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

Written with Ariel Porat

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

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

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

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

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

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

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

The fog of Trump

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

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

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

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

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

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

Trump v. his lawyers

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

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

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

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

The president is a they, not a he

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

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

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

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

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

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

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

Are human rights dead?

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

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

Will the new immigration order make a difference?

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

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

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

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

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

Trump and fake news

What is fake news? We used to call it media bias, which has been with us as long as the press has. There is a symbiotic relationship between the press and the government. The government cannot survive without the press to validate its claims; the press cannot survive without a government to report on. The fight is not over the press, but the extent to which it should shade the truth either in favor or against the government. Neutrality is not an option.

The best work I know of on this topic is by Gentzkow and Shapiro, who developed a clever way to measure bias in the media—basically by comparing the language that media outlets use with the language used by politicians of various ideological stripes. Yes, the Times is on the left, and Fox is on the right; all news organizations  are located on a point along the ideological spectrum.

Their most interesting finding is that the ideological slant of a news organization reflects the ideological slant of its customers. This reflects a Bayesian logic. A conservative sees the world in a certain way, and so will be more likely to believe a media outlet that sees it in a similar way. Same for liberals. In order to attract customers, a news outlet provides a consistent level of bias that reflects the ideology of the people who are its most natural customers. In the old days of print newspapers, the newspapers would reflect the biases of the people in their area of distribution. Nowadays, national media divide up their audience by finding demographic groups that are not already represented. Fox made a killing because the national news channels catered to liberals and moderates, ignoring a huge segment of the population.

In the era of social media, everyone can very easily read news from across the ideological spectrum. With conservatives easily being able to read the stuff that liberal news organizations sell to their customers, and liberals being able to see the stuff that conservative news organizations purvey, trust in the press has fallen to a new low. People can circulate to their ideological pals the latest outrage from a news organization that doesn’t see them as its audience–“can you believe that!” Fake news is born.

But I suspect these poll numbers conceal a fallacy of aggregation. Just as voters distrust Congress but trust their own congressional representatives, people distrust the press as a whole while trusting the specific news organizations that they rely on. That is the Bayesian logic of Gentzkow and Shapiro. In fact, in common usage the “press” probably means the New York Times and CNN, not Fox and the Wall Street Journal. That is why the poll numbers indicate that Republicans have lost more faith in the “press” than Democrats have.

The underlying truth is that liberals trust liberal news organizations and conservatives trust conservative news organizations: the press has never had more influence or enjoyed more trust, in the disaggregated sense–or so I believe.

If all this is true, Trump faces a dilemma. By attacking the press as a whole, he can blame another institution for his failures and establish himself as an independent source of the truth. In principle anyway, he can appeal to the masses for support by claiming that the elite press misleads them. Here is the  logic of populism at work. But the press encompasses the conservative press—so he is implicitly attacking institutions that his conservative supporters trust, probably more than they trust him.

The alternative is to attack only the liberal press, giving up on possible mass appeal and doubling down on his conservative base. But if Trump attacks only the liberal press, then he is implicitly tying himself to the good opinion of the conservative press. If the conservative journalists finally turn on him (some already have), Trump will lose credibility among his core supporters, and very quickly. Meanwhile, he gives free publicity to the liberal press, to whom moderates will increasingly turn as their doubts about Trump gain force.

In true Trumpian fashion, Trump has tried to resolve this contradiction by attacking what he calls the “fake news media,” encompassing an ambiguous group that includes the liberal media but presumably excludes conservative outlets, but only as long as they continue to support him. He can add Fox to the list if it ever turns on him, but if he does his position will become ever more precarious. Trump needs the media more than he is willing to admit. Hence his impotent rage.

Trump’s mental health, part 2

In an earlier post, I argued that Trump is not mentally unstable. Not everyone liked this post. Some readers said he obviously is. But the better point is that we all mean different things when we use the term “mental instability.” How was I using it? A friend, Jay Weiser, rides to the rescue with some helpful distinctions. My comments in brackets.

Soviet/Winston Smith/Democratic Party [sic] definition

Anyone who opposes state control of the means of production and the ideology of the latest progressive Dear Leader is by definition insane. This is the definition psychiatrists used to find Barry Goldwater psychologically unfit for the Presidency (but not Lyndon Johnson!), and is probably Andrew Sullivan’s definition.

