Last night, my wife and I debated how Trump would react to Gorsuch’s statement that Trump’s attacks on the judiciary were “demoralizing and disheartening.” There seemed to be only two possibilities: say nothing or rebuke his own appointee. Trump, not for the first time, flummoxed both of us. He instead called the senator who reported the comments a liar, even though a White House staffer had confirmed them.

This effort to cut the Gordian knot accomplishes nothing. Democratic senators will ask Gorsuch again and again at his confirmation hearings whether he said these words or not. Gorsuch will be forced to say that he did (and, I hope, will go farther and say that he condemns Trump’s statements). Trump will be forced once again to take a position on his nominee, either acquiescing with silence in his own nominee’s repudiation of Trump’s behavior, or attacking Gorsuch head on rather than (as I interpret Trump’s tweet) indirectly. (“He couldn’t have said that about me; therefore, the senator must be lying.”)

It’s worth thinking about the possible calculus that would lead to withdrawal of the nomination. More informed people than I declare such a course of action impossible. The political damage would be immense. But it would have some logic, at least under the non-Euclidean principles of the Trumpian universe.

1. Trump demands loyalty, and punishes, with overwhelming force, those who betray him.

2. Trump could easily replace Gorsuch with Pryor or another conservative, appeasing the Federalist Society-types and evangelicals who seek a justice in the mold of Scalia.

3. Having taken the political hit from withdrawing his own nominee, Trump’s threat to treat any future nominee in a similar way will be extremely credible.

4. Future nominees will keep mum about Trump’s attacks on the judiciary in order to avoid having the prize taken away from them, which will reinforce Trump’s goal—to damage the credibility of the judiciary as a whole. Calculating that Republican senators will confirm them whatever they say, future nominees will act accordingly.

Other commentators have pointed out that Trump has let his other nominees contradict him without retaliating against them. Mattis, for example, rejected Trump’s embrace of torture, and Trump mildly commented that he will defer to Mattis’ greater expertise.

But circumstances are different, or appear so. If Trump seeks to bend the judiciary to his will, then he will not be able to tolerate a dissenter at the top of the hierarchy. Trump has not attacked the military. And one more thing. All presidents—not just Trump—expect loyalty from the justices that they appoint with respect to the projects and programs of most importance to the president. Has it occurred to Trump that Gorsuch may be the tie-breaker if Washington v. Trump reaches the Supreme Court after Gorsuch takes office?

Update: If the report below is correct, Gorsuch will try to make things easier for Trump by insisting that he was speaking in generalities (“the importance of an independent judiciary”) and not about Trump in particular (“a political matter” that a judge cannot comment on without violating the Code of Ethics”).

Gorsuch clarifies what he’s been saying in private conversations, via a statement from Kelly Ayotte, who is helping Trump get him confirmed. pic.twitter.com/4dzrI5sPpt

— Jennifer Jacobs (@JenniferJJacobs) February 9, 2017

Washington may win a partial or full victory this round, but I don’t think it can win in the long run.

Imagine that a judge had asked: “if we knew that Trump acted on anti-Muslim animus AND that the seven countries posed special security threats, what is the right outcome under the Establishment clause?”

The answer must be, I think, that the government wins. Otherwise, the government would be unable to protect people if the president is a bigot. No court would come to that conclusion.

Also note that a court will ultimately have to defer on the security issue; it won’t require deposition of CIA agents. So even if the evidence of a national security threat is less than perfect, the government wins.

I’m looking for someone who will provide a legal or constitutional defense of Trump’s attack on the courts. The absence of such a defense poses problems for Trump’s critics: they are flailing away at real and imagined arguments without knowing where to aim their fire.

Remember the Bush 2 and Reagan administrations? Officials in both administrations really did take the trouble to set out explanations for their actions. Both administrations believed that the presidency had been enfeebled by post-Watergate legal reforms, and sought to revive the office. To do so, they argued that Article II of the Constitution conferred on the executive vast powers that Congress was powerless to oppose, and that the post-Watergate presidency could not protect the country from foreign threats. Notably, their hostility was directed at Congress rather than the courts—no doubt because the courts were deferential to the executive in the area of foreign affairs, while Congress was the author of the post-Watergate reforms, and was a constant irritant as both administrations sought to expand presidential powers. Both administrations clashed with Congress but not with the courts—in the sense that they both were willing to defy Congress by refusing (or threatening to refuse) to comply with some of its laws or orders but neither of them disobeyed a court. (While the Reagan administration disagreed with huge swathes of constitutional doctrine, it sought to change that doctrine from within by appointing ideologically committed conservative judges and justices.)

