Only One President Has Defied the Courts

It’s not Trump.

Or, I should say, it’s not Trump yet. However, given this administration’s…broad view of executive power, it’s worth looking at how past presidents have interacted with a court system that opposed them. Most presidents, as you would expect, reacted to an unfavorable court ruling by obeying the courts’ directive, with only a few real exceptions.

From history class, I recalled that Chief Justice John Marshall had ruled against Andrew Jackson’s interest in dealing with the Native American populations. But upon further inspection, it appears that despite the famous quote of Jackson’s “John Marshall has made his decision; now let him enforce it!”, the ruling in Worcester v Georgia was actually not a constitutional crisis. The quote itself seems apocryphal.

Marshall ruled that Georgia did not have the ability to regulate the interaction between Georgians and the Cherokee; instead, only the federal government has that power. Georgia complied and they freed the plaintiff, Worcester, eventually, but Andrew Jackson had nothing to enforce, since the federal government was not a party to the suit. Moreover, the Indian Removal Act had already been passed, and so the removal of native tribes on the Trail of Tears continued, with Marshall’s ruling changing nothing.

In 1942, German sabateurs were captured on American soil. President Franklin Delano Roosevelt issued an executive order declaring they would be tried by a military tribunal, and they appealed that the President could not try them under a military tribunal, and they petitioned for a writ of habeas corpus under the 1866 decision Ex parte Milligan which stated that civilians in the U.S. could not be denied habeas corpus and their right to trial. In Ex parte Quirin, the Supreme Court ruled against the Germans, siding with the President. Pretty straightforward, except according to Newt Gingrich (couldn’t find it anywhere else), Roosevelt threatened the Court that he would ignore their ruling and refuse to issue a writ of habeas corpus if the justices decided against him. So not a constitutional crisis, just the threat of one.

In 1952 there was a famous case of Truman seizing control of steel mills during the Korean War. In Youngstown Sheet & Tube Co. v. Sawyerthe Supreme Court ruled against Truman, stating that the powers the president claimed to have under the Taft-Hartley Act were not present. One of the concurring opinions was that of Justice Robert Jackson who divided presidential power into three categories: (1) Powers explicitly granted or implied by Congress, (2) Powers that Congress has not stated a position on, and (3) Powers that Congress has explicitly or implicitly rejected from giving to the president. This has become the standard way of analyzing presidential versus congressional power. Of course, at the conclusion of the case, Truman immediately returned control of the steel mills to their owners. Again, the Court’s decision was respected.

Perhaps the most famous case of executive action gone overboard is the Watergate scandal. A special prosecutor obtained a subpoena ordering Nixon to turn over certain conversations he had recorded. Nixon argued that the special prosecutor had not proven the tapes were important to the investigation, that the courts did not have jurisdiction over this “internal” executive branch matter, and that the President has absolute executive privilege of communications between high government officials. The Supreme Court ruled unanimously against him on all three counts. However, in United States v Nixon, Nixon did comply and turn over the tapes, despite it likely ending his presidency. This was a major moment, as I detailed in “Against Trump“, several months ago. If he had refused, would the court have been able to hold him in contempt and have U.S. Marshals arrest him? Technically, the marshals are part of the Justice Department, so that seems problematic, as the Justice Department answers to the President. Regardless, we have gone through almost all the famous cases, and the President has basically never gone against an explicit court decision.

Going further back than any of these presidents, it’s possible that Jefferson was the first to have actually defied the courts. In 1807, Thomas Jefferson signed the Embargo Act which was meant to punish Britain and France during the Napoleonic Wars for their attacks on American shipping. It was a pretty miserable failure, and apparently in Gilchrist vs Collector of Charleston, Justice William Johnson ruled against the government’s authority (although this was a congressional action, not just executive action). The New Yorker says that despite this ruling, the policy remained in place until 1809, but it was so early on in American history that I’m having trouble finding any sources to validate that claim.

But we can do better than an alleged delayed repeal of an unconstitutional act of Congress from 200 years ago! The best example of defiance on record belongs to Abraham Lincoln in the aftermath of Ex parte Merryman, and it is quite unrepentant.

In 1861, Chief Justice Taney (in the capacity of a Circuit Court) ruled that President Abraham Lincoln had unconstitutionally suspended the right to the writ of habeas corpus during the Civil War. The court ruled only Congress has that power. Lincoln and the army defied the order. Their argument was hilariously reminiscent of Trump, stating that Taney had not actually ordered them to release Merryman. Of course, they didn’t stop there as several newspaper owners and editors were also detained by the federal government, as well as eventually the Baltimore police chief, the Baltimore mayor, and even 30 members of the state legislature! A Maryland state judge was not only arrested, but beaten unconscious by federal troops, and then held without being charged for six months.

Even after the judge’s ruling, Congress did not vote to authorize Lincoln’s suspension of habeas corpus, until two years later, in the 1863 Habeas Corpus Suspension Act.

So what are the takeaways? One is that it’s fairly common for presidents to claim they have more power than they do. Obama, for example, lost in the Supreme Court more often than any modern president. It is, however, highly uncommon for presidents to actually defy the courts and continue to use their claimed powers when the courts have ruled against them. If Trump were to do so, by my estimate he would be the only person to do so not during a civil war.

Another interesting point is that in terms of abuse of power and constitutional crises, Trump has done nothing in comparison to Lincoln. Certainly President Lincoln faced extenuating circumstances and a secession crisis that may have made further constitutional crises seem minuscule in comparison. Nonetheless, it seems clear in hindsight that suspending habeas corpus did not improve support for the Union in Maryland, nor was jailing critical members of the press really necessary for victory. Interestingly, according to author Marc Neely, Lincoln was able to get away with these civil liberties abuses because they were largely aimed at three groups with little political power: residents of southern states who had been stuck on the wrong side of the border when war broke out, residents of border states where Lincoln had little political backing anyway, and foreigners.

Of course, if anyone was justified in taking extreme actions on civil liberties, it would be the president during the civil war, but unfortunately, every executive targets politically vulnerable groups and justifies it under national security reasoning (AdamsWilsonFDR, NixonGeorge W. Bush). And as you’d expect, Lincoln’s actions have become a precedent for other abuses. This essay from the Heritage Foundation in 2004 cites Lincoln’s actions in justifying President Bush’s holding of “enemy combatants” without a trial, equating the war on terror with the dangers of the Civil War. Trump has used related rhetoric words to describe threats from immigration. Were he to ignore a court order in the future, it’s virtually certain to be under national security justifications.

Finally, regardless of Lincoln’s accomplishments, we should be very concerned with any presidents who cite Lincoln’s extreme wartime actions as justification for their policies. Lincoln’s circumstances were extreme, and even then I would argue his defiance of court rulings was questionable. Any test for when it is acceptable to suspend civil liberties should be equally extreme in rigor. For example, unless states have actually seceded and there currently exists a newly elected second president of those seceded states, Congress should not even consider curtailing civil liberties, much less the President alone. Nonetheless, the long history of executive overreach by American presidents is likely to continue under Trump. We can only hope it never reaches the unprecedented event of peacetime court defiance.


Leave a comment on the official reddit thread.

Encrypted Communication Apps

I have discussed this idea in the past, but normally I’ve only gotten excitement about encrypted communication from my fellow libertarians and netsec friends. But with the current Presidential situation, there seems to be more interest in communicating without being overheard by the government, even among my government-loving left-wing friends. And this is excellent! Even if you don’t need privacy, by communicating securely all the time, you make it less notable when you do have to communicate securely, and you create more encrypted traffic that other government targets of surveillance can blend into.

First, let’s go over a very quick summary of encryption. If you’re already familiar with encryption, skip down past this section and the pictures to the list.

Public Key Encryption in 5 Minutes

An encryption algorithm takes information, like text, numbers, picture data (it’s all just 0s and 1s to computers) and outputs different text on the other side. A good encryption algorithm will output text that looks randomly generated so that no information can be gained about the source text. That output is then sent out in the clear (over the internet, where people might be spying) to the recipient. The recipient then reverses the process, decrypting the message and getting the original text, numbers, picture data, etc. However, if an algorithm always created the same output data from the same inputs, bad guys could figure out what you were saying pretty quickly. This introduces the idea of keys. A key is a number the algorithm uses to change the output in a predictable way. If both the sender and the recipient have a secret key, they can use their keys and the algorithm to send messages that only they can read (without the right key, the algorithm won’t reverse the encryption):

Symmetric key encryption. Public domain image.

But we can do better! In our previous scenario, we need to somehow communicate the secret key separately from our message. That’s a problem, since we likely are using encryption precisely because we can’t communicate openly. The solution is something called public key encryption. In this system, each person has two keys, one public and one private. To send someone a message, you can encrypt the message with their public key, and then send it to them. Then only they alone can decrypt the message with their private key.

Public key cryptography. Public domain image.

The reality of the mathematics is slightly more complicated, but for our purposes, what matters is how the public and private keys exist in each messaging app. Messing with these keys is difficult and confusing for users, but loss of the private key means communication is unsecured. Therefore, when using encrypted messaging, it’s important to be aware of how the app uses and manages the keys.

