, scrupulous wording, narrow tailoring, notice, and orderly rolling-out, are not going to help Trump keep Muslims out of the country. The due process issues that preoccupied the Ninth Circuit have fallen away. Trump’s religious animus is a matter of record. Procedural niceties cannot erase it.

Gorsuch and Hamburger

Judge Gorsuch has approvingly cited Philip Hamburger’s book, Is Administrative Law Unlawful?, in three opinions.* That is three times the number of opinions citing Hamburger’s book written by all the judges in all the federal circuit courts put together. Is this a matter of significance?

Hamburger argues that “administrative power” is unconstitutional. This is a radical view. I mean a radical view in the sense that, if taken seriously, it would require the invalidation of much of the administrative state. Agencies like EPA and the Fed could continue to exist, but only to gather facts, monitor industry, and bring claims against people and companies based on statutes enacted by Congress. They would not be allowed to issue regulations, that is, rules. Only Congress could do that.

I do not think that this vision is acceptable to the public, or really anyone, not even business, which says that it opposes regulation but in fact depends on it more often than not. But his view is an appealing fantasy, and it has excited the conservative legal community. It’s much easier to say “it’s all unconstitutional” than to explain why this regulation or that one is unwise or illegal.

In rereading Hamburger, I am struck by three themes, which resonate with our political times.

Hamburger is anti-elite. He claims that the rise of executive power created a new elite class, which has displaced the “people,” who enact laws through the legislatures.

Hamburger is anti-foreigner. (Well, he is pro-UK, so call him anti-non-Anglo-American.) The Glorious Revolution ended royal claims to administrative power, but administrative power—which he calls a form of “absolutism”—took refuge on the Continent. He denounces the “Prussification” of American law after American lawyers, partly inspired by German practice, imported administrative lawmaking back into the U.S. at the start of the Progressive Era.

Hamburger is anti-executive. The executive is always tempted to abuse its power, far more than the legislature is.

These claims are all strikingly resonant and rhetorically powerful—especially in the wake of the Obama era, when all these themes came together in the darkest recesses of the reactionary imagination. They are all questionable as well. Legislatures have almost always been controlled by the elites, as have the courts. When populist impulses lead to political power, they usually travel through the executive. The United States had a tradition of administrative lawmaking at the local level, as Hamburger elsewhere notes; reliance on foreign practice was never necessary. In the U.S. experience, most violations of civil liberties in U.S. history required the joint action of Congress and the president. Indeed, the administrative state that Hamburger deplores was created by Congress.

Is Gorsuch a Hamburgerian? I would like to know.

*The cases are: Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016); United States v. Nichols, 784 F.3d 666 (10th Cir. 2015); De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015).

Does Gorsuch matter?

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One view is that he will be a Scalia clone or near-clone. But Gorsuch has hinted, in opinions and speeches, that he believes that Chevron was wrongly decided, and that the nondelegation doctrine should be revived. He also has, on several occasions, approvingly cited Justice Thomas’ concurring opinion in Association of American Railroads, which expresses similar sentiments. Scalia defended Chevron; Thomas criticizes it. If Gorsuch turns out to replicate Thomas rather than Scalia, this could make a difference, yes? We would now have two votes on the Court, rather than one, that firmly oppose the administrative state.

No. My friend and coauthor Lee Epstein ran the numbers, which you can see above. (Note: the data are preliminary.) Whatever their doctrinal differences, Scalia and Thomas are themselves clones in administrative law cases. Colleagues tell me that while championing Chevron, Scalia evaded Chevron deference (at least, when the regulation in question advanced liberal goals) by finding statutes to be clear that others find ambiguous. A clone of Thomas is a clone of Scalia.

How does a populist govern?

I asked this question before Trump took office. Now we have some information. Trump won the election by running as a populist. What did this mean?

— He blamed corruption of governing elites for the bad state of the nation.

— He ran as an outsider, beholden to no one.

— He rallied support by identifying specific “enemies” of the nation, above all foreigners.

— He attacked establishment institutions, above all the press.

— He adopted a mixed ideology, including both liberal and conservative elements, in an attempt to appeal to both tails of the political distribution.

These commitments led directly to several major campaign tactics, which, while nearly unprecedented in recent American political history, are characteristic of populists in American history and around the world. These tactics included:

— Obvious lies and unkeepable (if only because mutually contradictory) promises.

— Vilification of political opponents.

— Implicit celebration of political violence.