[For literal-minded readers, Jay was a bit mischievous to include the Democratic party, or maybe, and I take no position on his characterization of that noble institution. In any event, let’s agree that it is tempting to declare insane anyone who disagrees with us, but let’s also try to resist this temptation.]

Mental Incapacity

This is close to the legal definition: mental conditions that are so debilitating as to make normal adult functioning impossible. Examples are schizophrenia, bipolar disorder, depression or autism when they are severe and untreated.

[Trump does not meet this definition. If he did, then we might start the 25th Amendment conversation (“the President is unable to discharge the powers and duties of his office”). No.]

Bus Uncle

Most psychological problems fall on a continuum of severity, and much of the population has aspects of one or another condition, up to and including symptoms that would qualify for clinical diagnosis at some point. As Hong Kong’s Bus Uncle said, “I’ve got pressure, you’ve got pressure!” In subclinical or mild clinical form, the condition may cause impairment or even be somewhat helpful (if you believe the studies saying that successful CEOs often have some measure of narcissism or sociopathy, or that ADHD is associated with creativity). People manage to adjust most of the time.

[If Trump faces issues of mental health, he falls into this category, along with many of the rest of us, including many successful people and numerous presidents as well (including, I strongly suspect, LBJ, an extravagant liar whose psychology seems Trumpian in many respects). If Trump ever faces reelection, by all means take into account his temperament before casting your ballot, but don’t call him crazy unless you think most people are crazy.]

Even people with severe mental illness can be functional. Carrie Fisher was literally a textbook case of bipolar disorder, but high-functioning despite lapses. Despite a daunting paranoid schizophrenia diagnosis, famed jazz trumpeter Tom Harrell maintains a touring schedule.

[Which does not  mean that we would have wanted either of them as our president. Yet Lincoln exhibited some symptoms of clinical depression. The Goldwater article mentioned above quotes one of the psychiatrists who thought that Goldwater was insane:

His theme is “freedom” – but from what? Unconsciously, it seems to be from his mother’s domination…

Let’s learn from the past as we continue to speculate about Trump’s mental universe.]

Our Praetorian guard

Intelligence officials are going after Trump with a vengeance. This has been building for weeks, but I wonder whether the last straw was the farce at Mar-a-lago, where Trump and top officials debated how the U.S. should respond to North Korea’s missile test in front of paying guests. One guest apparently posed for a picture of himself and a military officer holding a briefcase with the nuclear launch codes. It seems possible that the intelligence community can live with being compared to Nazis, but the Mar-a-lago debacle deeply offended its sense of professionalism. Why take so many precautions if the president takes none? Reports are circulating that intelligence officials are concealing some sensitive information from the president. Let’s face it: Trump is a bozo, and the intelligence community is trying to figure out how to contain him. This is comforting, but the question has to be asked, what price will it charge us in return?

Is Trump finished?

Not yet. But it’s hard to see how Trump can last even one term unless his top advisers take away his phone, lock him in a closet, and let him out only for carefully scripted ceremonies which are taped so that they can be edited before broadcast to the public.

The problem is not Trump’s ideology or his policy agenda, which remains popular with a large portion of the public and his important business supporters. It’s his basic competence. Even loyalists will stop supporting him if he can’t implement the policies he promised them. Trump doesn’t seem to understand that a successful president needs the support of the bureaucracy; he can’t boss agency officials around like Trump Organization employees, but must act through them. If he attacks them for political reasons, or is incapable of telling the truth, they will not trust him. If they don’t trust him or if they fear him, they will not do his bidding. They may even try to undermine him. In fact, they already have.

The agencies

The major government agencies, with the possible exception of the immigration authorities in DHS, can’t stand Trump (or so I surmise). The intelligence community, still smarting from Trump’s comparison of it to the Nazis, have engineered the ouster of Flynn by leaking confidential information. But it’s hardly the intelligence community alone. The entire federal bureaucracy can’t even be called a sieve; it’s a hole in the air through which secrets gush out in torrents. Journalists need only extend their tin cup and they have the scoop of a lifetime. Meanwhile, agency employees are figuring out how to slow-walk Trump’s regulations and put sands into the gears of his initiatives.