What might the Trumpian view be? It could be an updated version of the Bush/Reagan view. Now the threat comes from the judiciary rather than from Congress, which is firmly under Republican control. But the Trump administration has not made the case that the judiciary as a whole is out of control, cannot be trusted, is politically biased, lacks competence, or in any way has exceeded its constitutional authority. Contrast Franklin Roosevelt, who argued that a majority of the Supreme Court justices sought to defend an old order that benefited moneyed interests and were politically opposed to his New Deal reforms. Agree or disagree with Roosevelt, he laid out his case. If Trump’s argument is that the judiciary gives insufficient deference to the president in the area of national security, he has jumped the gun. While the Supreme Court has ruled against the Bush administration’s counterterrorism policies in a few cases, the practical effect of those rulings was limited; the judiciary as a whole largely acquiesced. Judicial doctrines that touch on national security give significant leeway to the president.

Another possible theory—which I have discussed elsewhere—is that the problem is not the judiciary’s attitude toward national security but its position in the culture wars. If Trump’s goal is to purify America of foreign influences in a cultural or even ethnic sense, then he really will run into opposition from the judiciary, on both the right and left. I suspect that Judge Robart ruled against Trump because he suspected that Trump was motivated by religious bigotry, and not because he believed that judges know the nation’s security needs better than the president does. Trump says that Robart puts the nation at risk of another terrorist attack, but if the second theory is correct, then Trump is concealing his real objection, which is that Robart will not tolerate discrimination against Muslims. If all this is true, then Trump’s legal defenders must make the argument that the judiciary has illegitimately put into place doctrine that will block the president’s goal of protecting American culture from foreign cultural contamination.

Is there a constitutional crisis? My view is no. But other people do believe there is a constitutional crisis, and if enough people agree with them, there will be. So it is not too soon to understand what these views are. I see two: a liberal legal view and a Trumpian view. I present them as sympathetically as I can while trying not to overstate them. To be clear, I agree with neither of them.

Liberal Legal

“Trump’s character and actions make clear that he does not respect our constitutional system. He has railed against, or shown serious disrespect for, many of our most important institutions and principles—the press, the electoral system, and the principle of political competition. He has expressed admiration for dictators while criticizing liberal democracies and the great accomplishments of liberal internationalism. In his latest actions, he has shown himself contemptuous of the judiciary, of principles of due process, and of basic norms of legality and fairness. True, he has not yet overtly broken any laws, or committed impeachable offenses. But our constitutional system vests significant discretion in the presidency; Trump’s intentions are clear; and we cannot afford to wait for him to commit serious abuses.”

Trumpian

“The United States faces a great civilizational threat from immigration by people who do not share basic American values. We can see our future in countries like France, which have cracked down on civil liberties because the public cannot otherwise be protected from alienated, angry Muslims who reject liberal principles. While our country has survived waves of immigration before, Islamic extremism poses an existential threat. Meanwhile, uncontrolled immigration from the south also has damaged national solidarity and America’s protestant heritage. A series of feckless governments have winked at these developments—promising to enforce the law while failing to—and now liberals claim that necessary measures to counter these trends are politically impossible because they violate constitutional principles—of recent vintage, largely invented by elites of both parties who control the levers of power and have disregarded the interests and well-being of ordinary Americans for decades.”

In the clash over the president’s immigration order, one sees both views. Where liberals see a president who breaks fundamental constitutional norms in order to advance invidious goals, Trumpians believe that their policy agenda cannot get a fair shake, despite the electoral victory, because liberals control the institutions and have invented the constitutional norms. And the issue has been joined with startlingly clarity in the following question: can Trump keep Muslims out of the country for cultural reasons? Trumpians say yes; liberals say no. Liberals are correct to see national security as a pretext for the immigration ban, but are wrong to think that the constitutional question is therefore resolved, at least in the minds of the public.

The echo of the great battles of the New Deal—albeit a debate about culture rather than economics, and with a reactionary (in the narrow, original meaning of the word) rather than a liberal in the presidency—is unmistakable.