— Vulgar language.

The purpose of these tactics was to separate Trump from the establishment. The establishment does not do these things. Why not? We can give two explanations.

The establishment’s view. The key to democracy is political competition. Political competition works only if we agree to rules of the game that prevent the incumbent party from destroying the out-of-power party. One such rule is: don’t prosecute former leaders (recall Obama’s refusal to prosecute Bush for torture.) A related rule: avoid personal attacks. By limiting the extent to which conflict is personalized, we maximize our ability to cooperate where we have common interests.

The populist’s view. This style of cooperation enables the establishment to enrich itself. The parties maintain the rules to ensure that (as much as possible) each party gets a turn to feed at the public trough. If they are throwing each other in jail, they will immiserate each other rather than enrich themselves. This is why the elites have fattened over the last 20 years at the people’s expense.

The problem for Trump now is how to maintain his anti-establishment bona fides—the basis of his political power—while sitting at the apex of the establishment. He faces numerous contradictions. He needs the bureaucracy to carry out his plans, but also to serve as the enemy that justifies his ascent to power. He needs the press to report his policies, but also to serve as a metaphor for the elite forces arrayed against him. He has blamed the courts for failing to enforce travel ban #1, but he needs them to enforce travel ban #2. He needs all of them to be his friend and his enemy. Every time he lashes out at someone, he weakens his institutional position. Every time he cooperates, he weakens his political position.

No wonder he has entangled himself in contradictions.

The attack on Obama seems like the latest, and surely most desperate, effort to avoid the dilemma. Safely out of office, Obama cannot directly retaliate. But Trump needs Obama. He needs the support of Obama appointees in the courts and Obama supporters who took positions in the civil service when Obama was still in office. He also needs Obama’s advice, and he may well need public statements of support from Obama in discrete cases. (News reports say that Trump wanted Obama to condemn the national security leaks, which Obama declined to do.)

Trump needs to make the move from populist to establishment figure if he wants to succeed as president.

More on Trump’s lies

A reader drew my attention to this piece by Masha Gessen, a Russia expert, who thinks that Trump has learned from Putin:

Lying is the message. It’s not just that both Putin and Trump lie, it is that they lie in the same way and for the same purpose: blatantly, to assert power over truth itself. Take, for example, Putin’s statements on Ukraine. In March 2014 he claimed that there were no Russian troops in newly annexed Crimea; a month later he affirmed that Russians troops had been on the ground. Throughout 2014 and 2015, he repeatedly denied that Russian troops were fighting in eastern Ukraine; in 2016 he easily acknowledged that they were there. In each case, Putin insisted on lying in the face of clear and convincing evidence to the contrary, and in each case his subsequent shift to truthful statements were not admissions given under duress: they were proud, even boastful affirmatives made at his convenience. Together, they communicated a single message: Putin’s power lies in being able to say what he wants, when he wants, regardless of the facts. He is president of his country and king of reality.

Trump has exhibited similar behavior, apparently for the same reason: when he claims that he didn’t make statements that he is on record as making, or when he claims that millions of people voting illegally cost him the popular vote, he is not making easily disprovable factual claims: he is claiming control over reality itself. Those puzzled by Trump’s election-fraud tweets, because they seem like sore-loser behavior on the part of the winner, or by his dismissing out of hand the CIA’s findings about Russian interference—against the views of many leading Republicans—are missing the point: Trump was demonstrating his ability to say whatever he wanted about the election, precisely because he had won it.

I don’t think this is right; in fact, I don’t think this is a coherent argument. What does it mean “to assert power over truth itself”? To be “king of reality”? To demonstrate one’s “ability to say whatever” one wants? These metaphors obscure rather than illuminate.

Putin and Trump are different. Putin leads an authoritarian state where journalists and political opponents are censored. He lies because he thinks he can deceive people, and he expects not to be contradicted by public figures, newspapers, or state institutions. (The Ukraine example is more complicated: he lied to give cover to western nations that did not want to issue sanctions.) Trump lives in a democratic society in which his every lie is immediately contradicted by the press, his political opponents, the opposition party, and even (sometimes) his subordinates.

