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.

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.

Crisis

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.

Populism

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.

Nationalism

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.

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.

… 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, 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.

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

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

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

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

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

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

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

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

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

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

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

— Jennifer Jacobs (@JenniferJJacobs) February 9, 2017

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

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

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

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

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

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

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

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

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

Liberal Legal

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

Trumpian

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

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

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

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

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

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

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

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

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

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

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

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

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

[Update:

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

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

]

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

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

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

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

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

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

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

7) “It was just a tweet.”

Yeah, right.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whoever—

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

(A) to influence any official act; …

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

18 U.SC. 201.

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

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

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

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

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