My op-ed generated many more tweets and emails than I could respond to, so with apologies to my critics, I gather my thoughts here.

1. “Many presidents have criticized judges. Haven’t you heard of Teddy Roosevelt’s ‘banana’ comment about Holmes?”

Presidents have frequently fulminated against judges in personal terms in private, and often disagreed with the Supreme Court about its rulings in public. I still haven’t heard of a case where a president publicly attacked the character of a judge who ruled against him. Even if such a case exists, it would prove only that other presidents have acted irresponsibly. But if someone has heard of such a case, send it to me and I will post it in this blog.

Do these distinctions make a difference? Yes they do. A president is entitled to express his constitutional views, and to criticize people, including judges, who disagree with them. Personally attacking a trial judge who has ruled against him belongs to a different category of behavior. Here, the president is singling out a particular person, implying that his judgment is deficient, and making the claim, albeit in veiled terms, that his order is not valid. This act threatens the single most fundamental norm of our constitutional order, which is that the president must obey judicial orders.

2) “Some presidents have even disobeyed courts, while Trump has not. Haven’t you heard of Andrew Jackson or Abraham Lincoln”?

Jackson was president at a very early, Banana-republic stage of our history. He, like Jefferson, believed with some plausibility that the federal judiciary was stacked with political enemies. Jackson, who was a lawyer, actually cared very much about the law, but believed that John Marshall wielded judicial power in a partisan manner, and further that compliance with Worcester v. Georgia would result in a bloody war. Lincoln obviously had to contend with the Civil War. (Apparently, he did not technically violate Taney’s order, but I won’t rest on this point.) Does anyone seriously think that circumstances today are comparable? Does anyone think Trump is entitled to violate Judge Robart’s order because of a comparable emergency?

Probably the best precedent for Trump’s defenders is Franklin Roosevelt. He did criticize Supreme Court justices in a harsh manner, and he did so publicly, to lay the groundwork for his court-packing plan. Here again, I appeal to historical context. Roosevelt was president at a time of serious economic emergency. Moreover, although he sought to change the personnel of the Court through constitutional means, his attempt to pack the court nearly destroyed him politically, despite his extraordinary popularity at the time.

3) “If anything this action by Trump hurts him in courts and strengthens the spine and backbone of the courts.”

Maybe, maybe not. But even if it does, the effect is damaging. It’s not good if the courts don’t trust the president and seek to undermine him. A president can be effective in a wide range of areas—law enforcement, national security, even ordinary regulation—only if the courts give him the benefit of the doubt. I think Trump is more likely to hobble the presidency than destroy the courts; that is hardly reassuring. At least in principle, he could repurchase their trust by turning down the invective.

Instead, he has doubled down and is obviously calculating that if a terrorist attack occurs, he will be able to blame the judicial system for preventing him from protecting us. This is dangerous territory.

[Update:

Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!

— Donald J. Trump (@realDonaldTrump) February 5, 2017

]

4) “Typical: he criticizes Trump for the ‘so-called’ remark while keeping silent when Obama ‘humiliated’ the Supreme Court in his 2010 State of the Union Address.”

I defended both Bush and Obama against critics who argued that they had overreached. I saw no problem with Obama’s mild criticism of a Supreme Court case, though I can see why Supreme Court justices might justifiably stop attending the State of the Union Address as a result. That incident was a tempest in a teapot. Trump’s remark falls in a different category, as I explained above.

5) “Judge Robart has lifetime tenure; he can take a little criticism from the president.”

I’m sure he can. But the question is whether the president and lower-level executive-branch agents will respect judicial orders, not whether judges will continue to issue them.

6) “Gorsuch should be kept out of it. Moreover, he has an ethical obligation not to comment on a political matter.”

I have dutifully examined The Code of Conduct for United States Judges and pronounced myself mystified by this claim. The Code does not say or imply that a federal judge should not criticize the president for attacking the character of another judge. In any event, Gorsuch is a special case. He is a nominee for a position where he will sit at the top of the judicial hierarchy, and have a special obligation to stand up for the court system as a whole.

A minor side-debate has erupted over whether Gorsuch should make an announcement before his hearings or wait until the conference hearing. I think either would be fine; the latter would be less embarrassing to Trump but, I suspect, sufficient.