Gessen’s claim that Trump shrewdly manipulates reality is contradicted later in her piece:

It appears that Trump receives a view of the world that is vastly different from that not just of the “liberal bubble” but of the majority of Americans: on one hand, The New York Times seems not to figure in his world, but on the other hand, neither does network television and, it would seem, CNN. There is no reason to think that Trump will broaden his world view once he is president. He has shown a notable lack of interest in daily intelligence briefings and in the State Department, whose expertise he has entirely ignored in his initial contacts with foreign leaders. And the utter disdain that he has displayed variously for the FBI (during the campaign) and for the CIA (since the revelations about its findings on Russia and the election) suggests he will insist on seeing only as much of the world as is convenient for him, through a prism that pleases him.

Gessen misses an important point about lying. You cannot lie unless you know the truth. Trump seems to be looking for media reports that will give him emotional sustenance by validating his world view. This is apparently the origin of the Obama wiretap claim. But if he is repeating what he thinks to be the truth, and trying to force his aides and subordinates to repeat it, when most people see reality for what it is, then Trump is not “king of reality.” He is merely damaging his credibility and that of his administration.

Trump and the angry grandpa theory of political dishonesty

One of the great puzzles of the Trump administration is the constant barrage of misrepresentations from Trump himself. In many cases, the misrepresentations are contradicted by observable facts (crowd size at the inauguration). In other cases, they are supported by no evidence whatsoever (the Obama wiretapping claim). Common sense tells us that a public figure who repeatedly lies will lose credibility with the public, even with his most loyal supporters, as well as with government officials, political leaders, interest groups, and others with whom he needs to cooperate.

Back in January, Tyler Cowen proposed a theory rooted in game theory:

By requiring subordinates to speak untruths, a leader can undercut their independent standing, including their standing with the public, with the media and with other members of the administration. That makes those individuals grow more dependent on the leader and less likely to mount independent rebellions against the structure of command. Promoting such chains of lies is a classic tactic when a leader distrusts his subordinates and expects to continue to distrust them in the future.

Another reason for promoting lying is what economists sometimes call loyalty filters. If you want to ascertain if someone is truly loyal to you, ask them to do something outrageous or stupid. If they balk, then you know right away they aren’t fully with you.

I was skeptical then, and I’m even more skeptical now. Of what value to a leader are subordinates who nobody believes?

The New York Times reports that none of Trump’s subordinates will back up Trump’s most recent wiretapping lies. It is possible that they fear being held liable in a defamation lawsuit brought by Obama. But according to Cowen’s theory, Trump ought to fire all his aides. That doesn’t seem likely.

There is a better theory for Trump’s tweets. Imagine you are at a family gathering, and you hear various shouts coming from the TV room in the basement. It’s grandpa. He’s watching Fox news (or, if you want, CNN), and raging at the stupidity of the world. Now give him a cellphone and a Twitter account. You’ve got Trump. The only puzzle is how grandpa got elected.

The decline of supreme court deference to presidents

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The graph shows the win rate of presidents in the Supreme Court. The historical win rate was well over 60%, reaching nearly 80% during the Reagan administration. It has declined steadily since then, bottoming out at close to 50% for Obama. It is easy to predict that Trump will do even worse. A 20 year trend begs for explanation.

What could it be? Lee Epstein and I evaluate four hypotheses.

  1. Increasing ideological distance between the president and median justice? No.
  2. A Court beating back executive overreach? No.
  3. A Court engaging in overreach itself? Maybe.
  4. The rise of a specialized Supreme Court bar? Maybe.

We’ll need to do more work in order find out for sure. Selection effects are complicated. But this paper presents some initial findings.

Will the new travel ban be blocked by the courts?

Peter Margulies says no in Lawfare. The new ban excludes lawful permanent residents, visa holders, and others with ties to the United States—and gives notice, in these ways satisfying due process concerns. By omitting mention of religious minorities in Muslim-majority countries, it avoids establishment clause and equal protection concerns. Margulies also says that the leaked DHS memos, which suggested that a travel ban would produce no security benefits, are marred by errors.

On purely legal grounds, one can find little to quarrel with Margulies’ argument. If this executive order had been issued by any other president, then it would have passed muster. But it was not issued in a vacuum. Two courts appear to believe that Trump was motivated by animus toward Muslims when he issued the first travel ban. Nothing in the new executive order will make them think differently. (Especially not the claim in the new order that the old “order was not motivated by animus toward any religion.”)