The courts

If Trump was trying to intimidate the courts, he failed. They are openly contemptuous of Trump. Here is Judge Robart, the “so-called judge”:

As the government argued for postponement, the judge referenced Trump’s tweet reacting to the 9th Circuit ruling saying he would “see you in court.”

“I’m a little surprised since the President said he wanted ‘to see you in court,’” Robart said, later adding, “Are you confident that’s the argument you want to make?”

DOJ lawyer Michelle R. Bennett said: “Yes, your honor.”

Robart is mocking the president. Meanwhile, a district judge in Virginia has found that Trump likely acted out of animus when he issued the travel ban. Passages in her opinion and the Ninth Circuit opinion brim over with disgust at the Trump administration’s lack of professionalism. The respectful formalism of traditional presidential power opinions is gone.

The press

Trump declared war on the press, and is losing in a rout. The problem faced by presidents (and especially conservative presidents) is that while they know that the press wants them to stumble, they also need to use the press. Twitter aside, there is no other way to communicate to the public.

Now, when Trump or an administration official says X to the press, the inevitable headline is “Trump, saying X, lies again.” Trump wants to convince the public that the press lies about his own lies, but he faces a contradiction. He can’t persuade the public that the press lies because, again Twitter aside, he can only talk through the press. While conflict with the press is inevitable, Trump bungled his communications strategy by failing to grit his teeth and cultivate sympathetic journalists while treating the mainstream press more respectfully.

Civil society

For the ACLU and other liberal legal groups, life has never been better. The public, alarmed by Trump’s antics, have showered them with gold. The happy warriors of these legal organizations have already damaged Trump by providing support in the travel ban cases. As the Trump administration continues to hemorrhage scandals, while acting aggressively to satisfy the base, expect ever more litigation against its every move.


In the short term, the only institution that can stop Trump is Congress, and only if opposition to Trump among Republicans develops. This may seem unlikely. Republicans, quite rationally, want Trump to remain in power so that he will sign the laws that will deliver the goods to their constituents. But they seem finally to be realizing that Trump may not be able to help them deliver the goods. Obamacare and tax reform—the two most important items on the agenda—turn out to be complex. Even in the best of times, major legislation is slow and difficult. Congress can rarely legislate on its own because of its internal rivalries and arcane rules of procedure. An engaged, self-disciplined, and politically sophisticated president is needed to gauge the preferences of members of Congress, offer incentives, make threats, and broker compromises.

Is Trump capable of such legislative maneuvering? It is hard to believe that he is. He already committed an unforced error in the Gorsuch nomination—which should have gone very smoothly—by attacking Judge Robart and the Ninth Circuit. With this ammunition, Democrats will make Gorsuch’s confirmation hearings very unpleasant by forcing him either to contradict Trump or come off as a jellyfish.

Republicans need to ask themselves what will happen when Trump makes his next nominations, especially if the nominees are weaker than Gorsuch or Democrats gain control of the Senate after the next election. Meanwhile, the Flynn episode threatens to embroil the Trump administration in never-ending congressional investigations, which–as Whitewater and Iran-Contra showed–snowball by spinning off revelations and sowing distrust, eventually paralyzing government.

If Trump lacks self-discipline needed to get bills passed, then he has no value for the Republicans in Congress. Gradually Republicans are breaking ranks, complaining privately to the press, or, in a very few cases, publicly. When will the tipping point be reached? If the wisdom of crowds is to be believed, then before the end of his term is certainly a possibility.

The presidency shrinks, pt. 2

In a post on the Ninth Circuit travel ban case, Washington v. Trump, I observed that when the case goes back to the district court, the court will determine whether Trump acted from anti-Muslim animus. If it so finds, then any future national-security action will be subject to an extra layer of judicial review, potentially interfering with the president’s ability to protect the public. “We may have a new regime of heightened judicial review in national security cases because courts believe the president is a bigot.”

Now we get to find out. A district court in Virginia made just this determination in a case called Aziz v. Trump. She declared the national-security justification for the travel ban a sham, and found sufficient evidence of anti-Muslim animus on Trump’s part to issue a preliminary injunction.

