Trump class #4: Immigration; The Travel Ban Executive Order

[Yes, the class met weeks ago. I’ve fallen behind.]

Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015)

Executive Order: Protecting the Nation from Foreigner Terrorist Entry into the United States, Jan. 27, 2017

Washington v. Trump, Ninth Circuit

Aziz v. Trump, Eastern District of Virginia

Executive Order: Protecting The Nation From Foreign Terrorist Entry Into The United States (2), March 6, 2017

Sarsour v. Trump, Eastern District of Virginia

Borjas, The Immigration Debate We Need, New York Times, Feb. 27, 2017

Higham, Strangers in the Land, chs. 3-4 (2011)

Adida et al.., Muslims in France: Identifying a Discriminatory Equilibrium, Journal of Population Economics, 27, 1039 (2014)

Many in the class seemed to think, and I agree, that the legal case against the travel ban was not strong. Why have so many courts ruled against the Trump administration? A few colorful hypotheses—that the judges are asserting their independence, that they loathe Trump and everything he stands for, that they think the executive orders are not really driven by security concerns. Or perhaps that the security concerns advanced publicly by the Trump administration are not the real security concerns that motivate them?

We can think of several types of concerns behind a travel ban. (1) The conventional, and obviously legitimate, worry that some particular group poses an immediate security threat—that they, or some non-trivial portion of them—enter the country with the intention of doing harm. (2) The more speculative worry that, even if they enter with benign motives, they will in the near future become radicalized and take up arms, or radicalize Americans, or some such thing. (3) The much more speculative worry that they will stay in the country, legally or not, and reproduce, producing an unassimilated minority group that eventually generates low-level but persistent serious social and security problems as in France (see the Adida et al. paper). (4) An entirely different concern—that they will push down wages and drain social services. (5) Various symbolic or cultural harms or racial harms—that they will spread illiberal ideas, or dilute the racial stock, or some such thing.

I suspect that Trump or some combination of advisers are possibility worried about (1) and (2), but are much more concerned about (3), (4), or (5). Some of Bannon’s and Trump’s statements can be interpreted as reflecting the latter group of concerns. But an executive action to block entry based on public rationales (3), (4), and (5), and probably (2) as well, would provoke a very strong political backlash, and would be rejected by the courts as well. Hence the emphasis on (1) in the executive orders themselves and related statements. But the judges don’t believe them.

Could (2), (3), (4), or (5) be legitimate justifications for restricting immigration? What if the administration had admitted these motives? Or persuaded Congress to endorse them and incorporate them into a statute? But Congress never would. The “establishment” would have none of it, despite (or because of) the long history of exclusion based on just these reasons in the United States. But why not, exactly? This is a bridge too far in current conditions, but it is the bridge on which many of Trumps’ supporters congregate.

Impeachment pros and cons

Pros:

1. Trump is unfit to govern. As explained in an excellent piece by Bob Bauer in Lawfare, we are experiencing an ongoing “governing crisis,” as a result of Trump’s character flaws. Vice President Mike Pence, who (unlike Trump) has political experience and seems at least competent, would ascend to the presidency. While liberals might worry that a unified Republican government led by a competent president would pass damaging legislation, the alternative—an incompetent government mired in a continuous crisis—is worse.

2. An impeachment could help strengthen political norms that Trump has broken. Chief among them:

a. The norm against conflict of interest and concealment of financial interests.

b. The norm against political interference in law enforcement functions.

Cons:

1. Impeachment might fail. If proceedings do not rouse sufficient public opinion against Trump, then a majority of House members will not vote for impeachment, and a supermajority of Senators will not vote for conviction. A failed impeachment could strengthen Trump and weaken his critics. The impeachment of Clinton actually increased public support for him as measured by the polls.

2. Trump’s worst behavior does not rise to the level of “high crimes and misdemeanors.” Specifically:

a. The attempt to obstruct justice is alleged, not proven; even if Trump did attempt to obstruct justice, he failed, as the investigation of the Russia ties continues.

b. The leaking of intelligence to the Russians may not have happened, and even if it did, it may have been justified, or reasonable under the circumstances, or excusable in some way.

c. The financial conflicts of interests are not illegal, and were known during the campaign, and hence endorsed, implicitly at least, by voters.

d. Trump’s various other actions—attacks on the press and the courts, boorish political attacks, and much else—have not resulted in any identifiable harm to any person or institution.