The Best Apps

The following is my ranked order of preferred secure communication:

1. Signal. This the gold standard encrypted communication app. It’s open source, free, has group chat, works on mobile and desktop, and of course is end-to-end encrypted. It even has encrypted voice calls. The one significant drawback is that it requires a phone number. It uses your phone number to distribute your public key to everyone that needs to contact you.  Because of this, it offers excellent encryption (requiring no security knowledge!), but no anonymity. If you want that, check the next entry.

2. PGP Encrypted email. So this one is a bit complicated. OpenPGP (stands for Pretty Good Privacy) is an open protocol for sending encrypted messages. Unlike the other apps on this list, PGP isn’t an app and therefore requires you to produce and manage your own keys. The tools you can find at the link will allow you to produce a private and public key pair. To send a message to someone else, you will have to obtain that person’s public key from them, use the software to encrypt the message with their public key, and then send it to them. Because it is so much work, I have this method second on the list, but there is no better way to communicate securely and anonymously. To better distribute your public key, I recommend keybase.io (use that link to send use encrypted emails!). The good thing about PGP is that it can be used with any email, or really any other method of insecure communication. Additionally, it’s open source, free, and very encrypted. 

Both Signal and PGP are very secure methods of communication. The following apps are good, but they are not open source and thus are not as provably secure. They are still better than just using unencrypted methods like SMS text, email, etc.

3. Whatsapp. WhatsApp is pretty good. It’s free, widely used, implements Signal protocol (and requires a phone number), works on mobile and desktop, has group chat and encrypted phone calls, and is encrypted by default. Moxie Marlinspike, the guy who made Signal, the number one app on this list, actually implemented the same Signal protocol on WhatsApp. That’s great, but unfortunately, WhatsApp isn’t open source, so while Moxie vouches for WhatsApp now, we don’t know what could happen in the future. WhatsApp could push out an update that does sneaky, but bad things, like turning off defaults. It’s also important to acknowledge that WhatsApp’s implementation already isn’t perfect, but it’s not broken. If you use WhatsApp, it’s important to make sure the notifications are turned on for key changes. Otherwise, it’s an excellent, widely used texting substitute.

4. Threema. Threema has an advantage in that it isn’t based in U.S., and it’s more security focused than Whatsapp. Threema is fairly feature rich, including group chat, but it isn’t free, it’s limited to mobile, and it isn’t open source. Threema uses the open source library NaCl, and they have a validation procedure which provides some comfort, although I haven’t looked at it in depth and can’t tell if it proves the cryptography was done perfectly. This paper seems to indicate that there’s nothing obviously wrong with their implementation. Nonetheless, it cannot be higher on this list while still being closed source.

5. FB Messenger secret conversations. Facebook Messenger is a free app and when using its secret conversations options, the Signal protocol is used. The app is also widely used but it takes effort to switch the conversations to secret. An encrypted app that isn’t encrypted by default doesn’t do much good. FB Messenger does let you look at your keys, but it isn’t as easy to check as it is in WhatsApp, and since it isn’t open source, keys could be managed wrong or defaults changed without us knowing. It also doesn’t have other features like group chat or desktop versions.

6. iMessage. Apple has done a good job with an excellent secure protocol for iMessage. It’s also feature rich, with group chat and more, but it’s only “free” if you are willing to shell out for Apple products. While Apple does a good job documenting their protocols, iMessage is not open source, which means we can’t verify how the protocol was implemented. Moreover, we cannot view our own keys on the app, so we don’t know if they change, and we don’t know how Apple manages those keys. It is therefore possible that Apple could either loop government spying into their system (by encrypting all messages with an extra master key) or simply turn over specific keys to the government. The amount you are willing to use iMessage to communicate securely should be determined by the amount you trust Apple can withstand government attempts to access their security system, both legal and technological.

Things I have specifically not listed on purpose:

  1. Don’t use SMS. It’s not encrypted and insecure. It would be good to not even use it for 2-factor authentication if you have a better option.
  2. Don’t use email. It’s not encrypted and insecure.
  3. Don’t use Telegram. They created their own “homemade” crypto library which you should NEVER EVER DO. Their protocol is insecure and their encryption is not on by default. In fact, there are at least two known vulnerabilities.

Leave a comment on the official Reddit thread.

The Obama Presidency Was Bad

We’re already caught up in how terrible the Trump presidency is, but over the next four years, it will be important to remember just how bad the Obama presidency was. When overcome with frustration at the current administration, I would urge readers to come back to this post and remember that the last president was also quite terrible. In his farewell speech, Obama tried to make the argument for his presidency’s accomplishments, but many of them were simply court cases that were decided while he was president, or decisions that were nice but had little real policy impact.

There have been plenty of reflections on the Obama presidency, but I think a high level overview of everything Obama did would put in perspective just how awful he’s been, especially as we experience the incompetency and horrible policy decisions of the current administration. I’ve done this by letter grades A through F.

The A’s

Iran Nuclear Deal

So…there was only one thing I could give an A to. Even this A is very hesitant. We did give up a lot for this deal–the Iranian government is pretty awful and by unfreezing their assets, they got access to very large amounts of money. However, I don’t think there was much else to do. Unless Republicans actually wanted to declare war on Iran, this seems like the only way to stop them from developing a nuclear weapon.  Iran’s nuclear program will be prohibited from refining any uranium for 15 years, and this was accomplished without any military intervention whatsoever. That’s pretty excellent. Moreover, the average citizens of Iran matter as well and it is somewhat unfair to punish them with high inflation and economic hardship because their authoritarian government is irresponsible.  Cato expands more here.

The B’s

Trade

One of the most important accomplishments is that Obama’s administration worked to pass several free trade agreements with Korea, Colombia, and Panama. He also tried to complete the Trans-Pacific Partnership and the Transatlantic Free Trade Area, although he could have really pushed harder on these initiatives. Obama didn’t do a great job making the case for free trade and his signature deal was ultimately a failure; honestly, a B is generous here, and is more of a function of the importance of free trade more so than Obama’s actual impact. Also worth noting is that his rhetoric while campaigning was pretty vigorously anti-trade, so he should be commended for changing his mind on this.

Gay Rights

Obama ended Don’t Ask, Don’t Tell, but was still on the record as anti-gay marriage as late as 2012. Sure, public opinion on gay marriage shifted rapidly, but Obama basically waited until it was 50-50 to switch to the right side on this; the Libertarian Party has been on board with gay marriage since the 70s. He should also be applauded for essentially not getting in the way of the court case. I know that’s a low bar, but he could have fought it and tried to keep the DOMA. The other issue is that while this is excellent, the impact of gay marriage legalization is somewhat limited to people who can take advantage of it.

Cuba

The Cuban embargo was imposed over 50 years ago in a bid to quickly end Castro’s dictatorship on the island. It failed. 25 years after the Soviet Union had disintegrated, a president finally spent some political capital to remove an outdated institution. Trade embargoes harm populations, and trade embargoes on a country that has been crushed by horrific socialist economic policies are even more harmful. The president cannot remove the embargo, but everything he can do without Congress, Obama has done on this issue. Trade can bring countries together, and Obama took steps to build those bridges. If he had actually gotten the embargo lifted, this would be an A.

The C’s

Marijuana Legalization

And that’s it for the entirely positive! Marijuana’s big progress had basically nothing to do with Obama, and Obama actually started out fighting it, performing more federal raids on state legal marijuana dispensaries in his first term than Bush. Eventually the administration did make the decision not to continue attempts to enforce marijuana laws with federal police forces. While kind of obvious and not very impressive, this may turn out to be something we remember fondly during the long night of the Jeff Sessions era.

Healthcare

As an incredibly brief overview, the ACA is flawed because it does nothing to address the fundamental problem with the healthcare system: a lack of market forces.  The laws of supply and demand create incentives for lower cost and higher quality care. Plastic surgery and lasik are not covered by insurance and thus must compete on price and quality and over time these areas have seen remarkable improvement with prices remaining the same or even dropping.

Our insurance system insulates both consumers and providers of healthcare from the market prices; consumers don’t pay for care, they don’t pay different prices at different places, and they often don’t even buy the insurance that does pay for care. Instead their employers pay for the thing that pays for their healthcare. And sometimes, if you go to a hospital, the insurance doesn’t really pay for care either, it pays the hospital in obfuscated and arcane ways, which in turn provides the doctors and actual equipment needed to provide care. It’s a complete mess.

The ACA did do some nice things like allow people with pre-existing conditions and people who didn’t get their healthcare through their employees and poor people to get health insurance. This is great, and any healthcare reform should strive to do that. However, by not addressing the price issue, they doomed these reforms. Things have sputtered along, but healthcare costs have kept rising, and now insurers are stuck with a disproportionate amount of sick people, needing to raise prices, which only drives away more healthy people. The death spiral was a predictable consequence (and indeed I did predict this in 2010 in a blog attached to my real name and thus will not be linking to here). Obamacare was not a poorly intended bill, but it was an incredible missed opportunity to actually fix the healthcare system. The only reason I didn’t give it a lower grade was because the system was so bad already, it’s hard to argue it was made that much worse.