Animus is not disqualifying but the courts need to be persuaded that a valid security reason justifies the exclusion of nationals from the (now) six Muslim-majority countries (Iraq having been dropped because of its “close cooperative relationship” with the United States). The DHS memos, whatever their flaws, do not help Trump’s case. In fact, in light of the DHS memos, the new travel ban is infirm for the same reasons as the old ban, as found by the district court in Aziz v. Trump: (1) Trump’s campaign and post-campaign statements targeting Muslims; (2) the pretextual character of the legal analysis; and (3) the absence of endorsement of the security rationale by the national-security bureaucracy.

Trump’s argument, of course, is that the countries are dangerous and unable to control out-migration of terrorists, and that current vetting procedures are inadequate or might be. But he offers no proof. Talk is cheap, even when it comes from a billionaire. If any other president had made this argument, a court would say “fine,” proof or no proof. But Trump is not any president.

The rise of bilateral labor agreements

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In a new paper, Adam Chilton and I explore the exotic world of bilateral labor agreements. You can find the paper here. Abstract below.

Countries have entered several hundred bilateral labor agreements (BLAs), which control the conditions under which source countries send migrant workers to host countries. Using an original data set of 582 BLAs extending from 1945 to 2015, we conduct the first statistical examination of these agreements. We find that the standard explanation for BLAs—that they are entered into by countries with large differences in wealth and political regimes—is true for host countries are Middle Eastern, but this pattern reverses for other countries that have formed BLAs. We also find that countries that enter BLAs experience greater migration flows, though we are not able to verify that the BLAs cause these increases.

President Trump’s New Travel-Ban Executive Order and Normative Aggregation of Claims

Written with Ariel Porat

This week the Trump administration is supposed to issue a new travel ban executive order. The old one was blocked by courts because of two constitutional infirmities that were individually weak—but, we think, collectively powerful. This raises an interesting jurisprudential question: could two legal claims, none of them standing alone sufficient for granting a legal remedy, nevertheless justify such a remedy if made in the aggregate? Should "normative aggregation" be applied to this case?

The States argued that the prior Order infringed Fifth Amendment procedural due process rights and rights against religious discrimination, protected by the First Amendment and the Equal Protection Clause. The Court of Appeals for the Ninth Circuit, while upholding the District Court decision to issue a temporary restraining order ("TRO"), left open the question whether the Order constitutes infringements of constitutional rights of ALL persons subject to the Order.. Furthermore, in discussing the religious discrimination challenge, the court, while stressing that facially neutral language should not shield the Order from being challenged on the basis of intention to discriminate against Muslims, left open the question whether such intention can be established. A district court in Virginia later held that animus was at least plausible.

In an academic paper published a few years ago, we proposed a theory of normative aggregation of claims. The intuition underlying our theory is the following: if one has two (or more) claims against a defendant, where each of them standing alone does not reach a threshold beyond which a remedy is justified, sometimes the two (or more) claims combined reach such a threshold and justify a remedy. For example: if A rescinds a contract with B based on both "almost" material breach and "almost" material mistake, even if materiality (of breach and mistake, respectively) is a condition for rescission, A’s rescission might be valid, because the two bases for rescission, combined, justify it. In this latter case there is enough "contractual blameworthiness" on the part of B, and enough "contractual harm" on the part of A, to justify rescission.

An analogical argument is applicable to constitutional contexts: a statute, or an executive order, that "almost" violates two or more provisions of the constitution might be struck down even if each "almost violation" standing alone is not sufficient for this.

There is precedent for this argument. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court upheld a statute denying unemployment benefits to a person who had illegally used peyote in a religious ritual. The Court held that any “neutral” and “generally applicable” law survives constitutional challenge under the Free Exercise Clause even if it incidentally burdens religious practice. However, the Court also recognized a “hybrid” exception. Where a plaintiff can show that a neutral law burdens both religious practice and another constitutionally protected activity, the law will be struck down unless the government can show a compelling state interest. (The Court, did not apply the hybrid exception to the plaintiff’s claim, presumably because the plaintiff alleged that only one constitutional norm was violated).

The hybrid rights exception fits our theory of normative aggregation. If the normative aggregation concept is applied to President Trump’s Executive Order, aliens who might fail in challenging the Order on either due process or religious discrimination grounds alone might nevertheless succeed by challenging the Order based on the aggregation of the cliams. While neither of the claims, standing alone, reaches the threshold required for a remedy, the two claims combined might reach such a threshold.

The constitutional policy is easy to understand. We might think that a temporary travel ban that burdens people from Muslim countries could be justified, despite unequal treatment of people on the basis of religion, by even a moderate security risk. We might also think that a travel ban with weak procedural protections could be justified by an emergency. But where the ban both burdens a particular religion and does so without giving people sufficient procedural protections, the security justification must be significant rather than moderate.