The judge denied that her ruling would “render every policy that the president makes related to Muslim-majority countries open to challenge” because the Court’s ruling was based on a particular “sequence of events.” Yet earlier in the opinion, she quoted the Supreme Court’s statement that the “world is not made brand new every morning.” Trump’s statements from his campaign are therefore relevant to the question of whether the travel ban was motivated by animus. But then why won’t they also be relevant to his future anti-Muslim actions? Answer: they will be.

Is Trump mentally unstable?

Andrew Sullivan thinks so. Some members of Congress also think so or pretend they do. I do not.

How can we tell? Start with Trump’s background. While we do not really know whether he is a good businessman or a bad one, we do know that he has run a business for many decades without destroying it and very likely has made a great deal of money. Mentally unstable people do not run businesses. Trump won the presidential election after disregarding the advice of many experienced, intelligent, rational people. Mentally unstable people do not win presidential elections. (In the old days, they occasionally inherited a kingdom, but being born to a king requires no specific mental capacity.)

Sullivan thinks Trump is mentally unstable because Trump constantly tells easily verifiable lies. While Trump’s mendaciousness is truly a natural wonder, a Mount Everest or Grand Canyon of human psychology, it is not hard to understand. Many, many people exaggerate their accomplishments, blame their failures on others, and misrepresent reality in order to make themselves look better. This behavior is ubiquitous—sometimes intentional, more often subconscious. In ordinary life, we tolerate it, mutely or not, hoping that we are not as bad as the person whose lies we are listening to. Trump’s negotiating partners have no doubt patiently sat through the avalanche of lies, then tell their own before insisting that the offer be in writing.

What makes Trump’s behavior seem pathological is that he is the president rather than your neighbor or colleague or negotiating partner. He speaks to audiences of millions rather than to audiences of one or two, and is immediately checked by the press. No president or leader of a developed country has ever acted like him. Most politicians speak from mental (or real) transcripts, which have been carefully vetted so that they offend no one and reveal nothing. Normal presidents lie but only when they expect to be believed because the facts are hidden from the public. Consider Bush (Iraq), Clinton (sex), Reagan (Iran-Contra), Nixon (Watergate + nearly everything), LBJ (Vietnam + nearly everything), Eisenhower (U-2). That’s normal politics.

But if Trump’s behavior is politically pathological, it is psychologically natural. If biographic accounts are to be believed, he has spent his entire life telling lies and profiting from them. The lies helped his business, his love life, and his endless efforts at self-promoting. They helped him win the election. And not just the lies, but the incessant bloviating about things he knows nothing of. Having won the campaign, he has gained immense self-confidence in his political instincts. Three weeks in, he sees no reason (yet) to depart from his modus operandi of chattering, lying, bloviating, and tweeting, in order to provoke people, gain attention, and control the agenda. He enjoys it all too much, maybe he can’t really help it, but he has not been convinced that his lies harm him. He makes up facts to make himself look good because he is like everyone else except more so. Unlike everyone else, he is publicly contradicted by the press. When this happens, he doubles down rather than take the risk of losing face. Trump believes that the press is controlled by his enemies; he cannot afford to make concessions to it.

Now that he is president, Trump cannot continue this type of behavior indefinitely. Either he will lose the confidence of the public, or he will submit to cabinet government, deferring to his advisers and subjecting himself to the discipline of a communications director. Or so I predict.

Some commentators believe that far from being mentally unstable, Trump is a super-canny manipulator of public opinion, a type of Hitler or even the sort of mythical figure you find in dystopian novels like 1984. These commentators believe that Trump uses his lies in order to humiliate his subordinates who must repeat them—this is supposed to bind them to him. But it actually destroys their credibility and renders them useless as instruments of power.

Or the commentators think the lies will give Trump extraordinary power by making him unpredictable, without stopping to wonder how Trump will accomplish anything if no one believes him or his promises. Or they believe the lies will make it impossible for the public to distinguish truth from falsehood, causing people to lapse into hopeless submission while Trump consolidates power. This is all a paranoid fantasy.