7) “It was just a tweet.”

Yeah, right.

Some people have said that because we normally don’t expect nominees to the Supreme Court to take “partisan” positions or to take a position on a pending case, Gorsuch should keep silent on Trump’s “so-called judge” remark. But I did not say that Gorsuch should condemn the immigration executive order, which (indeed) I have said I believe is legal. Gorsuch is within his rights to refuse to comment on it, and, in fact, should refuse to comment on it.

What makes this case special is Trump’s “so-called judge” remark, which is clearly an attack on the independence of the judiciary. The immediate effect of it is bad enough: it may embolden Trump loyalists in the executive branch of the government to disregard judicial orders. The long-term effect will be to set up a pitched battle between the executive and the judiciary, which will damage the reputation of both. Already, the court of appeals will need to worry that if it rules against Judge Robart (as perhaps it should, on the legal merits), it will validate Trump’s attack on the judiciary in the public mind, while if it does not, the court of appeals will be seen as a partisan enemy of the president.

Gorsuch occupies a special position because he is the only judge who Trump has endorsed in an official action. By nominating Gorsuch to the supreme court, Trump has committed himself to the position that Gorsuch is a man of integrity and judgment. If Gorsuch condemns the “so-called judge” remark, and Trump retaliates by withdrawing the nomination, then Trump is condemning his own judgment. If Gorsuch bucks Trump—in the process, taking a very significant risk that he will lose the prize that Trump is holding out for him—the seriousness of Trump’s reckless behavior will be clear to all.

For the “so-called judge” remark, at his confirmation hearing if not before. And his friends in the legal community need to withhold their support for him until he does.

Several years ago I wrote a book with Adrian Vermeule called The Executive Unbound. The book was widely interpreted to argue something like: “the president has unlimited power and that is a good thing, too.” Last week, I published an op-ed in the New York Times (written with my colleagues Daniel Hemel and Jonathan Masur) that argued that a court might block Trump’s plan to build a wall on the Mexican border if he cannot persuade the judge that the wall passes a cost-benefit analysis. The op-ed emerged in part from as yet unpublished work with Masur that argues that judges should require regulatory agencies to use cost-benefit analysis. Are these two positions consistent? The executive must be either bound or unbound; which is it?

The popular interpretation of The Executive Unbound was always a caricature. The Executive Unbound compared two systems of government: the “liberal legalism” model in which Congress takes the lead in making policy within a system of separation of powers; and the “presidential primacy” model in which most policymaking takes place in the executive branch, by regulatory agencies under the broad supervision of the president. Our argument was that while the liberal legalism model remains the official story, the presidential primacy model more accurately depicts the workings of the government.

This confusion between ideology and reality is important. Liberal legalists have constantly complained about the wholesale shift of power to the president from Congress and the courts. And yet this shift has occurred partly because those same liberal legalists have supported consistent incremental shifts in this direction, based on the needs of governance as they developed over many decades. Just think how recently liberals supported Obama’s immigration orders (after Congress gridlocked on immigration), Obama’s climate regulation orders (after Congress gridlocked on climate change), and Obama’s recess appointments (after Congress gridlocked on his nominations). We argued that the long-term trajectory in favor of presidential power—more generally, the centralization of power within the national government in the office of the presidency—reflects economic, political, and technological trends that are (more or less) inevitable, and in the face of which the separation of powers system gridlocks. To that extent, if you want government to govern, you need to learn to live with presidential primacy.

While the title of the book and some passages may have led readers to think that the book imagines that the president is subject to literally no constraints from Congress and the courts, that was never the argument. The book would make little sense if it was. One chapter discusses presidential power during emergencies; the argument that the president’s freedom of action expands during emergencies would make little sense if the president’s freedom of action was already at a maximum during normal times. The book observes that most of the expansion of executive power took place through voluntary delegations by Congress, which, at least formally, retains the power to withdraw those delegations or impose additional constraints on them. And the book describes a historical process that is still going on; it does not claim that we have reached an endpoint of maximal presidential power, whatever that would mean.