3. Therefore, impeachment of Trump would only weaken the presidency by normalizing an instrument that could be used for partisan purposes, or as a matter of routine, by Congress against the president, even a competent one. A weakened presidency and empowered Congress is a recipe for gridlock in our polarized age.

4. Impeachment would create lasting resentment among Trump’s supporters, and strengthen their conviction that the government is controlled by corrupt elites. This would in turn feed the populist movement for years to come, worsening political turmoil and gridlock.

My vote: No.

Not the 25th amendment

Contrary to Ross Douthat, the 25th Amendment is no solution to the problem of Trump. The simple problem is that it would require Vice President Pence to take the leading role, and Pence lacks the political power to pull it off. He must initiate the process by transmitting to Congress a “declaration that the President is unable to discharge the powers and duties of his office,” signed by other executive branch officials. Moreover, he would “immediately assume the powers and duties of the office as Acting President.” This would clearly look like a coup—to the world, to Americans, and, crucially, to Trump’s many remaining Republican supporters, whose support Pence would need as a vulnerable unelected president. It hardly needs to be added that Trump can obviously “discharge the powers and duties of his office”—he just does it very badly. On top of all this, the 25th Amendment—unlike impeachment—requires 2/3 in the House as well as in the Senate. A flimsy pretext along with enormous political hurdles that put all the focus on the one person who would most directly benefit from Trump’s removal—nothing could be a more perfect recipe for disaster.

Impeachment is a better option. A plausible obstruction of justice charge qualifies as a “high crime or misdemeanor,” and in any event impeachment is a political act, which requires no specific legal violation. That said, impeachment is premature, and is hardly worth discussing, until Republicans are ready to distance themselves from Trump.

A (very reluctant) defense of Trump’s firing of Comey

An employer faces a problem worker. The worker has botched several important assignments and ought to be fired. But there’s a problem. The worker has also disclosed wrongdoing in his workplace to the government. This means that the worker may be protected by statutory or common law whistleblower rules, which prohibit employers from retaliating against whistleblowers by firing them. What should the employer do?

He should fire the worker. If the worker cannot handle the job, he should make way for someone who can. It’s true that the employer also benefits—it may be that the government investigation based on the worker’s disclosures will grind to halt if the worker stops cooperating so he can find another job, or other workers fail to cooperate because they are afraid of being fired. But in a broader sense, the policy behind the whistleblower statutes and standard labor market prescriptions are reconciled. Workers will be deterred from incompetence; conditional on doing the job properly, the incentive to blow whistles will be preserved. The law should allow the employer to fire the worker.

Let us apply this analysis to Trump and Comey:

1. Comey seriously botched the investigation of Clinton. Hardly anyone defends him. Today, Trump’s critics implicitly argue that the Clinton error was a one-off thing. They continue to insist that Comey can be trusted to lead the FBI. Why exactly? Another possibility, which seems quite plausible, is that Comey does not belong at the head of the FBI. He can’t be trusted.

2. Trump harbored a strong motive to fire Comey, and—according to press reports—acted on it. He was frustrated that Comey was vigorously pursuing the Russia investigation, to Trump’s (apparent) detriment. However, if my earlier comments are right, this is not a sufficient reason for keeping Comey on the job. Indeed, Trump continues to face an investigation, and his act heightened distrust rather than ended his problems. He may have trouble appointing a loyalist to replace Comey.

3. Is it excessively optimistic to believe that in future FBI directors will avoid repeating Comey’s errors?

Many people complain that Trump has “politicized” law enforcement. The truth is that law enforcement is inherently political when turned against itself. The president is the chief law enforcement officer; he determines law enforcement priorities and policies. What happens when the president is suspected of unlawful behavior? In our system, this can only be described as a serious problem, one that has never been resolved.