Since becoming president, Trump has damaged himself with his lies. By attacking all journalists, Trump has provoked even the conservative press that would otherwise be his ally. By lying in such blatant ways, he has also forced the conservative press to contradict him again and again. This is not a well-thought out strategy, or a strategy at all. Trump’s bluster is a defense mechanism, not a strategy. He’s not a super-genius, and he’s not crazy; he’s just in over his head.

What does Bannon think? And does Trump agree with him?

Steve Bannon is thought to be the ideological force behind the Trump administration. What does he think? And does Trump agree with him? The indented passages below are quotations taken from Bannon’s remarks for a Conference at the Vatican in 2014. The remaining text is my commentary.


And we’re at the very beginning stages of a very brutal and bloody conflict … that [if we do not prevail] will completely eradicate everything that we’ve been bequeathed over the last 2,000, 2,500 years…. [W]e are in an outright war against jihadist Islamic fascism.

Bannon is an apocalyptic (or, more accurately, a kind of millenarianist, as he does not seem to believe that the world will come to an end anytime soon): he believes that a war between good and evil has begun and that its outcome will determine the course of the future. While Trump often speaks in violent terms about the conflict with Islam, Trump presents himself as the strong man who will protect us from security threats rather than as a prophetic figure who will lead us to the promised land. Trump sees the political benefits of demonizing Muslims and throwing up walls on our borders, but doubts that Americans will find appealing the prospect of a never-ending religious war against one and a half billion people.

Critique of Capitalism 1: Crony capitalism

One is state-sponsored capitalism. And that’s the capitalism you see in China and Russia. I believe it’s what Holy Father [Pope Francis] has seen for most of his life in places like Argentina, where you have this kind of crony capitalism of people that are involved with these military powers-that-be in the government, and it forms a brutal form of capitalism that is really about creating wealth and creating value for a very small subset of people.

… General Electric and these major corporations that are in bed with the federal government are not what we’d consider free-enterprise capitalists. We’re backers of entrepreneurial capitalists. They’re not. They’re what we call corporatist. They want to have more and more monopolistic power and they’re doing that kind of convergence with big government.

Bannon thinks that our market system has been corrupted with cronyism. He appeals to a mythical age of smallholder capitalism. Trump, by contrast, is the crony capitalist par excellence. On the campaign trail, he bragged about his manipulation of government officials in order to advance his business interests. As president, Trump has invited plutocrats into his cabinet while profiting from conflicts of interest and hawking Ivanka’s jewelry.

Critique of Capitalism 2: Libertarian capitalism

The second form of capitalism that I feel is almost as disturbing, is what I call the Ayn Rand or the Objectivist School of libertarian capitalism…. It is a capitalism that really looks to make people commodities, and to objectify people, and to use them almost — as many of the precepts of Marx — and that is a form of capitalism, particularly to a younger generation [that] they’re really finding quite attractive. And if they don’t see another alternative, it’s going to be an alternative that they gravitate to under this kind of rubric of “personal freedom.”

Bannon also objects to what he sees as amoral features of capitalism celebrated by Ayn Rand. He worries about the cultural contradiction of capitalism: that by rewarding greed, it undermines the moral values, like trust and self-discipline, that make capitalism possible in the first place. Bannon, again:

One thing I want to make sure of, if you look at the leaders of capitalism at that time, when capitalism was I believe at its highest flower and spreading its benefits to most of mankind, almost all of those capitalists were strong believers in the Judeo-Christian West.

Trump, by contrast, celebrates all the features of capitalism that moralists like Bannon detest: its glitz and superficiality, its Darwinian obsession with “winning,” and its contempt for “losers.”

The right sort of capitalism

What is the moral style of capitalism that Bannon endorses? In answer to just such a question from a participant at the Vatican conference, he stumbles.

So I think the discussion of, should we put a cap on wealth creation and distribution? It’s something that should be at the heart of every Christian that is a capitalist — “What is the purpose of whatever I’m doing with this wealth? What is the purpose of what I’m doing with the ability that God has given us, that divine providence has given us to actually be a creator of jobs and a creator of wealth?”

Bannon thinks that faith should guide the capitalist but he does not know what it should tell the capitalist to do. All that one can be sure of is that similar thoughts have never entered Trump’s brain.

Religion and traditional values

I certainly think secularism has sapped the strength of the Judeo-Christian West to defend its ideals, right?