Global Warming

Obama took steps to reduce climate change. Even if you’re not concerned about the most dire predictions of global warming, that’s probably a net benefit. He also was able to get China to sign onto the Paris Agreement. While not having legal punishments for countries who break their promises, it’s a solid negotiating achievement. However, Obama also implemented, largely by executive order, regulations on coal plants in the US that will have very little impact on carbon emissions. It’s also not at all market oriented, and therefore not particularly economically efficient. Additionally, in his first year in office, Obama had a chance to try and pass a more economically efficient carbon credit trading bill. Assuming climate change is as dire a threat as many say it is (I’m admittedly less worried), it seems to be a poor decision to spend political capital on other bills that did pass, especially something that was as flawed as Obamacare.

The Economy

The employment rate is lower than it has been in a long time, but the problem is this graph. Labor force participation has plummeted from 65% in the depths of the recession to around 62% now. The last time it was this low was before 1980. Since the current labor is around 160 million people, and we are at 62% participation, that means the cohort of the working age population is about 258 million. In 2009, unemployment was around 9%. With a labor force of 155 million people, that’s almost 14 million unemployed. Today with an unemployment rate of 4.7%, that’s only 7.5 million unemployed. However, looking at the people not in the labor force in 2009 there were 83.5 million not working but not unemployed. In 2017, there are 98 million not working but not unemployed. so unemployment dropped by almost 7 million, yet more than twice that many more people were staying out of the labor force entirely. The economy isn’t in free fall, but it’s not knocking it out of the park either, and this is 8 years after the recession. This isn’t entirely Obama’s fault, as the Federal Reserve is much more responsible for economic success overall, but the things Obama did have control over were abject failures: fiscal restraint, entitlement reform, and deregulation.

Immigration

Obama’s legacy on immigration liberalization is mixed. Unfortunately, as this is one of the more important issues in improving the world, a mixed record is disappointing. Obama deported more people than George Bush and he failed to pass any sort of comprehensive reform bill. Obviously, he couldn’t pass bills on everything, but this would have been a pretty important area to do so. Obama did however create an executive order delaying deportations for millions of illegal immigrants. This was a bit odd constitutionally, but with so many illegal immigrants in the United States, it would be impossible to deport them all anyway. Obama’s order simply prioritizes some over others, protecting children and parents of American citizens. This was certainly a good policy, but unfortunately Obama’s legacy in this area should have been so much better.

The D’s

Endless Wars

Obama is the first president to be at war for every day of his presidency. From Iraq to Afghanistan to Libya and Syria, to undeclared wars and bombings in Yemen and Pakistan, we have entered a new era of endless war. Libya is specifically horrifying: Obama chose to involve the American military in Libya unilaterally. He explicitly did not get authorization from Congress, and in fact Congress explicitly voted against a resolution to authorize his military involvement after the fact. That is a terrifying precedent to give Donald Trump.

The only reason this category is not an F is because of Obama’s continued reluctance to expand the US involvement in Syria.  Of course, he did this in the worst possible way, by drawing a line in the sand and then backing down from it but it’s undeniable that a larger American role in Syria would have involved the US in one of the largest, bloodiest civil wars of the last decade. Of course, we have not even touched the fact that American troops are in Iraq 14 years after the invasion, and many US contractors remain in Afghanistan 16 years after that invasion. Obama has still institutionalized war in way never before seen.

The F’s

Surveillance

I mean wow. How did we get here? If you want all the citatations, this Mashable article is a good start. The United States government engages in broad sweeps of Americans’ phone records through unconstitutional general warrants issued via a secret court that had no defense team, no oversight, and has only rejected a handful of warrants in its entire history. The NSA also had a program for collecting data on foreigners and Americans from major technology companies, as well as a massive database storing all of that information for later search. Every available method of siphoning data is apparently being used.  The NSA also invested heavily in ways to break internet encryption standards. They even paid $10 million to RSA to get them to set their default encryption algorithm to one that was fundamentally broken in one of their products. Most impressively, it turns out that the big phone record collection the NSA was conducting in total secret, that had no oversight and Senators couldn’t even talk about, it’s illegal according to a federal appellate court.

It was such a disaster that Congress eventually tried to pass a reform bill to fix Section 215 of the Patriot Act which is what the courts cited as the justification for these general warrants. Yet in the end, that bill was watered down to the point of uselessness, with Justin Amash, Thomas Massie, and Rand Paul all voting against it due to its lack of real power. In fact, the bill extended the Patriot Act for several years. Obama’s legacy in this area is a total disaster, and he leaves an out of control intelligence agency with no oversight in the hands of a petty authoritarian. The NSA (and all agencies they share information with) knows intimate details about all of our lives, our communication patterns, and our digital existences. As we’ve written before, this is not good.

Transparency

Reason does a good job tearing the Obama administration apart over the “most transparent administration in history” line. Again, this area is such a disaster there are too many things to cover. We can start by discussing how just a month or two prior to the Edward Snowden revealing everything we talked about in the last section, DNI Clapper blatantly lied to a Senate committee about the government’s spying capability. Obama himself has hardly given any interviews to the press. His administration has had more than double the Espionage Act charges against whistleblowers than all previous administrations combined. Which is especially concerning since none of these were acts of espionage! These were legitimate problems that were hidden from view from the public, brought to light by people doing the right thing. But the secrecy was pervasive throughout the administration; regular employees were banned from talking with reporters, a record number of FOIA requests were denied and at least 1 in 3 were denied improperly (which was only ever found out if challenged), and, of course, the government had a secret extrajudicial kill list.

Drone Strikes

Conor Friedersdorf writes that in Obama’s first year in office, his administration conducted over 100 drone strikes…in Pakistan. Quick recap: Congress voted for an Authorization of the Use of Military Force against the perpetrators of the 9/11 Attacks, which allowed the government to invade Afghanistan. Congress also voted to go into Iraq. Pakistan is not one of these countries, yet apparently Obama was carrying out an entire proxy war via drone strikes. In 2010, those strikes only intensified, yet it was worse than that; to cloud the truth, the Obama administration counted all military age males in the vicinity of these strikes as combatants, regardless if they were civilians or not. There were eventually reforms to this process, and the number of civilian casualties per strikes started to go down, but this is but the smallest of victories. In waging these undeclared wars in Yemen, Pakistan, and Somalia, the Obama administration concocted an absurd “legal” process to target specific individuals without a trial, including American citizens. We are talking about a logistically planned and funded protocol for murdering American citizens overseen only by the President. This process eventually ended up killing a civilian by accident, a 16 year old American. This is unjustifiable. No one was ever held accountable for these lawless actions, and the president retains power to murder at will, which he has promptly done, murdering the deceased teenager’s sister this past week. Someone get this guy a Nobel Peace Prize.

Executive Power

This section condenses much of what Gene Healy says in his excellent piece “Goodbye, Obama”. The powers the Obama administration seized and expanded are vast. While initially running against “dumb wars” and unauthorized wars, Obama became the first president to be at war for every day of his presidency. He undertook drone strikes in countries where he had authorization to be in, he even undertook an entire military action in Libya when Congress had expressly voted against supporting it. He continued to use the 2001 AUMF six years after the death of Osama bin Laden and against a group (the Islamic State) that essentially didn’t exist on 9/11. And the Trump administration has continued this justification. His drone strikes have killed hundreds of civilians, and even American citizens. He has created a secret kill list with no oversight from courts or Congress. He has ascended to new heights of secrecy and prosecution of whistleblowers, and he has thwarted attempts at transparency at every turn. Without public knowledge, the ultimate oversight of the democratic process is destroyed as well. And none of this is even touching areas outside national security where Obama also took unilateral presidential orders to new and creative areas. These include instituting new immigration law by executive order when it was bogged down in Congress, creating new overtime labor rules, adding new environmental regulations on power plants, national school curriculum requirements, and even unilaterally amending Obamacare. Healy writes “More than any recent president, Obama has embraced and, to some extent, legitimized the anti-constitutional theory that congressional inaction is a legitimate source of presidential power.”

Obama’s legacy is the Imperial Presidency. Simply by occupying the same office as Obama, Donald Trump inherits vast powers, legislative, military, and judicial. Americans’ private information is available, their lives at risk without the need for due process, the very laws of the country can be changed via the presidential pen. Barack Obama has accomplished much during his presidency, but most of his important projects have ended in utter disaster, and the manner of their attempted accomplishment has greatly imperiled the separation of powers and constitutional restraint. While itg is quite possible, even likely, that the Trump presidency will be worse still, we cannot forget the incredible cost and horrific events of the Obama legacy.


Leave a comment on the official Reddit thread.