My relatively new belief that courts should review regulators’ cost-benefit analysis is a change of mind: I used to think otherwise, and I explain my reasons in the as yet unposted paper with Masur. But I’ve always been a fan of cost-benefit analysis, and it’s only recently that I’ve worked out my thoughts about how it should be institutionalized in government. If my thoughts about the relationship between courts, regulators, and the executive are evolving at the margin, that’s just because I know more today than I did seven years ago. That said, the role of the judiciary in ensuring that agencies perform cost-benefit analysis must remain limited, for reasons that Masur and I explore.

Finally, as to Mr. Trump. The Executive Unbound acknowledged that you don’t always get the president you want. You also don’t always get the Congress you want. If the choice is between action and gridlock, I still prefer action (in part because gridlock will eventually lead to action of a bad kind).

What will happen if Trump causes the devastation that is so widely predicted? It depends on what exactly he does. If he establishes a dictatorship and starts World War III, all bets are off. A more realistic worst-case prediction at this point is something like a Nixon presidency, except without the foreign policy accomplishments, ending in impeachment, resignation, or simply an electoral loss. If so, then expect Congress, presumably now populated with Democrats, to react as it did after Nixon’s resignation—by enacting new statutes that attempt to rein in the presidency. And expect those new statutes to erode in short order just as the 1970s statutes did.

Trump’s “Monday Night Massacre” of Sally Yates recalls Nixon’s Saturday Night Massacre, but the connection between the two presidents is deeper. There is, of course, the psychological dimension: Trump, like Nixon, is an outsider (or sees himself as one) and deeply resents the elites who look down on him.

But the real connection goes deeper still. Nixon rose to power by attacking political elites for coddling communists during a period in which the public was deeply worried about the threat posed by the Soviet Union, first, and then Red China. International communism really was a threat to the United States, but most of the Soviet spies and communist sympathizers in the U.S. government had been caught and purged before Nixon came along. Nixon mastered an effective demagogic tactic: he not only portrayed reasonable security policies in place at the time as inadequate in light of an exaggerated threat; he argued that the inadequacy of those security policies served as evidence that government officials were indifferent to public safety and indeed sympathized or even collaborated with the enemy.

Replace communism with radical Islam, and Nixon with Trump, and the story seems familiar. A decade and a half after 9/11, both establishment Republicans and Democrats felt that the domestic terrorist threat posed by Islamic extremists had been contained. With the benefit of hindsight, they clearly misunderstood the psychology of a significant portion of the public. Trump, also taking a page from Nixon, strengthened his case by blurring the lines between domestic and foreign terrorism, but, more important, he—also like Nixon—presented the establishment’s failure to take Islamic terrorism seriously as evidence that it was too incompetent, weak, and self-centered to keep American jobs from moving overseas and protect the borders. In Trump’s account, the government did not merely make poor policy choices; it betrayed America, and it betrayed Americans because of its inexplicable softness toward a foreign enemy.

If we want to understand the rise of Trump, then, we must move beyond the usual suspects—the financial crisis, the weak economic recovery, growing inequality, and the Iraq War—and focus on Obama’s Syrian refugee policy as well as his statesmanlike refusal to demonize Muslims, which Trump skillfully connected with Obama’s generosity toward Hispanic immigrants by appealing to the latent xenophobia of many Americans. And this raises an uncomfortable question: is a new McCarthy era, aimed at Muslims, around the corner? If Yates thought so, we can understand better why she refused to enforce the otherwise apparently lawful immigration executive orders.

I am reminded of growing up during the cold war, when there were two reigning theories of the Soviet Union. The first was that it was the massive “evil empire”: loaded with nuclear missiles and a huge military, relentless in spreading chaos around the world, and amazingly effective in disseminating propaganda and stealing secrets from its enemies. The second was that it was a hopelessly inefficient, lumbering behemoth, which could barely feed its people. The Russian people were similarly caricatured as either communist maniacs or oppressed victims kept in line by the fantastically effective secret police. We did not take a sensible middle position but instead kept the two contradictory images in our head, flipping from one to another as circumstances required, in the spirit of the rabbit-duck illusion.

I came to think that the caricatures were important psychologically for us in the west. The evil empire / communist maniac caricature kept us motivated to defend our freedoms and/or rationalized the enormous amount of money sunk into defense and third-world proxy wars. The lumbering behemoth / oppressed population caricature held out hope that we would ultimately prevail. The mushy sensible middle would have both drained us of motivation and eliminated any hope of success.