The fog of Trump

Trump’s tweet accusing “President Obama” of tapping Trump’s phones is ingenious in its own, very Trumpian way. In ordinary speech, we attribute actions to the “president” that are actually those of his subordinates. Obama is responsible for everything that took place in the executive branch during his administration except clearly rogue behavior, and even then he was (and is) expected to take responsibility and (while still in office) ensure that it does not recur. Of course, “President Obama” also means the man himself. Trump characteristically exploits this ambiguity for maximum rhetorical impact.

The response of former Obama administration officials—that the White House did not “authorize” wiretaps—is itself characteristic of a certain type of political rhetoric. One might call it Clintonian. Legalistic and precise to a fault, yet fundamentally misleading. The surveillance (whatever form it took, which is not yet clear) was very likely authorized by the Attorney General, a high-level Obama appointee. The Attorney General is not a “White House official” but is loyal to the White House. Her involvement therefore raises questions about political interference with an election.

The real question is whether the initial authorization was justified, given the political implications. The law is straightforward. Once the FBI learned about possibly illegal contacts between Trump associates and Russian officials, it could with justification launch an investigation. It wasn’t even necessary to suspect a crime; the fear that the Russians were trying to influence the election was sufficient to launch a counterintelligence operation. And then once that investigation was in place, applications to the FISA court for surveillance authorization followed as a matter of course. The legal standard is low.

But the law does not exhaust the issue. The political question is paramount: under what circumstances should the government be allowed to engage in surveillance of members of a political campaign that opposes the government? A plausible first answer: if the republic is in danger, but not otherwise. The risk that an investigation will be based on plausible but ultimately spurious considerations is significant. Was the Trump investigation absolutely necessary in order to prevent harm, or was it instead an immensely attractive way of acquiring leakable information about Trump, to be used when needed.

It is easy to ridicule Trump for his clumsy, McCarthyite tactics, his reckless use of language and his typos. Easier still to wish he, or someone else in government, raised these issues in a responsible way.

But it’s wrong to dismiss these issues–whether an investigation of an ongoing presidential campaign, even if justifiable in a legal sense, can be politically justified . They go to the heart of democracy. This has become a pattern. Trump’s critics act as if by ridiculing his manner of communication, they also defeat the underlying argument that he is making. (Remember “seriously but not literally”?) Big mistake, both politically and as as a matter of policy.

Trump v. his lawyers

I’ve commented before on how Trump’s lack of discipline—displayed above all in his tweeting—undermines his own policies. Where conspiracy-theorists see Machiavellian manipulation of public opinion, I see chaos. A new and very good example comes from Judge Robart’s courtroom, again. Politico:

Seattle-based U.S. District Court Judge James Robart indicated in an order Friday that he agrees with challengers of the first ban that statements from Trump and his aides seem to be at odds with government attorneys’ promises that a new order will “rescind” the old one.

“Plaintiffs cite numerous contradictory statements by President Trump and others in his administration to the effect that they will continue to defend the Executive Order at issue in this litigation in addition to issuing a new Executive Order,” wrote Robart. “The court understands Plaintiffs’ frustrations concerning statements emanating from President Trump’s administration that seemingly contradict representations of the federal government’s lawyers in this and other litigation before the court.”

As between the chaos theory of the Trump administration and the Machiavellian theory, this is one more piece of evidence for the former.

The president is a they, not a he

My title is a labored pun on the title of a famous paper by Ken Shepsle entitled Congress is a “They,” not an “It”: Legislative intent as oxymoron. It makes little sense to treat a collective body as a single entity when determining “intent,” he scolds law professors. Watching the Trump administration flounder around, I realize that the same point can be made about the president—and not just Trump himself.

Trump’s problem is that he lacks the personal capacity to supervise the executive branch. He’s appointed a bunch of people as he must, hoping no doubt that they will divine his intentions and carry them out, but those people all disagree with each other. They must either resolve their disagreements through debate or carry on separately, committing the presidency to mutually inconsistent policies that confuse foes and allies alike.