Immigration Bans and Executive Authority

Late last week, President Trump signed an executive order which blocks entry of aliens, regardless of visa status (i.e. student visas, tourist visas, etc), from seven countries for 60 days. It also blocks all refugees from coming to the United States for 120 days. There was some confusion for green card holders, many of whom were detained but ultimately allowed through customs. However, a federal judge forced the administration to cease deportations of visa holders already in the United States. Visa holders from the seven countries who have not made it to U.S. soil are still unable to board flights to America.

Obviously Trump’s ban on immigrants from certain countries is terrible politics and a terrible policy. The stories, like many from government interventions, write themselves:

For the president, who limited his comments on the ban to his Saturday afternoon remarks, the optics were not good. One of the first people detained, Hameed Khalid Darweesh, was an Iraqi interpreter who served the U.S. military for over a decade. (“What I do for this country? They put the cuffs on,” a tearful Darweesh told reporters at JFK after his release.) One Iranian woman barred from the United States, Samira Asgari, was coming to Harvard Medical School to work on a cure for tuberculosis. (“I was pretty excited to join @soumya_boston’s lab but denied boarding due to my Iranian nationality,” she tweeted. “Feeling safer?”) The media was flooded all day with tales of shocked families finding themselves locked out of the United States; if any of them were terrorists, they were awfully well-disguised.

Beyond the anecdotes, the policy doesn’t stand up to the simplest of critiques. The most obvious of which is that no terrorists from these countries have ever carried out a lethal attack in the United States. More generally, the policies we have put in place to fight terrorism are often worse than the imagined terrorist threat; the TSA is worthless and wastes tens of billions of dollars a year, the NSA has never stopped a single terrorist plot with its vast trove of data on Americans collected without a warrant, and the Iraq and Aghanistan wars cost trillions of dollars, thousands of lives, and we are still involved in these countries seven years after the death of Osama bin Laden. This isn’t even counting the fact that in the last 20 years, you were over 150 times more likely to die in a car accident, and eight times more like to be shot by a police officer than you were to be killed by a terrorist. David Bier goes into more reasons here, namely that this order helps the Islamic State and repudiates America’s history of taking refugees (not to mention immigration resrictions are bad for the economy!).

If we lived in parliamentary system, this would be about as far as we could take the argument, and if an irresponsible head of state wanted to enact terrible policy no matter the criticism, he or she could do that, as indeed, for example, the U.K. has done again and again.   However, in our supposedly constitutionally limited government, the next biggest issue is whether his ban is even legal.

Most of the work on this argument has already been done by David Bier of the Cato Institute (and a recent NY Times article) arguing against it and Andrew McCarthy at the National Review arguing for the executive order’s legality. Patterico at Redstate has a good follow-up but it’s fairly detailed and I’ll try to summarize it here.  8 U.S. Code § 1182 (f) gives the President sweeping powers to halt immigration in almost any form from almost any country for almost any reason. That law was passed in 1952, and is a perfect example of the problems of executive authority and Congressional deferral. However, in the Immigration and Nationality Act of 1965, Congress explicitly banned immigration discrimination on the basis of nationality, place of birth, and place of residence. As Bier writes, this legislation was passed explicitly as a rebuke to prior immigration policy, and thus it seems illegal for Trump to make sweeping bans on all immigrants from a specific country.

McCarthy makes a weird argument about executive authority that I find highly unconvincing, most of which is based on a quote by Thomas Jefferson (who was not at the 1787 Constitutional Convention), and which talks about “foreign business”, not immigration. Upon this quote, McCarthy seems to assume all immigration authority comes from the president, which is obviously untrue given all the statutory law passed by Congress that was discussed in the previous paragraph. As Patterico notes:

McCarthy also argues …it doesn’t matter what Congress says about who comes into the country because that’s up to the President.

This argument fails as an initial matter because (as Dan McLaughlin has pointed out) it is Congress, not the President, which has plenary power under the Constitution “to exclude aliens or prescribe the conditions for their entry into this country.” It can delegate a conditional exercise of that power, but if it prohibits that power from being exercised in a certain manner, the President cannot overrule Congress.

Getting back to those laws, McCarthy makes the case that the 1952 law empowering the president still remains, citing the 1980 revocation of Iranian visas. Bier has countered that there were many exceptions to this order, specifically humanitarian reasons, and many people continued to come into the country that year. Interestingly, Bier also points out that in the 1990s, there was litigation about country of origin bans concerning Vietnamese citizens. A law stating that Vietnamese who had fled to Hong Kong had to return before applying for American immigration visas was struck down (due to the ban on discrimination due to place of residence). McCarthy also argues that this is irrelevant because the Iranian ban and the current ban are national security concerns while the Vietnam law was not. Again to Patterico’s piece:

In essence, McCarthy is saying: even if the text says the President can’t discriminate on the basis of nationality or place of residence, that was designed to address nasty and mean discrimination by racist types, not good discrimination based on a desire to protect the country. McCarthy is asking us to ignore the text and look at the hearts of the legislators.

This is the same mushy and standardless sort of textual interpretation that leftists love to use when there is a clear textual provision they don’t like

Obviously, if we allow national security exceptions to a law, then all expansions of executive power are simply justified via national security, just as they always are.

Finally, McCarthy makes probably his best point on an Obama era immigration law, Section 1187 (a) (12), which governs the Visa Waiver program. In this law, Congress singled out certain countries where a person meeting certain nation of origin or residence requirements could have their documentation waived by the executive branch. Now Trump isn’t implementing this law, but McCarthy’s point is that Congress has passed a law that discriminates in ways prohibited by the 1965 statute. From Patterico again:

But that begs the question to be decided: does the President have authority to do this on his own? Please understand: I’m not saying Congress couldn’t undertake the actions Trump took in this order. I’m saying Congress could — but that the President can’t, alone, if Congress has already told him he can’t.

To add: McCarthy says that Congress never explicitly revoked the 1952 authority giving the president the power to ban any immigrants he wanted…but they also didn’t revoke the 1965 law stating there can be no discrimination on the basis of country. Congress can change it’s mind on these things, but the President can’t. If Trump’s power from the 1952 law remains in place, then his reduction of power from the 1965 law also remains in place, no matter what limited discrimination Congress made under Obama.

So what’s the bottom line? For one, there are too many laws in the United States. The U.S. Code is ridiculously complex, and we never repeal old laws. Authority that Congress passes to the President seems to just collect over time, leading to more and more dangerous powers that the President has, made even more dangerous when put in hands as dangerous and tiny as Trump’s. Additionally, this argument from Bier and Patterico looks good to me now, but it’ll ultimately come down to the ACLU and the government’s arguments in federal court. Hopefully, if the courts strike down Trump’s order he’ll cede defeat and not trigger a constitutional crisis. It’s both good that the system worked to check a badly made policy so quickly and terrifying that it only took 8 days for Trump’s executive reach to clash with a federal judge.

Links 2017-1-12

As we approach the time when free trade is the heretical advice rather than the obvious logical one, it’s time to brush up on our free trade arguments. Here’s an interesting one: would you ban new technology to save the jobs tied to the technology it replaces? Would you ban light bulbs to save candlemakers? Cars to save horsebreeders? It’s a ridiculous proposition to freeze the economy at a certain point in time. Well, there’s no economic difference between new technology and free trade. In fact, we can treat international trade as a fancy machine where we send corn away on a boat and the machine turns the corn into cars.  

And speaking of free trade, this is the economic modeling for why a tariff is unequivocally inefficient. One of the impacts of a tariff, by the way, is an increase in the market price of a good. Anyone saying that a tariff won’t have negative effects on consumers is just plain wrong.

The excellent open source encrypted messaging app Signal is so useful, it has to avoid having its application servers blacklisted by oppressive regimes. It uses a workaround of having encrypted connections through content delivery network, in this case, Google itself. Moxie Marlinspike, the creater of Signal says “Eventually disabling Signal starts to resemble disabling the internet.”

One of the biggest problems with Trump I pointed out last year was the total unknown of his policies. He keeps changing his mind on almost every issue, and when he does speak, he wanders aimlessly, using simplified language that is more blunt and less precise. Fitting right into this pattern, Trump has taken to Twitter for much of his communication, even since winning the election. Twitter is a short and imprecise tool for communication, and this New York Times article shows just how much uncertainty Trump creates with his tweets.

Related: Bill Perry is terrified of increased nuclear proliferation. The article is a little alarmist, but it’s worth remembering that nuclear war was a real threat just 30 years ago. It should not be taken for granted that nuclear war will never occur, and Trump seems the most likely of the post-Soviet presidents to get involved in a confrontation with a major nuclear power.

Scott Alexander reveals his ideal cabinet (and top advisers) if he were president. It’s not only remarkably better than Trump’s, it’s probably better than any cabinet and appointees we’ve ever had (Bernie Sanders notwithstanding). Highlights include: Alex Tabarrok as head of the FDA, Scott Sumner as Chairman of the Fed, Charles Murray as welfar czar, Peter Thiel as Commerce Secretary, and Elon Musk as both Secretary of Transportation and Energy.