This pattern is repeating itself with Trump. The Trump-the-buffoon caricature temporarily expired when he won the general election, but was revived after the inauguration-crowd and immigration-executive-order imbroglios. Meanwhile, Trump-the-evil-genius is also making the rounds, with theories that he plans to establish a dictatorship gaining increasing currency. Creative souls who have noticed the contradiction have tried to resolve it by adopting a new Trump-the-puppet theory: Trump-the-buffoon-puppet is being manipulated by Machiavellian evil genius puppet-master Steve Bannon. Come to think of it, this was also the dominant theory a few presidents ago: Bush-the-buffoon/puppet being manipulated by evil-genius puppet-master Dick Cheney (until Bush defenestrated him for his incompetent advice and Cheney was exposed as very much a non-genius).

Perhaps, the current psychological stance will fire up Trump’s opponents and lead them to ultimate success, saving us either from Trump’s mediocrity or from his threat to our institutions, but in the meantime one laments the damage to public understanding.

It’s your best hope to block climate deregulation, financial deregulation, and Mexican-wall building. But first you need to stop thinking that cost-benefit analysis is an affront to human dignity. Jump on the bandwagon while you still can.

Discussed by Adam Liptak here. Original study, written with Lee Epstein, here. (The capped lines are not confidence intervals; they show minimum and maximum win rates during the president’s tenure; for more details, see the study.)

It’s tempting right? You could subtly mention how much you enjoyed the fluffy Trump-monogrammed pillows the night before as you make small talk before turning to your request that the president call off a regulator, or veto a bill, or make federal land accessible to your coal mining operation. Surely a stay at the Trump Hotel would be preferable to Washington’s other scandal-ridden hospitality institutions like the Mayflower or the Watergate?

But keep in mind the federal bribery statute, which while frequently enforced against politician-bribees, can also be enforced against businessman-bribers:

Whoever—

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—

(A) to influence any official act; …

shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years.

18 U.SC. 201.

Yes, the president could be such public official, at least according to the Office of Legal Counsel. One can see an argument that the law should not apply to someone who pays market price even though Trump technically benefits every time a dollar is handed over to the hotel. But then again the market price of a Trump Hotel room may include the demand-driven value of the opportunity to influence a federal official.

Suppose the CEO of Toxic Substances Inc. plans to meet with the head of the EPA, and is told by an EPA official that he “should really stay at the Trump Hotel,” since that is convenient to the meeting place. The Supreme Court has recently held that “setting up a meeting” by itself does not constitute an “official act” under the statute. But here the official act in question would be whatever the CEO wants the EPA to do—say, water down a regulation—and the suggestion could easily be construed as a request for a bribe.

Advice to corporate lobbyists: there is nice Motel 8 in Arlington, Virginia.

I present The Dictator’s Handbook, U.S. edition in honor of Donald Trump’s inauguration. I find myself less pessimistic than Daron Acemoglu, and, I guess, nearly everyone else I talk to or read. I agree that Trump is likely to be a very bad president. But I do not think he will become a dictator or even a watered-down version of a dictator. I do not know whether he will cause lasting damage to U.S. institutions. Nixon tried to damage them, but they retaliated effectively, and then blossomed in his wake. Trump seems more likely to cause harm to  the presidency than to the press, the judiciary, or any other institution.

This is a work in progress, in more ways than one; comments welcome.

Be careful what you wish for. Leftish critics of the “neoliberal order” have found their champion in, of all people, Donald Trump, who poses a far greater threat to neoliberalism than the Seattle rioters of 1999, French farmers, and Hugo Chavez put together. The critics complained that the neoliberal order favored U.S. commercial and political interests at the expense of workers, especially those in the developing world. If so, what does Trump have to gain by bringing it down?

Two possibilities suggest themselves. The first is old-fashioned economic nationalism. On this view, the neoliberal order gave the Europeans too much, thanks to concessions by the United States as it struggled to maintain the cold-war alliance against the Soviet Union. A major goal of European integration was the creation of a trading bloc that would negotiate with the U.S. on equal terms. To ensure that Europe presented a united front, European countries were required to resolve their differences prior to international trade negotiations and forbidden to negotiate with the U.S. (or any other country) one on one. The Americans accommodated European integration during the cold war because they sought a bulwark against the USSR. Trump now seeks to undermine this bloc in order to enhance U.S. bargaining power, allowing Americans to skim off more of the surplus from the Atlantic trade. If the European approach made sense for the Europeans, then Trump’s does for Americans, especially now that the Soviet Union has been replaced by a military weakling. Can he succeed? That depends on the Europeans. In the wake of Brexit, Trump may see an opportunity for economic division and conquest that others have missed.