Thus, we see people like Tillerson, Mattis, and Pence assure allies that the United States will uphold its NATO commitments, while Trump himself, channeling Bannon, says he wants to tear them up. Bannon also wants the U.S. to withdraw from the Paris climate agreement, while Tillerson and Ivanka Trump want the U.S. to stay in. On immigration, a range of possible positions have cycled through the airwaves—temporary bans on certain Muslims, on lawful permanent residents or not, a reduction of legal immigration, or a path to citizenship for DACA beneficiaries. Obamacare will be repealed, repaired, left alone, renamed Trumpcare. Taxes will be simplified or complexified, raised or lowered. Making the best of the confusion, Trump’s subordinates assure us that Trump is mature enough to welcome disagreement.

Trump is not the first collective president. He is the 45th. (Or 44th if you count Grover Cleveland as one rather than two presidents.) Lincoln’s chaotic administration was celebrated as a “team of rivals.” Franklin Roosevelt tolerated contradictory policies in the New Deal: this was much-needed “experimentalism,” or so it was said. Reagan famously couldn’t make a decision until his obstreperous subordinates reached a consensus and then told him what to do. But these guys were able to get a handle on things in a way that looks increasingly unrealistic for Trump.

The collective nature of the presidency complicates the standard arguments, going back to Hamilton, that the president should have primacy over Congress because, as a single agent, he can act more swiftly, secretly, and decisively. But while the president is legally a single agent, in practice he needs the support of his aides, which requires him to make concessions to them where necessary. He doesn’t just listen to their advice and make his own decision.

Trump hasn’t moved swiftly, secret, or decisively except by imposing a travel ban that was immediately blocked by the courts. Not swiftly because his subordinates can’t agree. Not secretly because his subordinates use leaks to undermine each other. Not decisively, because Trump doesn’t have a strong set of principles that he can use to resolve disagreement among his subordinates. Hamilton must have assumed a president with stronger skills and more developed views than Trump’s.

Of course, Congress is in even worse shape, with hundreds of nominally equal members. Its leadership needs a strong president to set direction for legislation. Not only is Trump unable to set a direction, but it must occur to Ryan, McConnell, and others, that Trump cannot even be trusted to sign a tax, health care, or immigration bill that embodies his (current) preferences. What Trump and his subordinates can agree to at time 2 is not necessarily what one or more of them say at time 1, especially if scandal-plagued subordinates are constantly circulating in and out of the administration. With a weakened presidency, one might predict that Congress would seize the reins of government. Gridlock and drift seem more likely.

Are human rights dead?

I debate with Professor Ian Hurd. I chose to define “human rights” as human rights law. He used a more capacious definition, treating “human rights” as any moral assertion by oppressed people against those with power. I agree that that kind of behavior is alive and well, as it has been for millennia, but that’s not what people mean by human rights.

Many people think of human rights as whatever a liberal democracy or a social democracy does. If that’s what human rights means, then it isn’t dead, but it’s hardly prospering either.

Will the new immigration order make a difference?

The major effect of the new immigration order is not to increase the number of deportations. It is to give border agents more discretion. Previously protected people (for example, those who committed minor crimes) may now be deported. But the financial and human resources available for deportation remain the same—unless Congress is willing to appropriate tens of billions of dollars in additional money for enforcement, which it hasn’t, not yet, and—in my view—probably won’t. This means that the number of deportations will not increase, or not significantly.

The effect is the reverse of what conservatives normally seek from agencies. In the case of environmental protection, health and safety, financial regulation, and the like, conservatives typically complain that regulators enjoy too much discretion. “Just tell us the rules,” they say. They argue that discretionary regulation creates excessive uncertainty, which interferes with planning, and subjects them to blackmail from regulators with political agendas.

Does this argument apply to immigration? Yes, it does—at least, if immigration authorities carry through the ban as promised. Previously protected people now face greater uncertainty—they might be deported whereas in the past they knew they would not be. But if so, it follows that classes of undocumented aliens who previously faced deportation with a high probability now face a lower probability. The major such class comprises those who have committed violent criminal offenses. Do we really want them to worry less about deportation?

I also suspect that it is cheaper to deport violent felons than ordinary people. A violent felon is deported after he completes his prison sentence. He’s loaded on a bus or plane and off he goes. By contrast, non-criminals will be able to obtain continuances and make due process challenges, which are costly for the government to counter. In some cases, they will be held in detention centers—an additional cost that was not incurred under the old system. There is a reason that not only Obama but Bush mainly deported the criminals.

Which makes me think that border agents will use their new discretion to do exactly what they did under Obama and Bush: deport the violent criminals while letting the others stay in the country. The overall effect, then? PR.

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School