Speaking of cabinets, George Will details just how out of touch soon-to-be-Attorney General Jeff Sessions is, recounting his 2015 defense of unlimited civil asset forfeiture, a procedure by which the government takes cash and property from civilians who have been convicted of no crime and therefore have no recourse or due process protections. Don’t buy into the story that all of Trump’s appointees are horrific and terrifying; there is a gradient of his cabinet appointments depending on their authoritarian tendencies and the importance of their department, and unfortunately Jeff Sessions as Attorney General is by far the most concerning.

Missed this earlier last year, and worth keeping in mind as BuzzFeed gets hammered this week over their publishing of an unverified dossier: apparently the FBI already has daily aerial surveillance flights over American cities. These seem to be for general investigative use, not vital national security issues: “But most of these government planes took the weekends off. The BuzzFeed News analysis found that surveillance flight time dropped more than 70% on Saturdays, Sundays, and federal holidays.” 

Speaking of BuzzFeed and the crisis of “fake news”, which itself may not even be anything compared the crisis of facts and truth itself, Nathan Robinson has an excellent take on the matter (very long read). With the lack of facts in the election, the media and Trump’s critics generally have to be twice as careful to rebuild trust in the very concept that objective truth exists and can be discussed in a political context.

Government regulations have hidden, unexpected costs. These regulations hurt people regardless of their political affiliations, as a Berkeley professor found out when trying to evict a tenant that refused to pay rent. California’s rather insane tenant laws mean that serial rent-cheaters can go from place to place staying rent free for months at a time.

I’ve often thought about the right ordering of presidents from best to worst, taking into account a libertarian, liberty-promoting approach. One difficulty is the non-comparability of presidents separated by centuries. However, this blog post from 2009 actually does a nice job of scoring the presidencies. I don’t agree with each one, but it’s a rough categorization that makes sense. It even gave me an additional appreciation for Ulysses Grant, who I figured was mostly president by the luck of being the general in charge when his army won the Civil War. Other highlights include William Henry Harrison scoring 11th, thus beating over three quarters of the competition despite only being in office for a month. I feel like I could have found more worse things on Andrew Jackson, and in general I feel like I agreed with the list more the closer I got the end.

Jeffrey Tucker at FEE has a nice article about the difference between spreading ideas and actual economic production of goods. His thesis is that we have much less control over the developing of ideas than we do of developing normal rivalrous goods. And since libertarians are pretty solid at grasping the idea that the production of goods cannot be controlled from the top down, we should also acknowledge that top-down approaches to developing ideas are even more preposterous, especially in the digital age of decentralized information. I’ve thought about this a fair amount considering I like I blogging but I’m well aware few people read this blog. The simplest way to restate Tucker’s point is that you have to have good ideas more than good distribution. I don’t know if that’s an accurate take, but certainly good ideas are the single most important part of spreading your ideas.

There’s a saying on the internet that “Democracy is two wolves and a lamb voting on what to eat for lunch”. The 2016 election is excellent demonstration of just how poorly democracy can fail, but what our all alternatives. How about Futarchy? This is Robin Hanson’s idea to improve public policy: “In futarchy, democracy would continue to say what we want, but betting markets would now say how to get it. That is, elected representatives would formally define and manage an after-the-fact measurement of national welfare, while market speculators would say which policies they expect to raise national welfare.” Let’s hold a referendum on it; those seem to work out.

Bitcoin has been on the rise in recent months. So have other cryptocurrencies. But rather than focus just the price of the cryptocurrency, why not look at the total market valuation of those currencies? Sure, you might have heard that Bitcoin was up to $1000 again recently, but did you know that its total market cap is ~$13 billion? At the very peak of the Bitcoin bubble in 2013, all Bitcoins together were valued around $13 billion, but only for a matter of days. This time Bitcoin has kept that valuation for over 3 weeks. With more markets and availability, Bitcoin is becoming a real alternative for people whose national currencies have failed them. 

Postlibertarian throwback: When Capitalism and the Internet Make Food Better. A reminder that the despite the ongoing horrors of government we are witnessing, the market is still busy providing better products and cheaper prices.


Leave a comment on the official reddit discussion thread.

Russian Hacking and Divisive News Cycles

In 2014, the death of Michael Brown became the focal point of first the Ferguson protests and then the beginning of the Black Lives Matter movement. Just a couple months earlier, Eric Garner had been strangled to death on Staten Island by police on suspicion of selling untaxed cigarettes, while everything was caught on film. Michael Brown’s death had not been caught on film, but there had been video evidence of him robbing a convenience store and assaulting the store clerk moments before his altercation with a police officer. A later Justice Department investigation also found no wrongdoing on the part of the police officer who killed Michael Brown.

So the question is, why did the Michael Brown case get so much more attention than the Eric Garner case? Even Bill O’Reilly thought what happened to Eric Garner was unfair. Scott Alexander suggests the most successful stories are those that are controversial. A story that only induces frustration in one side doesn’t foment much of a debate. But on a controversial or murky topic, one can signal their loyalty to their tribe much more strongly; you really care about police brutality if you criticize the police when there’s no video evidence in Ferguson. Criticizing the police when there’s clear evidence of an illegal chokehold on Eric Garner doesn’t get you points.

Of course, even if the Michael Brown case was a bad example, the general topic of police abuse is important. I can’t say the same for the continued interest in this Russian Hacking story. For those who don’t know, the Clinton campaign accused the Russian government of hacking into the DNC’s email server, during the campaign. Trump denied that we knew for sure it was Russian state-sponsored hacking. More recently, US intelligence agencies have claimed they have evidence of Russia being involved, including high level Russian officials. They have also claimed they cannot show this evidence to the public as it would compromise their intelligence.

From top to bottom, the entire story is just so boring to me. This “hack” was apparently just a spear-phishing attack, something that is fairly easily avoided by not clicking on the wrong links in your email. Or using two-factor authentication. People are hacked this way every day, but it’s reasonable to have slightly higher expectations for political officials. But again, these weren’t political officials in office, it was the DNC in an election year. What was hacked was also not particularly valuable; we saw a bunch of emails of DNC officials being politicians. Yes, it put the DNC in a bad light, looking like they were colluding with the Clinton campaign to have her win the primaries…but what exactly is the point of a political party if not to try and win political office? The DNC obviously thought Hillary had a better shot than Bernie. That’s not a crazy idea. Moreover, most of these emails came long after Bernie had fallen behind in the delegate count anyway.

The only people these emails could have surprised are those unfamiliar with politics or those not skeptical enough (and not this blog). It seems quite possible that Russia was indeed behind these attacks; they have the capabilities and the motivation as the Clinton State Department was quite annoying to Russian foreign interests. Trump has signaled a much more dovish approach to Russia, as well as an admiration for Putin’s strong man policies. There’s some uncertainty, but the Clinton campaign, Obama administration, and now US intelligence all insist Russia was involved and trying to “influence” the US election…by releasing accurate exact transcripts of emails of DNC officials. Ok.

What if these accusations are true? Suppose Russia did sponsor very simplistic attacks on the DNC email server and then released those emails to the public in order to make Clinton less popular. Who cares? Russia doing this doesn’t change the content of the emails; what if a whistleblower at the DNC had leaked them? It changes nothing.

And while we’re talking about changing nothing, I’m under the impression that these emails changed very little. Trump voters weren’t exactly huge DNC and Clinton fans before they read these emails; neither were Bernie supporters. I doubt this had much impact on the election.

Many on the left have been shocked Trump won’t admit Russia was behind this hack, but it’s such a low stakes thing, I can’t imagine it would much change his position towards Russia. Meanwhile, Trump has repeatedly said much more heinous and horrific things, likely in the week prior to you reading this blog post.

To continue the absurdity, recently US intelligence agencies released a report detailing why they think Russia was behind the hack. The report is embarrassing. It has no details or evidence, and it spends the majority of its pages talking about the Russian state-sponsored news station RT and how it criticizes the US government. I’m still fairly confident that Russia is indeed behind this hack, but the report makes American intelligence look completely incompetent, and its evidence of the hack purely circumstantial.

Ok, I’m going to stop talking about this non-story. The problem is that this non-story has continued for weeks without my help. I bring it up only to show the truly insidious nature of a divided outrage news cycle. This debate being had on Russian hacking is based on little and has essentially no relevance to the very real challenges we face. The president-elect has continuously vowed to challenge free trade ideas which will seriously harm the global and domestic economy. He’s planned to use executive authority in insane ways to violate civil liberties, including torturing people, committing war crimes, and depriving people of due process. We ought to be talking about those issues and what Congress will be doing to thwart him, but instead we are caught up arguing about email phishing scams.


Leave a comment on the reddit discussion thread.

2017 Predictions

It’s fun to have opinions, and it’s easy to craft a narrative to fit your beliefs. But it’s especially dangerous to look back at events and place them retroactively into your model of the world. You can’t learn anything if you’re only ever looking for evidence that supports you.  However, if you try to use your model of the world to create testable predictions, those predictions can be proven right or wrong, and you can actually learn something. Incorrect predictions can help update our models.

