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.

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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


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.


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.


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.


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


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.


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.

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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.

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 embarassing. 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.

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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.

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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.

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Trump, Democracy, and Power

I’m working on a post about the political implications of Trump’s victory, but for now, let’s look at what Trump’s win tells us about democracy and government legitimacy.

I’ve seen some people on the left trying to reach out and understand the concerns of Trump voters. This is absolutely welcome, and in a future post I will talk about which of those concerns make sense, and which don’t. However, if you’re only considering other points of view because you lost an election, you may be thinking about politics and government all wrong. The goal of government policy shouldn’t be to cater to the whims and desires of the people who voted and supported the winning coalition, while crushing the unbelievers under a savage reign of public shaming and thought crime. Unfortunately, it feels like much of the social justice left adopted this mentality, and so we now might be forced under a right-wing government that has countered by taking this same governing strategy to heart. Policy should be about creating the best outcomes we can, which I think largely results from allowing individuals to make as many of their own decisions as possible with minimal government interference. That means allowing for a broad range of activities and types of commerce to occur, but it also means opposing expansion of government power.

Of course, the best way to do that right now is to point out that political victory doesn’t mean Trump supporters have any good ideas about improving the country, or even their own situations. The expansion of government action and government power Trump has promised are still terrible regardless of any democratic outcome.

I’m aware this is harsh, and it’s part of what Trump voters are complaining about when they say coastal elites are ignoring them, but I’m not (and have never) dismissed their concerns as racism and xenophobia; I tried to look at Trump’s policies themselves. The problem is that Trump never met me or anyone else on policy grounds. He has few ideas, and the ones he does have are pretty crappy. Against Trump acknowledged the left had done plenty of bad things, but Trump promised things at least as bad.

Moreover, the left (and maybe even the right) shouldn’t be saying “I live in a democracy, so apparently Trump’s ideas are legitimate because he won an election”. They should be saying “Maybe democracy is dangerous if it legitimizes tyranny, and maybe we should limit the power of the state to reduce the risks democracy poses”. In fact, they probably should have been saying this for the last eight years.

Being skeptical of democracy isn’t so bad. Democracies don’t always come to good solutions to problems. Supposing a majority of voters have elected one candidate over another, it’s several steps of logic to then say that a single rejection of one candidate in an election of dozens of issues then constitutes that the winning candidate’s stance on a particular issues is (A) popular and (B) effective. Add in that Trump did not actually win the popular vote, and, the fact that Arrow’s Impossibility Theorem states that there is no knowable community preference on any issue which had 3 or more possible stances to choose from.  And even if voters could all agree on a single popular issues, there’s no reason their favorite policy would actually work.

What I’m trying to say is that despite whatever concerns Trump voters have, what matters are the actions he takes. The problem is that the last two administrations have massively expanded the executive power of the president and increased regulatory involvement in many areas of the economy. The Department of Defense has compiled a massive database and is spying on American citizens and foreign nationals without warrants. That data is shared with federal law enforcement agencies again without oversight. The president has the power to strip you of your rights and hold you indefinitely if you are investigated in connection to terrorism. He even apparently has the ability to kill you without a trial. Trump has promised further abuses of power, including deportations of millions of people that cannot be done without racial profiling and gross abuses of due process. 

Maybe Trump won’t seize executive authority or scoff at the Constitution at all, and 90% of his campaign promises will turn out to be hyperbole. But I doubt it. Maybe he’ll try to accomplish things and be thwarted by checks from the other branches of government and the Constitution like Madison imagined. I maintain that what matters is policy, and if his policies are not that bad, I’ll be the first to admit I was wrong. But the fact that many are worried anyway indicates that we all understand to some extent or another that we have created an imperial presidency. It’s concerning that over 60 million people voted for a stated authoritarian who has advocated war crimes including killing of terrorists’ families; it’s also concerning that almost 61 million voted for someone who advocated a war in Libya without Congressional approval, who supported and continues to support warrantless spying on Americans, and condoned drone attacks that actually killed families of terrorists. The fact that 60 million votes is enough to make us fear for our rights means our troubles started a long time ago.