… If you go back to your home countries and your proponent of the defense of the Judeo-Christian West and its tenets, oftentimes, particularly when you deal with the elites, you’re looked at as someone who is quite odd. So it has kind of sapped the strength.

Bannon, like a lot of conservatives, believes that the west has lost (or is in danger of losing) its capacity to defend itself from barbarism because of the collapse of its self-confidence, which in turn can be traced to the rise of moral relativism and the decline of religious values. (An almost perfect fictional depiction of Bannon’s view is Michel Houellebecq’s Submission.) Trump? No.


The central thing that binds that all together is a center-right populist movement of really the middle class, the working men and women in the world who are just tired of being dictated to by what we call the party of Davos…. [T]here are people in New York that feel closer to people in London and in Berlin than they do to people in Kansas and in Colorado, and they have more of this elite mentality that they’re going to dictate to everybody how the world’s going to be run.

… And by the way: It’s all the institutions of the accounting firms, the law firms, the investment banks, the consulting firms, the elite of the elite, the educated elite, they understood what they were getting into, forcibly took all the benefits from it and then look to the government, went hat in hand to the government to be bailed out. And they’ve never been held accountable today. Trust me — they are going to be held accountable. You’re seeing this populist movement called the tea party in the United States.

Trump and Bannon find common ground in their hatred of cosmopolitan elites, who arrogantly lord it over the common people. But there is division even here. Bannon’s populism is more thoroughgoing; it is impossible to imagine him approving of Trump’s appointments of plutocrats from Goldman Sachs. While he seems to have genuine populist instincts, Trump trusts rich people, the people he knows best; Bannon does not.


However, we the Judeo-Christian West really have to look at what he’s [Putin] talking about as far as traditionalism goes — particularly the sense of where it supports the underpinnings of nationalism — and I happen to think that the individual sovereignty of a country is a good thing and a strong thing. I think strong countries and strong nationalist movements in countries make strong neighbors, and that is really the building blocks that built Western Europe and the United States, and I think it’s what can see us forward.

Bannon does not worship Putin, who he recognizes as a kleptocrat. But, like many people on the right, he finds common ground with Putin’s rejection of liberal internationalism. Trump’s view of Putin is best left to future psychobiographers, but Trump, like Bannon, is clearly a nationalist who celebrates state sovereignty.

Bannon versus Trump

It is hard to imagine how Bannon’s romantic apocalyptic thought, and Bannon’s role in the White House, can survive contact with reality. The botched travel ban is only the first illustration. The ban was not sure it was anti-Muslim or pro-national security, and this equivocation doomed it in court.

Trump, I think, has no desire to launch a crusade against Islam—what he wants to do is shut the doors and withdraw America in on itself. He also does not feel any attachment to the sort of religiously based smallholder capitalism that Bannon apparently seeks (whatever it would entail). Trump is pro-business, pro-crony-capitalism, pro-Ayn-Rand-libertarian capitalism, pro-corporatism, all at once. Trump’s views, if pursued rationally, may have a chance of political success based on the interests of business and on the fears of ordinary people frightened of immigration and international trade. Bannon’s do not.

Trump’s Puzzling 2-for-1 Executive Order

Under the new “2-for-1” Executive Order (and a subsequent guidance document), a regulator who wishes to issue a new regulation must find two old regulations to withdraw at the same time. Moreover, the new regulation is barred unless its “costs” are offset by withdrawn regulations. The justification for this order is difficult to understand.

Consider the following example:

Proposed Regulation A: $500 benefits – $100 costs = $400 net benefits

Old Regulation B: $100 benefits – $50 costs = $50 net benefits

Old Regulation C: $100 benefits – $50 costs = $50 net benefits

In this example, the regulator can issue Regulation A (which produces costs of $100) only if it withdraws B and C (which jointly create costs of $100, exactly offsetting A’s costs).

The net effect of the Executive Order in this example is to reduce aggregate social benefits from $400 (A alone) to $300 (A plus the withdrawal of B and C)? What could possibly be the reason for that?