This is, of course, the basis for the scientific method, and generally increasing our understanding of the world. Making predictions is also important for making us more humble; we don’t know everything and so putting our beliefs to the test requires us to reduce our certainty until we’ve researched a subject before making baseless claims.  Confidence levels are an important part of predictions, as they force us to think in the context of value and betting: a 90% confidence level means I would take a $100 bet that required me to put up anything less that $90. Moreover, it’s not just a good idea to make predictions to help increase your knowledge; people who have opinions but refuse to predict things with accompanying confidence levels, and therefore refuse to subject their theories to scrutiny and testability, must be classified as more fraudulent and intellectually dishonest.

First let’s take a look at how I did this past year, and see if my calibration levels were correct. Incorrect predictions are crossed out.

Postlibertarian Specific

  1. Postlibertarian to have >10 additional posts by July 1, 2016:  70%
  2. Postlibertarian Twitter to have more than 240 followers:  70%
  3. Postlibertarian.com to have >10k page loads in 2016: 50% (had 30k according to StatCounter)
  4. The predictions on this page will end up being underconfident: 60%

World Events

  1. Liberland will be recognized by <5 UN members: 99% (recognized by 0)
  2. Free State Project to reach goal of 20,000 people in 2016: 50% (occurred February 3rd)
  3. ISIS to still exist: 80%
  4. ISIS to kill < 100 Americans 2016: 80% (I think <100 were killed by any terrorists, fewer in combat)
  5. US will not get involved in any new major war with death toll of > 100 US soldiers: 80%
  6. No terrorist attack in the USA will kill > 100 people: 80% (50 did die in the Orlando shooting unfortunately)
  7. Donald Trump will not be Republican Nominee: 80% (whoops)
  8. Hillary Clinton to be Democratic nominee: 90%
  9. Republicans to hold Senate: 60%
  10. Republicans to hold House: 80%
  11. Republicans to win Presidential Election: 50% (I predicted in December, Nate Silver had Trump at 35% the day of, who’s a genius now??)
  12. I will vote for the Libertarian Presidential Candidate: 70% *
  13. S&P 500 level end of year < 2500: 70%
  14. Unemployment rate December 2016 < 6% : 70%
  15. WTI Crude Oil price < $50 : 80%
  16. Price of Bitcoin > $500:  60%
  17. Price of Bitcoin < $1000: 80%
  18. Sentient General AI will not be created this year: 99%
  19. Self-driving cars will not be available this year to purchase / legally operate for < $100k: 99%
  20. I will not be able to rent trips on self-driving cars from Uber/ Lyft: 90% **
  21. Humans will not land on moon by end of 2016: 95%
  22. Edward Snowden will not be pardoned by end of Obama Administration: 80% ***

*I didn’t personally vote for the libertarian candidate, but I did trade my vote, resulting in Gary Johnson getting two votes more than he would have had I not voted at all. I’m counting this as at least a vote for Johnson.

**Technically, I am not particularly able to get a ride on a self-driving Uber because I don’t live in Pittsburgh, but I don’t think that’s what I meant. I also didn’t expect any self-driving Uber rides to be available anywhere, so I’m counting it against me.

***Obama still has a few weeks to pardon Snowden, but it’s not looking good

So let’s take a look at how I did by category:

  • Of items I marked as 50% confident, 3 were right and 0 were wrong.
  • Of items I marked as 60% confident, 3 were right and 0 were wrong.
  • Of items I marked as 70% confident, 4 were right and 1 was wrong.
  • Of items I marked as 80% confident, 7 were right and 2 were wrong.
  • Of items I marked as 90% confident, 1 was right and 1 was wrong.
  • Of items I marked as 95% confident, 1 was right and 0 were wrong.
  • Of items I marked as 99% confident, 3 were right and 0 were wrong.

As you can see from this data graphed, I have absolutely no idea what I’m talking about when it comes to predictions.

You’re supposed to be as close to the perfect calibration line as possible. The big problems are that I only had 2 or 3 predictions for the 50%, 60%, and 90% confidence intervals. For example, my slip-up on predicting Uber wouldn’t have self-driving cars this year means I was only 1 for 2 on 90% predictions. Clearly I need to find more things to predict, as I had 5 and 9 predictions for the 70% and 80% confidence levels, which were right about on the mark. Luckily for next year, I have almost double the number of predictions:

Predictions for 2017:

World Events

  1. Trump Approval Rating end of June <50% (Reuters or Gallup): 60%
  2. Trump Approval Rating end of year <50% (Reuters or Gallup): 80%
  3. Trump Approval Rating end of year <45% (Reuters or Gallup): 60%
  4. Trump 2017 Average Approval Rating (Gallup) <50%: 70%
  5. ISIS to still exist as a fighting force in Palmyra, Mosul, or Al-Raqqah: 60%
  6. ISIS to kill < 100 Americans: 80%
  7. US will not get involved in any new major war with death toll of > 100 US soldiers: 60%
  8. No terrorist attack in the USA will kill > 100 people: 90%
  9. France will not vote to leave to the EU: 80%
  10. The UK will trigger Article 50 this year: 70%
  11. The UK will not fully leave the EU this year: 99%
  12. No country will leave the Euro (adopt another currency as their national currency): 80%
  13. S&P 500 2016 >10% growth: 60%
  14. S&P 500 will be between 2000 and 2850: 80% (80% confidence interval)
  15. Unemployment rate December 2017 < 6% : 70%
  16. WTI Crude Oil price > $60 : 70%
  17. Price of Bitcoin > $750: 60%
  18. Price of Bitcoin < $1000: 50%
  19. Price of Bitcoin < $2000: 80%
  20. There will not be another cryptocurrency with market cap above $1B: 80%
  21. There will not be another cryptocurrency with market cap above $500M: 50%
  22. Sentient General AI will not be created this year: 99%
  23. Self-driving cars will not be available this year for general purchase: 90%
  24. Self-driving cars will not be available this year to purchase / legally operate for < $100k: 99%
  25. I will not be able to buy trips on self-driving cars from Uber/Lyft in a location I am living: 80%
  26. I will not be able to buy a trip on a self-driving car from Uber/Lyft without a backup employee in the car anywhere in the US: 90%
  27. Humans will not land on moon by end of 2017: 95%
  28. SpaceX will bring humans to low earth orbit: 50%
  29. SpaceX successfully launches a reused rocket: 60%
  30. No SpaceX rockets explode without launching their payload to orbit: 60%
  31. Actual wall on Mexican border not built: 99%
  32. Some increased spending on immigration through expanding CBP, ICE, or the border fence: 80%
  33. Corporate Tax Rate will be cut to 20% or below: 50%
  34. Obamacare (at least mandate, community pricing, pre-existing conditions) not reversed: 80%
  35. Budget deficit will increase: 90%
  36. Increase in spending or action on Drug War (e.g. raiding marijuana dispensaries, increased spending on DEA, etc): 70%
  37. Some tariffs raised: 90%
  38. The US will not significantly change its relationship to NAFTA: 60%
  39. Federal government institutes some interference with state level legal marijuana: 60%
  40. At least one instance where the executive branch violates a citable civil liberties court case: 70%
  41. Trump administration does not file a lawsuit against any news organization for defamation: 60%
  42. Trump not impeached (also no Trump resignation): 95%

Postlibertarian

  1. Postlibertarian.com to have >15 more blog posts by July 1, 2017: 80%
  2. Postlibertarian.com to have >30 blog posts by end of year: 70%
  3. Postlibertarian.com to have fewer hits than last year (no election): 60%
  4. Postlibertarian Twitter account to have <300 followers: 90%
  5. Postlibertarian Twitter account to have >270 followers: 60%
  6. Postlibertarian Subreddit to have <100 subscribers: 90%

 


Leave a comment on this post’s reddit thread.

The Alternative to Trump

I’ve made a couple posts detailing that Trump’s populist ideology has no real ideas, and the ideas it has are pretty universally terrible. So how do we go about opposing Trump?

After Trump won the nomination, I thought I was going to have to write a big post about picking up the pieces on the right after Trump’s loss. Turns out, Hillary Clinton was a much worse candidate that even I suspected, and now it’s the left that needs to look at themselves. I’ve got some ideas that could help them (and at least one that advances my own agenda).

However, even I have to admit that the reality is not that dire for Democrats politically, nor progressives ideologically. At last count, Hillary was winning the popular vote by 2.5 million. It seems quite possible that if they had nominated someone who was more palatable to independents and moderate Republicans in Michigan, Pennsylvania, and Wisconsin, Democrats would have done fine. No platform overhaul necessary. In fact, had Obama been able to win a 3rd term, I’d bet a lot of money he’d have won it, were he facing Trump.

However, Democrats are doing poorly in most state-level races, including the House. In light of this, and since people are talking about refurbishing left-wing ideas anyway, it’s at least fun to discuss  ways to improve the Democratic Party. Bernie Sanders stated that Democrats have to go beyond identity politics to focus on progressive ideas. I agree with this on its face, but I’m sure what Bernie really means is we should make the welfare state bigger and envelop not just retiree pensions and retiree healthcare, but universal healthcare, childcare, and free college-level education. He also seems to pair this with a strong regulatory state and reduction in some individual rights such as free speech connected to campaign financing. Rather than focusing on groups of people as representatives of ethnicities or genders, I think it’s fair to say Sanders thinks we should focus on wealth and socioeconomic status. In political coalition terms, Sanders wants to focus on revitalizing and expanding the New Deal Coalition, bringing back the white working class voters who supported Trump. This isn’t a crazy idea, but it does seem like trying to fight fire with fire, or rather, populism with populism.