The major effort was the post-Watergate independent counsel statute. This statute provided for the creation of independent counsels who were given the authority to investigate and bring charges against executive branch officials, including the president. The independent counsel was not subject to the authority of the Justice Department or president, and so could not be blocked from investigations.

Congress allowed the statute to lapse in 1999. By then, it was clear that the independent counsel statute caused more harms than benefits. The problem was that the decision to investigate and prosecute is shot through with political calculations, and lodging the authority to make those calculations in a free agent, unconstrained by public opinion, led to endless fishing expeditions and forms of harassment that undermined the effectiveness of the president and the executive branch. The notion that law enforcement—especially law enforcement directed at the president—can truly be apolitical died with the statute.

Where does this leave us? Politics may well be more effective than law, or “unwritten constitutional norms” as they are sometimes called. Trump has seriously damaged himself, thanks to the typically Trumpian incompetence with which the hatchet was swung. The timing, leaks, obvious vindictiveness, and much else, has further eroded public trust in Trump’s ability to manage the executive branch, and further raised suspicions about his ties with Russia. As Republicans in Congress begin to worry about reelection, they may push back. That may be the best we can hope for.

On the firing of Comey

In an ingenious bit of Machiavellian jujitsu, Trump fired Comey for incompetence, simultaneously: (1) eliminating an independent official who might act as a check on illegal behavior, (2) paving the way for the appointment of a stooge, and (3) enhancing Trump’s tough-guy image. Meanwhile, the Democrats are rendered mute by their earlier charge that Comey mishandled the Clinton email investigation, and Trump can no longer be accused of rewarding Comey for handing over the election to him. It’s hard to imagine a tidier outcome for Trump.

Has Trump increased the power of the presidency?

A New York Times article claims that he has, but does not provide any evidence or even an example that the author cites as illustration of the claim. The claim seems more like a journalistic tic than anything else.

What does it mean to say that the president has increased his power? This answer is surprisingly difficult to answer. Trump has not accomplished very much. He does seem to have increased deportation—though it is not clear he has, maybe he has just shifted priorities and garnered news coverage from reporters who assumed he would. But the president already possesses the power to deport people—to decide how strictly to enforce the immigration laws. In the area of immigration, Trump is exercising the same power that his predecessors had.

Most discussions of presidential power focus on the institutions that constrain the president. If Trump abolished the judiciary, then we would assume that his power has increased. But Trump has not abolished the judiciary. He has criticized it in ways that are troubling, but the courts seem unintimidated. They have blocked his immigration-related orders, using Trump’s statements against him in a way that courts have never done before in presidential-powers litigation. Trump’s rhetorical attacks on the judiciary seem to have weakened him, at least for now.

Trump’s election has revived the press. His rhetorical attacks have done nothing to stop this revival, while he has not taken any concrete steps to restrict the press’ power. Left-leaning organizations like the ACLU have been showered with money and prestige. They help finance the litigation that has blocked Trump’s initiatives. State and local governments are refusing to cooperate with his deportation programs. Civil servants in federal agencies have leaked his plans, causing political embarrassment and mobilizing opposition.

Then there is Congress. With party majorities in both houses, a president would normally be in an enviable position. Yet Trump has failed in his legislative program so far, while committees have—albeit reluctantly—launched investigations of his Russia ties. The most notable incident was his failure to persuade Congress to appropriate funds for the Mexican border wall—his signature promise to the Trumpian faithful. He has also been slow to make appointments, possibly because of worries that the Senate will not confirm the people he nominates.

Trump’s failure in Congress can be traced to yet another constraint—the president’s dependence on establishment leaders, especially (but not exclusively) in the Republican party. Trump, hampered more than his predecessors by his lack of knowledge about government and the world, has depended on his advisors more than most. Outside of military affairs, he has turned to business leaders. Business has nothing in common with Trump’s supporters, and has been steering him toward conventional Republican business-friendly policies, both domestic and international. If Trump triumphs in his deregulatory agenda—and it is far from clear at this point that he will—should that be interpreted as a result of presidential power or as a result of its failure?

