Gorsuch and Hamburger

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

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

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

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

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

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

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

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

Is Gorsuch a Hamburgerian? I would like to know.

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

Does Gorsuch matter?

adlaw votes

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

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

How does a populist govern?

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

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

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

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

— He attacked establishment institutions, above all the press.

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

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

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

— Vilification of political opponents.

— Implicit celebration of political violence.

— Vulgar language.

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

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

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

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

No wonder he has entangled himself in contradictions.

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

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

More on Trump’s lies

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

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

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

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

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

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

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

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

Trump and the angry grandpa theory of political dishonesty

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

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

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

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

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

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

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

The decline of supreme court deference to presidents

pres jus

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

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

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

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

Will the new travel ban be blocked by the courts?

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

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

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

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

The rise of bilateral labor agreements

BLA

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

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

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

Written with Ariel Porat

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

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

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

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

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

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

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

The fog of Trump

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

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

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

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

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

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

Trump v. his lawyers

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

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

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

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

The president is a they, not a he

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

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

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

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

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

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

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

Are human rights dead?

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

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

Will the new immigration order make a difference?

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

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

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

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

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

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.

Congress

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.

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