All posts by Eric Posner

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.


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?

adlaw votes

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

pres jus

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.