But we’re only at 100 days. Trump’s attacks on the press, the courts, and (increasingly) Congress and the party system, might do long-term damage to these institutions by causing the public to see them as narrowly partisan rather than devoted (as they like to claim) to the national interest. But unless Trump can establish himself as trustworthy and competent to more than a narrow band of the electorate, it is hard to see how these efforts could result in an increase in presidential power. More likely, he will further reduce his own power as people transfer their loyalty from the president to institutions that seem more trustworthy. Or, maybe he will reduce the power of these institutions—by persuading people not to trust them—and the presidency as an office. In short, he might accelerate the long-term decline in public confidence in the national government and further erode its capacity to govern. That’s not a story about the rise of presidential power but about the decline of the national government as an effective source of authority.

Trump class #4: Immigration; The Travel Ban Executive Order

Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015)

Executive Order: Protecting the Nation from Foreigner Terrorist Entry into the United States, Jan. 27, 2017

Washington v. Trump, Ninth Circuit

Aziz v. Trump, Eastern District of Virginia

Executive Order: Protecting The Nation From Foreign Terrorist Entry Into The United States (2), March 6, 2017

Sarsour v. Trump, Eastern District of Virginia

Borjas, The Immigration Debate We Need, New York Times, Feb. 27, 2017

Higham, Strangers in the Land, chs. 3-4 (2011)

Adida et al.., Muslims in France: Identifying a Discriminatory Equilibrium, Journal of Population Economics, 27, 1039 (2014)

Many in the class seemed to think, and I agree, that the legal case against the travel ban was not strong. Why have so many courts ruled against the Trump administration? A few colorful hypotheses—that the judges are asserting their independence, that they loathe Trump and everything he stands for, that they think the executive orders are not really driven by security concerns. Or perhaps that the security concerns advanced publicly by the Trump administration are not the real security concerns that motivate them?

We can think of several types of concerns behind a travel ban. (1) The conventional, and obviously legitimate, worry that some particular group poses an immediate security threat—that they, or some non-trivial portion of them—enter the country with the intention of doing harm. (2) The more speculative worry that, even if they enter with benign motives, they will in the near future become radicalized and take up arms, or radicalize Americans, or some such thing. (3) The much more speculative worry that they will stay in the country, legally or not, and reproduce, producing an unassimilated minority group that eventually generates low-level but persistent serious social and security problems as in France (see the Adida et al. paper). (4) An entirely different concern—that they will push down wages and drain social services. (5) Various symbolic or cultural harms or racial harms—that they will spread illiberal ideas, or dilute the racial stock, or some such thing.

I suspect that Trump or some combination of advisers are possibility worried about (1) and (2), but are much more concerned about (3), (4), or (5). Some of Bannon’s and Trump’s statements can be interpreted as reflecting the latter group of concerns. But an executive action to block entry based on public rationales (3), (4), and (5), and probably (2) as well, would provoke a very strong political backlash, and would be rejected by the courts as well. Hence the emphasis on (1) in the executive orders themselves and related statements. But the judges don’t believe them.

Could (2), (3), (4), or (5) be legitimate justifications for restricting immigration? What if the administration had admitted these motives? Or persuaded Congress to endorse them and incorporate them into a statute? But Congress never would. The “establishment” would have none of it, despite (or because of) the long history of exclusion based on just these reasons in the United States. But why not, exactly? This is a bridge too far in current conditions, but it is the bridge on which many of Trumps’ supporters congregate.

Trump class #3: What is Trumpism? Why was Trump elected?

The readings:

Part 1. The Election

Lafsky, The Complete History of Dirty Politics: A Q&A on Anything for a Vote, Freakonomics (2007)

Profiles of U.S. Presidents, Richard M. Nixon—Dirty Tricks

Washington Post, Trump’s Campaign Promises [skim!]

Silver, Education, Not Income, Predicted Who Would Vote For Trump, Nov. 22, 2016

Osnos et al., Trump, Putin, and the New Cold War, New Yorker, March 6, 2017

Part 2. What is Trumpism?