Let’s take a look at a favorite libertarian tool, the Nolan chart:

The Nolan Chart splits the usual left-right spectrum into two separate political spectrums of economic and personal liberty. Theoretically, you could have as many axes as you want, with respective Nolan hypercubes.
The Nolan Chart splits the usual left-right spectrum into two separate political spectra of economic and personal liberty. Theoretically, you could have as many axes as you want, with respective Nolan hypercubes.

Sometimes this chart will be drawn with “Populism” instead of “Authoritarianism” in the bottom quadrant. “Personal freedom” and “economic freedom” are often more intertwined than this chart would like to admit, and both the left and the right can be all over this chart. When Ron Wyden argues against NSA spying and against harsher sentences for drug offenses, he’s definitely high on the personal liberty access on the left. But when Democrat Chuck Schumer supports the Patriot Act, the prohibition of aerial drones, and the banning of Bitcoin, he’s a lot lower on the personal liberty axis. Likewise, Republicans can vary from very libertarian leaning, high up on the right side (Ron Paul) to low down on the right side, ok with regulated markets and curtailing personal freedoms (Donald Trump). The problem with the new Bernie Sanders approach for the Democratic Party is that it challenges Trump for the lower middle of the Nolan chart, meeting him head-on, while ignoring the top middle of the chart. Even if there were enough voters just in that lower quadrant, The Economist points out that recently left-wing parties have struggled with populist victories, losing to right-wing populists in a litany of countries.

Rather than fighting populism with populism, I suggest a flanking maneuver for the left, countering a view of government solving most problems with a view of more personal freedom, more efficient markets, but also a government focused on solving market failures. A tolerant market welfare state, or a neoclassical liberalism.

 

I’m not the only one who has advocated something like this; Scott Alexander has an excellent Something Sort of Like Left-Libertarianism-ist Manifesto. I would really recommend reading his article on this, as the following arguments are just poor restatements of Scott’s more eloquent  points.

Markets convey valuable information and coordinate action across millions of actors with differing preferences. To quote from Hayek’s famous essay, “The Use of Knowledge in Society”:

The economic problem of society is thus not merely a problem of how to allocate “given” resources—if “given” is taken to mean given to a single mind which deliberately solves the problem set by these “data.” It is rather a problem of how to secure the best use of resources known to any of the members of society, for ends whose relative importance only these individuals know. Or, to put it briefly, it is a problem of the utilization of knowledge which is not given to anyone in its totality.

Markets are really good at solving this problem of distributed knowledge. They can then get the most efficient allocation of resources, and even direct future production towards the creation of goods most demanded by consumers.

But markets don’t solve every problem. They don’t solve the “initial” allocation of resources, when some market actors are endowed with few goods or capital. Thus, while it’s important to allow these people specifically to trade what resources they have (likely low-skilled labor hours) in the most lucrative way possible, they still won’t be able to end up with much since they didn’t start with much. In other words, some people aren’t highly skilled and may never be. Despite a nice efficient market, they might end up with few available resources. Markets also don’t solve (by definition) externalities where market transactions harm unseen third parties (pollution is the usual example).

A solution here is to create a welfare system that assists low productivity workers, while leaving as much of the market as untouched as possible. We can thus solve the problem and also continue to take advantage of the distributed knowledge and allocation abilities of markets. To be clear, most welfare programs are pretty good at giving assistance to the poor, but in the United States, they come with far too many market regulations and exceptions. Most of the most popular Bernie Sanders ideas emphatically do not leave the market untouched. His $15 minimum wage advocacy has little empirical support. Rather than punish companies for hiring low-productivity workers, we should be either subsidizing wages for low-income earners, or giving a small basic income. The cost would not then be forced upon companies that hire low-skilled workers (the opposite of what we want), but distributed among society generally (the whole point of the welfare state). The government negotiating for Medicare rates of specific procedures and the exclusive use of government bonds for the Social Security trust fund are two more examples of welfare that shun a market based approach.

Interestingly, this pro-market-and-pro-welfare approach is actually somewhat familiar in Bernie Sanders’ favored Nordic countries. While their budgets are larger than the US, in several measures, their regulatory burden is more favorable and laissez- aire, and some indices also give them stronger contract and property rights than America.

There are other benefits to this low regulation approach too. Specifically, rather than banning things we don’t like, such as the use of coal to produce electricity or drinking alcohol, we simply tax them to disincentivize their use. As Scott states, this leaves us more options. Obviously, there are some benefits to doing things the state wants to ban; otherwise people wouldn’t be doing them. Coal is burned because it’s so cheap. The problem is that its burning has externalities. If the state increases the cost born by those who burn it to better reflect the pollutants it releases, energy from coal could still be used, just not to the same extent. This is a good thing! We should encourage behavior when the benefits exceed the costs. If the state can help create better incentives, individuals will make better choices themselves without blunt bans from the government.

This neoclassical liberal approach also means an opposition to Trump’s (and Bernie’s) protectionism and anti-immigration stances. If workers are concerned about their situation in the information economy, we need to liberalize their education opportunities, or even subsidize low productivity wages. But we can’t respond with trade barriers and stifle technological progress. The defense of classical liberal values, like tolerance, the rule of law, privacy, and freedom of expression, is also fundamental to this political position, especially as all these values all under threat by Trump.

I don’t really expect Democrats or the left generally to take this approach, but perhaps I can convince a few here and there that it would make sense. Caring about what happens to the unfortunate in society is something libertarians don’t always do well, but markets still have a vital part to play in improving society. Ultimately though, over the next four years, libertarians and progressives will have to work together on some issues, such as defending civil liberties. Hopefully, progressives will realize that libertarians are allying with them for the very same reasons they opposed them during the Obama administration, and had they listened then, our problems would not be so dire now.


Comment on the official reddit thread.

Links 2016-12-2

Added the awesome Conor Friedersdorf and Megan McArdle to the Libertarian Web Directory.

First, all the Trump-related links:

I’ve been saying this for a while, but Robby Soave at Reason articulates why the left bears a lot of the blame for Trump due to their aggressive pushing of political correctness.

Slate Star Codex talks about similar problem on crying wolf about Trump.  Even mentioned in Episode 33 of The Fifth Column.

Tyler Cowen on why Trump’s plan to keep jobs in the US is pretty awful.

Nonetheless, also read why Bryan Caplan isn’t freaking out about Trump.

The Nerdwriter, on YouTube, makes the case that Trump is a magician, using the media to distract our attention from where it should be.  Maybe I should stop reading about him so much.

Now, other related political posts not explicitly about Trump:

Megan McArdle had a good piece talking about bridging the gap between the “right-wing media” and the regular “media”. If you want to bring conservatives back into the mainstream, you have to stop politicizing everything and only hiring left-leaning news reporters who only want to cover the local food movement and how evil Walmart is.

Related: Bryan Caplan discusses that if you just talk about how great cohesion is and despair at the political divisions we see, you’ll never get outgroups to come back in, because to them you sound like you’re telling them to conform. You have to actually unilaterally reach out to them and show them respect despite how much you dislike them.

Philosopher Nick Land argues that contrary to the notion that fascism as a societal system has been largely dead since WWII, in fact almost all political philosophies in the world today are largely rooted in fascism, including the major political philosophies of the United States, progressivism and conservatism.

What is the most prominent social science debate happening at Peking University today? The most prestigious university in the still-technically-communist-party-controlled China isn’t about Maoism vs Stalinism, it’s a planned economy vs markets.  

Scott Sumner has a hopeful take on fiscal policy and specifically reducing government budgets.

Here is a terrifying story about the unintended consequences of overcriminalization, and deference to state power. A woman with a previous arrest for prostitution, was picked up and charged with “loitering for the purposes of prostitution”. Loitering is not a criminal activity, but can be applied to anyone standing still. Loitering for the purpose of doing something else is quite speculative. Of course, prostitution itself is already a criminalization of a voluntary transaction, so now anyone who has been arrested for a voluntary interaction other people find distasteful cannot stand anywhere without being accused of a crime. In fact, if cops think women are dressed too lewdly, they can also be arrested for intent to prostitute themselves. Since this woman is relatively poor (thus the loitering for a ride outside of a trailer park), she’s forced to plead guilty to the charges and go to jail for 2 months.  

Related: Adam Ruins Everything this week is about how important prostitution was to settling the American west, and, interestingly, empowering women in that region of the country far before they had similar rights in the east.

Why build higher? This video takes a look at the history of skyscrapers, but also delves into important areas of urbanization and how humanity will live in the future. Cities are more and more important to human civilization, and improving urban areas to exploit efficiencies of concentrated living is one of the most important challenges we face.  