The Executive Order is not a model of clarity; there are other ways to read it. Maybe the Order means that the regulator must find and withdraw two inefficient regulations, a regulation D and E which (unlike B and C) jointly produce net benefits of negative $100, that is, their costs exceed their benefits. But shouldn’t an agency withdraw those regulations on its own? Why wait for proposed Regulation A to materialize? It seems that the only effect of the Executive Order would be to encourage agencies to warehouse old, inefficient regulations, holding them in reserve so that the agencies can withdraw them when it is time to issue a new regulation.

The confusion doesn’t stop there. Many regulations impose one-time fixed costs on industry. Factory owners must, for example, buy the scrubber and install it; the subsequent operation of the scrubber will be much cheaper. A regulation’s initial cost-benefit analysis will account for all these costs. But by the time that an agency wants to issue Proposed Regulation A, most of the costs will be sunk. If the Executive Order’s rule applies only to future costs, it will be extremely difficult to find old regulations that can be withdrawn so as to make room for Regulation A. Regulation, for all intents and purposes, will come to a halt (putting aside exceptions in the Order for routine regulations, national security regulations, and so on).

The only possible defense of the Executive Order is that the Trump administration believes that agencies routinely exaggerate benefits (or understate costs) in order to justify regulations that cause more harm than good. The Executive Order puts a crude brake on all regulation in order to halt this behavior. A simpler approach, which avoids the perverse effects of the Executive Order, would be to freeze regulation while ordering agencies or outside auditors to perform rigorous cost-benefit analyses of past regulations as well as new ones.

The presidency shrinks

… if the Ninth Circuit panel’s reasoning survives further layers of review. Consider this passage from the opinion:

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b)and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.

When the district court holds a hearing on the motion for a preliminary injunction, it will consider evidence regarding President Trump’s “intention” or “purpose.” The state of Washington will seek emails, documents, and testimony from people in the White House (including Steve Bannon), Rudolph Giuliani, and others. I don’t know how many of these people will be required to testify, and how many documents will be privileged. But in the end the court will make a determination as to whether Trump deliberately targeted Muslims with no national security justification.

Suppose the court makes just such a determination. That means that whenever Trump in the future orders a national security action that burdens Muslims in any way, challengers will be able to cite a judicial opinion finding that Trump has acted on anti-Muslim animus. While a finding of a deliberate intention to target Muslims in Executive Order #1 does not necessarily imply a similar intention in Executive Order #2, the judicial opinion lays the groundwork for such a finding, increasing the probability that next time around courts will issue TROs again. The Ninth Circuit has placed Trump on probation.

If you don’t like Trump, you might celebrate. But remember that this extra layer of judicial review will burden Trump even when he acts with a national security justification—like when Obama ordered extra vetting of Iraqi refugees in 2011. While a court might not ultimately block Trump from acting, a TRO will always be a real possibility, which means that a necessary measure for our safety may be blocked. We may have a new regime of heightened judicial review in national security cases because courts believe the president is a bigot. This has never happened in all of American history. The country is less safe as a consequence.

Trump will blame the courts for preventing him from protecting the country. But the fault lies with him. The key problem is that two goals that he apparently holds—protecting the country from terrorism and ridding the country of foreign (Muslim) influence—are in tension rather than mutually reinforcing, as he or Bannon probably believed. The logic is simple. If Trump is a bigot, then he will take anti-Muslim actions citing security as a pretext when the actions do not enhance safety in the short term. Courts will be skeptical because Trump has given them reason to be.

Trump versus the judiciary: the battle lines take shape

Trump, a diligent reader of my Dictator’s Handbook, has followed up his attack on the press with a challenge to the judiciary. Some commentators have sought to justify his behavior by pointing out that other presidents have acted similarly, and rightly so, because the judiciary itself has been corrupted by politics. Here is Steven Calabresi:

Out of politeness, Trump should not refer to judges as “so-called judges” — but he should be praised, not criticized, for taking on the judicial oligarchy in this country.

And the New York Sun, in an editorial entitled The Gorsuch Gaffe:

Mr. Trump is but one of the millions of voters who are upset by the politicization of the courts and he has emerged as a tribune for, among other things, millions of citizens who feel similarly. We’re among them. It’s not that we’ve lost our oft-expressed admiration for the greatest of our judges. They are heroes of the Republic. To protect them was an enumerated reason for seceding from Britain, which is why when they fail to redeem that bet it is so particularly — to use Judge Gorsuch’s phrase — disheartening.