Public Decius Mus [Anton], The Flight 93 Election, Claremont Review of Books (2016)

NPR, Interview of Richard Spencer, Nov. 17, 2016

Chait, Donald Trump, Pseudoauthoritarian, New York, Feb. 21, 2017

Taub, White Nationalism Explained, New York Times, Nov. 21, 2016

Inglehart & Norris, Trump, Brexit, and the Rise of Populism: Economic Have-Nots and Cultural Backlash (2016)

I taught this class a few weeks ago, based on assignments chosen about a month before that, and it hasn’t taken long for them to seem dated. At one time, I would have defined Trumpism as “economic nationalism + cultural backlash + personalist leadership.” That is the rhetorical Trump that carried him to victory in the primaries. I’m not sure it helped him much in the general election, where he mainly depended on Republican party stalwarts to show up to cast the ballot. After he was elected, Trump filled his cabinet with plutocrats, not populists. According to media reports, the populists’ standard bearer, Steve Bannon (a plutocrat-populist), is being shoved aside by Wall Street types in the administration.

Trump’s economic nationalism has generated few policy changes, just a lot more talk, while he has backed away from it by reversing his position on the export-import bank and other issues. On the cultural backlash front, many of his decisions seem little more than reflections of conventional Republican policy views—that, plus an occasional all-white-men photo. He’s even dropped much of his politically incorrect rhetoric and has adopted the politician’s conventional stance of obeisance to any group with political power.

By hurdling some cruise missiles into Syria, Trump might have hoped to strengthen his macho bona fides, but the action just made him look like every other modern U.S. president, and disappointed his intellectual followers who saw in him something new. The “personalist” style—the tweets and the reckless statements and the symbolic politics—have done him little good, producing an elite backlash among the press, the judiciary, and even the Republican Congress. While the base might like it, the base might also eventually catch on that Trump has accomplished little that he promised them and has instead kowtowed to the Establishment.

If the major element of Trumpism is anti-immigrant sentiment, as Anton argues, he has little to show for it. There is the botched travel ban and now the surrender to Congress on the Mexican border wall, and—this just in!—another defeat in court, this time on sanctuary cities. “Trumpism” might be remembered as a style of political bloviating rather than a set of substantive positions, one that the Democrats have already begun to imitate without having to give up any of their political commitments.

Trump class #2: Trump and the separation of powers

For our second class (which met a few weeks ago), I assigned the following readings.

Levitsky & Loxton, Populism and Competitive Authoritarianism in the Andes, Democratization, 20, 107 (2013)

Corrales & Penfold-Becerra, Venezuela: Crowding Out the Opposition. Journal of Democracy, 18, 99 (2007)

Valenzuela, Latin American Presidencies Interrupted, Journal of Democracy, 15, 5 (2004)

Pepinsky, Life in Authoritarian States Is Mostly Boring and Tolerable, Vox, Jan. 9, 2017

Feldenkirchen et al., Donald Trump Is the World’s Most Dangerous Man, Spiegel Online, Feb. 1, 2016

Blackman, Donald Trump’s Constitution of One, National Review, May 12, 2016

Brownstein, The Formidable Checks and Balances Imposing on President Trump, Atlantic, Feb. 16, 2017

The question I wanted to discuss is, What happens when a populist figure comes to power in a system characterized by separation of powers? Latin America seemed like a good place to look. In most (all?) Latin American countries, a presidential system prevails, unlike in Europe and elsewhere, where parliamentarianism is the norm. And the answer, if the Latin American example holds, is that the leader clashes with the legislature and the judiciary, which typically remain in the hands of the elites. Either gridlock or institutional damage results. Political scientists use the label “competitive authoritarianism” to capture a common feature of these regimes: while different groups compete for power and sometimes take turns (unlike in a real dictatorship), the group in power uses the resources of the state to suppress opposition and give itself advantages during the next election. Venezuela is Exhibit A.

Whatever one thinks of Trump, or our current political system, the U.S. seems far from a system of competitive authoritarianism in the Latin American style. It might help that, apparently at least, the Republicans control both the presidency and Congress. But the apparent unity masks a significant divergence: the congressional Republicans belong to the elites, while Trump won the election on a populist platform. It is becoming clear that Trump will either need to abandon his populist policies or clash with his nominal allies in Congress. The failure of Obamacare repeal may be the first sign of gridlock. The showdown over the budget, which centers around Trump’s popular but absurd promise to build a border wall, may be another.