Crash Course has a 10 minute intro video for the philosophy of utilitarianism. Since that’s an important building block for many of the arguments on this blog, I would definitely recommend it.  

Finally, to wrap up the short videos category, Learn Liberty has a great 5 minute video on one of the most fundamental economic concepts: Opportunity Costs. Every choice we make has a hidden cost of what could have been done with those resources and time. Ignoring those opportunity costs can lead to paradoxical ideas like the Broken Window Fallacy.

For the best coverage of the death of the dictator Fidel Castro, this long piece at the Miami Herald is the most comprehensive take available.

Postlibertarian throwback: read about the politics of outrage back in 2014. Unfortunately we have…not fixed our focus on outrage yet. 2017 and the age of Trump isn’t looking so great either.


Comment on the official reddit thread.

The Election Doesn’t Change Trump’s Bad Policies

The Trump Issues

In the Trump election aftermath, many on the left have discussed how best to approach this new challenge. Many have talked about trying to understand the concerns of Trump voters. This is a worthwhile undertaking. The people who voted for Trump have several worries spanning cultural differences, economic hardship, and perhaps even existential fear for the country as a whole. First, let’s go over those concerns.

The first, and perhaps most important concern for Trump voters was that the alternative was Hillary Clinton. This blog had an extensive discussion on Hillary’s shortcoming including her flaunting of the law, her foreign policy, her defense of Obamacare, her tax increases, and her slant towards government power in every sphere. I would argue some of these flaws are also present in Trump, but many Trump voters could at least hope the Trump unknown would deliver something more to their liking than the known failure of a Hillary presidency.

Granting all of Hillary’s problems, why did they think a Trump unknown was worth risking? Broadly, one area we did know where Trump stood was on the culture wars, and for that he was initially hailed as a hero against the left. I think the left has to shoulder a huge part of the blame here, because people have been trying to tell progressives their culture is intolerant for years.  See: Scott Alexander on tribalism and tolerance in 2014, Clarkhat on Gamergate in 2014, this blog last year, another blog, and Robby Soave did a good job summing it up after the election. I don’t think there’s much to add here.

On economic hardship, the more stereotypical Trump supporters (Trump won older voters, rural voters, and uneducated voters) have something to complain about as well. If you want to be depressed, please read this ridiculously long piece called “Unnecessariat “ (or skim this American Conservative piece for some key points). The takeaway is that Trumpland is hurting because it has been economically abandoned, not just culturally isolated. With services dominating the economy, the prospects for those living outside of cities has diminished as well. We are seeing increased suicides, drug addiction, and hopelessness in these areas.

Finally, combine these worries with media that feeds panic about disasters and internet echo chambers, and you get stark existential panic about entirely separate threats.

Cracked had an interesting piece on Trumpism and how we got here, and what caught my eye was the idea of urban culture slowly making its way out to the country. Cracked claims that older, less educated, rural folks saw the abandonment of Christian traditional culture in these hedonistic wonderlands of coastal “liberal” cities and thought there would be dire consequences for the nation. Low and behold, they see: “Chaos…Blacks riot, Muslims set bombs, gays spread AIDS, Mexican cartels behead children, atheists tear down Christmas trees.”

The Trump Solutions

The problem is that many of these perceptions are just wrong. We are healthier, less likely to be murdered, and safer than ever before. Maybe we blame clickbait media, maybe we blame gullible people for believing it, but living in cities just isn’t that scary.

Last year, I met an acquaintance who had grown up in a smaller town in the South, but was now moving to another state near a major urban center. He found out I had grown up in his destination city, and despite having just met 5 minutes prior, he peppered me with bizarre questions about whether I thought it was safe to live there. I assured him that it was a major metropolitan area where millions live and work without a problem every day. He made it seem like he was moving to Afghanistan. Look, I’m sure it was pretty hairy to live in New York/Miami/Chicago/LA in the 80s, but crime rates have collapsed over the last 25 years. The amount of people murdered in the first season of Daredevil in Hell’s Kitchen likely exceeds the total number of murders in all of Manhattan last year. Our perspective is all off. And if we are imagining that law and order is collapsing, our solution is going to vastly over-correct.

That’s part of a bigger point I’ve already made: Trump’s political victory doesn’t mean his supporters have any good ideas about improving the country, or even their own situations. It just means enough people thought there were enough problems for more voters to cast a ballot for Trump over Hillary in Michigan, Wisconsin, and Pennsylvania. For instance, I think there is a real basis for complaining about the intolerant left-wing culture that has grown more bold over the last 10 years. But the Trump response has been his own version of intolerance, just copying the left and doing nothing to improve the situation.

On the economy, Trump’s plan is at best a mixed bag. Experts are mediocre at predicting economic growth, so figuring out the best economic policies to help growth may also be difficult. Trump and his supporters might blame globalism for their woes, but putting tariffs on imports and striving to shut down commerce with some of our largest trade partners will hit the poor the hardest. Price increases on low cost imported products will harm low income earners much more than upper middle class households with savings and easier means of substitution. Maybe in the long run this will spur some industrial investment, but I think it’s just as likely to speed up automation. In 4 years, many economic problems scaring Trump voters could easily be exacerbated.

More to the point, the government can’t reverse the decline of manufacturing jobs in the United States. Short of seizing control of the economy via a 5 year plan, the world has changed. Manufacturing jobs peaked in the early 80s (BLS), and while globalization has accelerated the trend, it didn’t start it. Of course, “globalization” isn’t really an entity either; decisions that changed where firms do business were made by millions of individuals looking at cost-benefit analyses and comparing prices. The government didn’t say “move these factories to Mexico”, the government said “Technology is making it easier to communicate and do business in other countries, so we will reduce taxes and import quotas to make it easier for businesses and shareholders to do things they already want to do”. Trump can’t come back and order companies to make bad business decisions unless he wants a Soviet-style command economy with capital controls.

The United States has such a strong economy due to many factors, including its large, diverse, and skilled working populace, an abundance of natural resources, heavy investment in research and capital, and strong and interconnected financial markets. Our consumer market is the largest in the world, our trade dominates the globe in both goods and services. International economic institutions from the New York Stock Exchange to the World Bank and International Monetary Fund are based in (and often dominated by) the United States.

Trump’s push to cut us off from strong trade ties will certainly harm the American centrality to the global economic system. Obviously, to many Trump fans, this is a bonus, not a problem. But long term decline in American trade would likely be connected to more sluggish growth as native industries are protected from competition; for example, Apple has pushed innovation in the smartphone market since 2007 which radically changed the status quo of what phones could do. It has had ripple effects throughout the economy as the spread of widely accessible powerful mobile computers has changed everything from transportation to social interaction to navigation and even shopping. But we should remember that the smartphone revolution was made possible by cheap global supply chains, and without them, we are likely to see stagnation.

And those older, rural, lesser educated Trump voters? No one is going to want to hire them unless the economy is clicking and demanding more workers. Sluggish growth with no competition bred by protectionist policies won’t help them.

Maybe Trump’s tax cuts and deregulation pushes will jumpstart the economy enough to overcome his bad trade polices. It’s possible, but I’m not betting on it. If it doesn’t work, in four years we will simply have the same economic problems just with tons more debt. That’s a big risk he’s taking. And it’s made more risky by Trump’s plan to expand the police state and start deporting at least two million people  (not to mention increasing military spending from the $500 billion a year we spend already).  The ACLU has gone into detail about the difficulties we face if Trump attempts to carry out his campaign promises. It’s very difficult to deport millions of people without doing away with probable cause; how do you find and arrest only the people here illegally? If they aren’t caught by the police while engaged in crime, then by necessity the police must come to them, requiring sweeps of entire residential areas, stopping people with no probable cause at all. At the very least this is grossly expensive, and more likely it will harass and catch thousands of innocent American citizens in a dragnet. And none of this even touches on registration of Muslims, continued mass surveillance, and use of torture.

In four years if the economy hasn’t improved much, debt has accumulated, and the police state has been vastly expanded, will Trump admit his policies haven’t worked? This seems unlikely as Trump has never really apologized for any stances he’s taken or mistakes he’s made. It seems far more likely that he’ll use this built up police state to harass his political enemies.

If Trump is willing to place trade barriers and dramatically reduce the world-leading $2.4 trillion worth of goods imported, how much will he be willing to use government subsidies to pay companies to “invest” in the United States? Does this sound like government direction of the economy? If things aren’t going well, will he seize more control of the economy?

I should note, I haven’t even brought up Trump’s extensive conflicts of interest, where representing American diplomatic interests may run counter to his profit-seeking ones. I also haven’t mentioned that someone who is extremely thin-skinned will be in charge of the nuclear launch codes. Many of the concerns of Trump voters don’t make much sense, many of the policy solutions of Trump and his voters are bad and would make things worse, and on top of that, Trump is irresponsible, incompetent, authoritarian, and many other things I’ve argued before. Continued opposition to Trump’s policies is vital over the next four years.


Comment on the official reddit thread.