Against those who see the judiciary as an independent branch of government, committed to protecting the “rule of law,” Trump’s defenders define it as an “oligarchy” that enforces a left-wing policy agenda. Trump, our Sulla, will clear away the rot.

The problem with this view is not the charge that the courts are politically biased, or even that they are an oligarchy. Until a few days ago, the most vigorous critics of the Supreme Court came from the left, who complained that the five-justice Republican majority (until Scalia’s death) sought to implement a right-wing agenda that favored property rights and discounted equal protection for vulnerable minorities.

The problem is the leap from a widely held view—that the Supreme Court, and hence the court system as a whole, is influenced by legally irrelevant ideological considerations—to the claim that a president is entitled to launch personal attacks against a trial judge who ruled against him, even before the ruling has gone through the process of appeal. Political science literature that finds evidence of ideological bias in the U.S. judiciary must be interpreted in light of political science literature that finds democratic failure in countries that hold the judiciary in low regard.

Until now, the remedy for judicial overreaching was thought to be the appointment process, through which Republicans could bend the Court to the right and Democrats could bend the Court to the left, in the process confirming each other’s and the public’s jaundiced view of the Court. And, of course, presidents have always criticized Supreme Court opinions they disagreed with.

The attack on an individual trial judge is a new step—a true violation of a constitutional norm—unless you think that Lincoln’s actions during a Civil War is relevant precedent. And Trump has doubled down by issuing veiled criticisms of the Ninth Circuit panel for giving Washington State the dignity of a hearing. Just holding a hearing is now interpreted as motivated by bias. Precedents and conventions are not self-defining; one needs at least an implicit constitutional theory. Will intellectuals fall into line and argue that because Lincoln suspended habeas corpus at the outset of a Civil War, Trump is entitled to as well? Not yet, I think.

Gorsuch v. Trump

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”).


Washington v. Trump

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.

What is the Trumpian view of the Constitution?

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.

What would a constitutional crisis look like?

Keith Whittington usefully identifies two types of constitutional crisis:

Operational crises arise when important political disputes cannot be resolved within the existing constitutional framework. (p. 2101)

Crises of constitutional fidelity arise when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions. (pp. 2109-10)

In the context of Trump, an operational crisis would occur if Trump directed border agents to disobey a judicial order blocking his temporary immigration ban. The agents would then need to choose whether to obey the president or the judge, with perhaps no clear sense of the proper thing to do. Trump has not issued such an order. But the sense that we may be on the brink of crisis arises because he has personally attacked Judge Robart, who issued a nationwide TRO, and has laid the groundwork for a more vigorous attack on the independence of the judiciary if a terrorist attack takes place in the future. If Trump successful cows the judiciary or the judiciary stands up to Trump, then a crisis might be averted. Whether the outcome is good or bad depends on your view of presidential power.

A crisis of constitutional fidelity could play out as follows. Suppose it turns out that Trump really seeks to pursue the alt-right agenda of purifying America of foreign influences, starting with Muslims. The executive order, which was limited to only seven countries, was just the first step in a broader plan. If so, Trump repudiates a norm that is currently regarded as constitutional by the legal and political establishment: a norm of nondiscrimination on the basis of religion. (I think there is in fact some question whether such a constitutional norm exists with respect to foreigners not on American territory, but put that aside.) A constitutional crisis will exist if Trump has such a plan and seeks to carry it out, especially if he tries to extend it beyond the limited confines of the executive orders.

How might a constitutional crisis play out? It depends on how public officials and ordinary people react to the allegation that Trump (or other officials) have acted unconstitutionally. There are many possible scenarios (public demonstrations, government paralysis, etc.), but it seems premature to imagine them.

It is possible to think that constitutional crises are not bad but good. The crisis that led to the Civil War ended with the abolition of slavery. The crisis initiated by Franklin Roosevelt’s court-packing plan eventually placed the administrative state on a firmer constitutional footing. What is distinctive today, putting the earlier crises in sharp relief, is that the challenge to the status quo has been brought by the forces of reaction, with liberals on the defense.

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