Gorsuch’s bizarre “frozen trucker” opinion

Many people have commented on Gorsuch’s dissent in TransAm Trucking v. Administrative Review Board. Jed Shugerman presents a good account here. The case involved the interpretation of a law that forbids employers to fire an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public.” The truck driver in the case had pulled over to the side of the road and was in serious danger of hypothermia because the heater in his cab had broken down. The employer ordered him to stay put until a repairman arrived. After waiting hours, the driver unhitched the trailer and drove away to warm up, then returned to meet the repairman. The employer fired him.

The majority ruled that the employer violated the statute. While the driver operated rather than “refused to operate” the vehicle, the employer clearly retaliated against the driver for refusing to follow an order that would have put his safety at risk. Gorsuch dissents:

The term “refuse” means “[t]o decline positively, to express or show a determination not to do something.” 8 The Oxford English Dictionary 495 (2d ed. 1989). Meanwhile, “operate” means “[t]o cause or actuate the working of; to work (a machine, etc.).” 10 id. at 848. Putting this together, employees who voice safety concerns about their vehicles may decline to cause those vehicles to work without fear of reprisal. And that protection, while significant, just does not give employees license to cause those vehicles to work in ways they happen to wish but an employer forbids. Indeed, my colleagues’ position would seem to require the addition of more than a few new words to the statute. In their view, an employee should be protected not just when he “refuses to operate a vehicle” but also when he “refuses to operate a vehicle in the particular manner the employer directs and instead operates it in a manner he thinks safe.” Yet those words just aren’t there; the law before us protects only employees who refuse to operate vehicles, period.

Gorsuch’s weird literalism, so obviously in contradiction to the sense of the statute, is hard to fathom. By his logic, a driver who disobeyed an order to drive his truck at an unsafe speed and instead drove it at the speed limit would not be protected by the statute. Driving is “operating,” after all. The driver’s only recourse would be to stop the vehicle immediately–perhaps to pull the key out of the ignition so he won’t “cause the vehicle to work” by pulling it over. Gorsuch is too smart to make such a boneheaded error. What gives?

A clue appears in the peroration at the end of the opinion:

The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood. Maybe Congress found it easier to agree that an employee has a right to sit still in response to his employer’s order to operate an unsafe vehicle rather than try to agree on a code detailing when and how an employee can operate a vehicle in a way he thinks safe and appropriate but his employer does not. Maybe Congress would not have been able to agree to the latter sort of code at all. Or maybe it just found the problem too time consuming and other matters more pressing. Or maybe it just didn’t think about the problem at all. Whatever the case, it is our job and work enough for the day to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.

Gorsuch is sending off signals to Federalist Society headquarters. He asserts, mainly in code, that he subscribes to textualism, the reigning conservative theory of interpretation. This is good to know, but it has nothing to do with the case. Even when Congress makes compromises, or rushes through drafting, or fails to anticipate every possible future contingency, it depends on courts to give a reasonable interpretation of its statutes. Otherwise, courts undermine those statutes rather than enforce them.

Should the Democrats filibuster Gorsuch?

Game theory is a branch of mathematics that enables the analyst to rigorously analyze a decision problem in order to come to a completely indeterminate conclusion. The game-theoretic accounts of the filibuster question illustrate this axiom. They often start with the idea that Republicans and Democrats in the Senate are playing a repeated prisoner’s dilemma. The Democrats must filibuster the Republicans in order to retaliate against the Republicans for refusing to hold hearings on Garland. Otherwise, the Republicans can get away with cheating. But it’s far from clear that Democrats do best by retaliating rather than attempting to reestablish a cooperative equilibrium (where their payoffs are, by hypothesis, greater). Meanwhile, if the Republicans sincerely think that refusing to hold hearings on Garland was justified retaliation for the Democrats’ elimination of filibusters for lower court judges during the Obama administration, then they will regard the Democrats’ filibuster of Gorsuch as cheating, justifying another round of retaliation, to the Democrats’ detriment. It is possible that the game is not worth the candle for one or both sides. Do Republicans really care if they can no longer filibuster nominees if the Democrats take the presidency and the Senate? How likely is that, and will anyone remember any of this in 2020 or 2024, and more to the point, how do the Republicans know that the Democrats won’t, at that moment, abolish the filibuster in any event?