The second is cultural. Trump has taken the helm in the assault on cultural neoliberalism, by which I mean human rights. Contrary to the view in the United States, the Europeans—not the Americans—have always been the major champion of the international human rights regime, which it has used since the 1970s to present itself as a third way between the Soviet Union (now Russia) and the United States. Trump seeks to enhance his standing among his supporters by humiliating Europe and the values it stands for. This possibility only occurred to me when a friend sent me links to Breitbart articles that attack Europe for trying to impose its cultural values on the United States, or for embracing immigration or censorship of right-wing speech. (No, I don’t read Breitbart myself, but should I start?)

These two theories make sense (barely?) of Trump’s desire for a rapprochement with the Russians. Trump and Putin share a desire to divide Europe so as to enhance their economic bargaining position, and to weaken Europe’s moral authority by reducing it to a bunch of squabbling states who can agree on nothing. Since Russia no longer poses a threat to the United States as the Soviet Union did, the United States no longer needs a strong Europe as an ally. Note Trump’s identification of Europe with Germany: with Britain out of Europe, and Russia on America’s side, is he trying to evoke nostalgia for the Grand Alliance?

Is it self-serving to argue that the populist backlash against international law confirms my longstanding skepticism of mainstream international law scholarship? Yes. Am I victim of confirmation bias? Maybe. Still, is it plausible …?

Liberal Internationalism and the Populist Backlash

Abstract

A populist backlash around the world has targeted international law and legal institutions. Populists see international law as a device used by global elites to dominate policymaking and benefit themselves at the expense of the common people. This turn of events exposes the hollowness at the core of mainstream international law scholarship, for which the expansion of international law and the erosion of sovereignty have always been a forgone conclusion. But international law is dependent on public trust in technocratic rule-by-elites, which has been called into question by a series of international crises.

In an op-ed published yesterday in the Wall Street Journal, Barbara Novick, a top executive at BlackRock, criticizes our call for reform of institutional investors to ensure they do not reduce competition. She says our argument in A Proposal to Limit the Anti-Competitive Power of Institutional Investors (written with Fiona Scott Morton) lacks “economic logic and factual support.” We naturally disagree.

First, she claims that institutional investors have no incentive to raise prices because some of their customers are businesses that institutional investors own. This is like saying that a gasoline monopolist would not raise the price of gasoline because some of its employees drive cars. No economist would accept this argument.

Second, she claims markets have become more competitive during the rise of institutional investors. The truth is the opposite, as noted by the Council of Economic Advisors and dozens of recent papers in leading economics journals.

Finally, she accuses our proposal of “eliminating the benefit of diversification.” Much of our paper is devoted to showing that our proposal would diminish diversification by a de minimis amount. Furthermore, and contrary to her claim that “investors would be forced to decide which fund manager might select the highest performing company in each sector,” our proposal allows individuals to diversify as much as they wish across institutional investors.

(Written with Glen Weyl)

I have an op-ed in the Times arguing for antitrust-based regulation of the major institutional investors, written with Fiona Scott Morton and Glenn Weyl. Our argument is developed in an academic paper posted at SSRN.

Historians tell us that Teddy Roosevelt created the modern presidency by using the office as a “bully pulpit.” Unlike earlier presidents, Roosevelt took his policies to the public rather than working through Congress. With public support, Roosevelt could then pressure Congress to adopt his policies through legislation. The president became the primary policy-maker, or at least a first among equals, rather than an executor of policy determined by Congress.

But Roosevelt communicated to the public through the press, and the press did not always present his arguments in a favorable light. The next step in the evolution of presidential power was the fireside chat of Franklin Delano Roosevelt. FDR, unlike TR, spoke directly to the people over the radio, partly sidestepping the press.