Then there is the question of cooperation within parties. If the Republicans abolish the filibuster, that will enhance the power of the extremists at the expense of the moderates. Why would the moderates agree to a loss of power? Or maybe the extremists can arrange a payoff of some sort. Democrats who criticize the Gorsuch filibuster argue that they should keep their powder dry until one of the liberals leaves the court, but is there any reason to think that Democrats will have an easier time then? Who knows.

Here is another, simpler way to think about the Gorsuch filibuster. It has nothing to do with inter-party cooperation in the Senate, but is a referendum on Trump.

Confirmation of Gorsuch would be Trump’s first real success as president. If Democrats block confirmation, they will strengthen the impression that Trump is in over his head, a political loser. Everyone will interpret the refusal of Republican moderates to support the nuclear option as evidence of the toxicity of the Trump brand.

If Democrats lose the confirmation fight, then Trump will receive a political boost. But will the boost be greater than the boost that he would have received from a Gorsuch confirmation in the absence of a filibuster? I think not. Gorsuch’s confirmation, in other words, provides an opportunity to express publicly the intensity of opposition to the Trump administration. The filibuster is just the means for expressing a high degree of opposition. Trump is one of the least popular presidents in modern history; what do the Democrats have to lose?

Trump and the Constitution: populism

I’m teaching a seminar called “Trump and the Constitution.” You can find the current version (of the ever-changing) syllabus here: Trump syllabus. Our first class looked at the history of populism.

Class 1. Populism in the United States

Remini, Andrew Jackson, chs. 1, 5-8

Goebel, The Political Economy of American Populism from Jackson to the New Deal, 11 Stud. in Amer. Pol. Dev. 109 (1997)

Sanson, “What He Did and What He Promised to Do…”: Huey Long and the Horizons of Louisiana Politics, Louisiana History: The Journal of the Louisiana Historical Association (2006)

Bannon, Comments at Vatican Conference (2014)

Trump, Inaugural Address (2017)

We also watched a video of Trump’s visit to the Hermitage, and the famous “hick” speech from All the King’s Men.

Bannon claims the populist mantle for Trump. Is he right to do so?

Trump certainly mouthed populist themes on the campaign trail. He railed against the “elites,” the corruption of Washington, and the party establishment. He purported to act on behalf of working men and women. He appealed to people who felt left out.

Still, Trump is no Jackson. Jackson was an experienced office-holder, a professional politician. Read Jackson’s inaugural address: it could hardly be more tame. Long was also an experienced, professional politician. Both Jackson and Long were considerably more politically knowledgeable than Trump is. They seem a lot more intelligent, or at least, sophisticated about politics. Watch this video of Long.

Both Jackson and Long had strong ideological commitments, which they pursued relentlessly. The question arose in class whether Trump does as well. One view is that the does not—he is an authoritarian without a cause. The other view is that he does—he is an economic nationalist above all. We will see.

Both Jackson and Long are remembered for paying scant heed to checks and balances. But while Long is frequently condemned (possibly unfairly) as a kind of proto-fascist, historians admire Jackson for strengthening the presidency at a time when it may have been too weak. At the same time, he did not always use his powers to advance the public interest—the destruction of the Second Bank of the United States comes to mind. And whatever Jackson’s intentions, he fell prey to an inherent logic of politics—throwing out the old elites, but replacing them with another set of elites, his wealthy supporters, rather than the “people.” There is not much in this history to make us optimistic about Trump except that we survived it.

Is a system of checks and balances compatible with populism, authentically pursued? Or does one or the other have to give?

We will revisit the relationship between populism and separation powers later this week, when we take a look at “competitive authoritarianism” in the Latin American presidential systems.

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.

gorsuch

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).

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