Ronald Reagan (the original “great communicator”) revived this practice, but the world of the 1980s was different. The radio was not a central medium of communication, and radio stations felt constrained to offer Democrats a response. With the advent of the internet, this effort to speak directly to the public—even if repackaged as podcasts, starting with George W. Bush—was hopelessly ineffective. The historian Julian Zelizer, writing in 2011, had this to say:

President Obama has gone to great lengths to find new ways to reach the American people. But he is trying to achieve a 20th-century goal in a century when it is no longer possible. The reality is that presidents, Democrat or Republican, will have to find new ways to exercise what power they have and should no longer expect the opportunity to simply take their case to the public.

Time does not reflect kindly on this assertion. Trump has done just this, in his campaign, and as president-elect, and no doubt he will as president as well. Those of us who do not like Trump or his policies need to concede that he is a brilliant tactician. He has used Twitter to take his case to the public far more effectively than any president since at Reagan if not before.

How was this possible? Twitter, like communication technologies that came before it, features a winner-take-all quality: the people with the most followers gain still more simply by virtue of being the most followed. But unique among communication technologies, it plays to certain Trumpian strengths: pithy, simple statements that are (usually) brutal and (occasionally) humorous. Other politicians used Twitter as an outlet for carefully vetted presses releases rather than exploiting the unique qualities of the medium, which requires spontaneity or at least the appearance of it, and a willingness to sling mud at the slightest provocation (or none at all).

It is hard to say much in 140 characters but Trump realized that he could advance his agenda by linking to longer pieces in media outlets. People who wanted more elaborate statements of policy or reasoning could follow the links. Here is where Trump made another crucial innovation. Rather than link consistently to a respectable or semi-respectable outlet of conservative opinion, he linked to any media outlet—no matter how disreputable—that contained an item that supported his immediate goals. While in this way relying on the press (or “press”) like previous presidents, he also undermined its ability to stand as an intermediary between president and public by inserting its own views when it disagreed with the president. He links to a piece only when it serves his interests, and does not show loyalty to any particular outlet, which means that websites now struggle to publish things that will please him. They are passive wholesale content providers to the Trump media machine rather than retail outlets with any chance of building up a brand that is distinct from the Trump brand. Meanwhile, the respectable press helplessly republishes Trump’s tweets to an even broader audience. It acts for good journalistic reasons—he is president-elect and everything he says is news—and yet in the process further strengthen Trump and weaken their own position as intermediaries between the president and the people. While everyone frets over Trump’s specious threat to strengthen libel laws, it is his perfectly lawful use of Twitter than will damage the press more than anything else.

What are the Democrats to do? I suspect the only thing that they can do is find a “big man” (or woman) of their own, someone who will become the focal point of Democratic policies, and can tweet, on behalf of the Democrats, as effectively as Trump can, insults and all. Parties that are out of power have never been very good at rallying around a single spokesperson. Indeed, the Republicans did not rally around Trump until after he won. So I suspect that this person will not rise up through the Democratic party establishment but, like Trump, from business, entertainment, or the military. An age of personalistic politics is upon us.

It means that it is dead, doesn’t it? Sunset, not Twilight. Political efforts by beleaguered liberals in the United States may (or may not) suffice to prevent Trump from registering Muslims, torturing suspected terrorists, and suing newspapers. But these efforts will be focused inward: nothing will be left to compel him to promote international human rights law rather than cozy up with authoritarians like Putin. Indeed, the image of Trump touting human rights is ludicrous, unimaginable—not even with the malevolent sarcasm of Putin, who claimed that the invasion of Ukraine was necessary to protect the human rights of the Russian-speaking minority. Meanwhile, the other champion of human rights—the European Union—is at death’s door itself, besieged from within by nationalist movements and renegade member states like Poland and Hungary, and from without by Russia and the ever-present Islamic terrorist threat. A newly reinvigorated anti-liberal China completes the picture.

International lawyers and cosmopolitan political scientists will insist that the slack can, will, must be taken up by international institutions, like the various human rights committees, the UN Human Rights Council, the European Court of Human Rights, and the International Criminal Court. But none of these institutions—with the limited exception of the ECHR—were ever very effective, and the European system is now in disarray, while the ICC is on the verge of collapse, as African states and Russia abandon it. None of these institutions can survive without the money and political support of the states that are increasingly unwilling to tolerate their criticism. The question is: what, if anything, will rise from the ashes?