Yes, Trump’s presidency will likely be worse than anything we’ve ever seen, but as a state skeptic, it’s helpful when a politician just comes out and says how horrible they are rather than everyone pretending that the Obama and Bush imperial presidencies were normal and acceptable uses of executive authority. It makes the case against state power much more straightforward. Progressives need to realize is that Trump is worse only as a matter of degree; this blog post would have been written had Hillary won on Tuesday, it just wouldn’t have had a president-elect that cared so little about his reputation.


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Picture Credit: Replica Oval Office by George Bush Presidential Library and Museum, Licensed under CC-BY-2.0.

Against Hillary: Government Power and Criminal Justice

This is the fifth and final post in my series opposing Hillary Clinton’s candidacy. See the introduction in Part 1 here. Read my opposition to Trump here. Read why you should mathematically vote for a third party here.

Government Power and Criminal Justice

I could go on critiquing many more topics where progressives and libertarians disagree. I’m not sure that would help, so I’ll conclude with this broad section on government power. The fundamental problem we should all have with Hillary Clinton is that she trusts the government to fix every problem we face. But the government has no competition, is slow to change, is slow to respond, and wields a massive police state. Moreover, she also seems to believe government officials should always be trusted to act in the public interest. This seems to govern her position on her mishandling classified information, on her foreign interventions and wars, on healthcare, on government spending, on our right to know that our government is spying on us, and even on the right for people to publish books and movies critical of candidates near elections.

Let’s go back to some points I made in my Against Trump post. As noted by Conor Friedersdorf, the powers of the president apparently include ordering the execution of American citizens with drone strikes (something it seems Hillary Clinton implicitly approved of), detaining Americans suspected of terrorism indefinitely, and spying on millions of Americans with unconstitutional general warrants. Quoting me from the Trump piece:

The enormous amount of statutes on the books means it’s almost certain average people break laws every single day, and so these law enforcement agencies can always find probable cause to arrest you. Then they can stack up charges to force a plea deal, all at the discretion of prosecutors.  As it stands right now, there’s a strong case that the criminal justice system is biased, slow, and unfair, and that it deprives individuals of their rights. But now imagine Trump in charge of the DEA, FBI, intelligence services, and the military.

I later compare Trump to Nixon. My intention was to show that bad presidents have existed and they did terrible damage. Of course, Nixon and Trump in reality have little in common; Nixon was an unlikeable, calculating, politically successful military interventionist who also expanded the size and scope of the regulatory state and federal government while using his power to cover up his aggressive use of the state to fight his political rivals. In other words, he was literally Hillary Clinton in 2016. Imagine putting Richard Nixon in charge of the government today where he would have access to unprecendented surveillance, secret courts, and undeclared wars. This is what we face in a Clinton presidency.

One of the biggest issues in 2016 has been the way police interact with citizens, especially people of color. The trust Hillary Clinton has in the state is simply incompatible with the reality of police abuses. Libertarians, on the other hand, have been talking about police abuse for quite some time. Some of those ideas have been adopted by Clinton including an opposition to mandatory minimums, a prioritization of violent crime over drug crimes, and better police accountability. But Clinton’s positions are mixed at best: harsher sentences in the 90s that helped create the massive prison population we see today weren’t just introduced for drug possession, but also firearm possession. Clinton hasn’t discussed liberalization of firearm ownership, and in fact has called for the suspension of 2nd amendment rights for people placed on the unaccountable and discriminatory terrorist watch list. Her support for the Patriot Act and NSA spying doesn’t really imply a worldview that wants to reduce the police powers of the state. Indeed, her stances in all sorts of areas from undeclared wars to videogames reflect a fundamental belief in civilian deference to state power. Yet as countless examples have shown, including Eric Garner, Sandra Bland, Tamir Rice, and more, deferring to a powerful police state allows harm to come to innocents.

The more power the state has, the more likely there will be confrontations between actors of the state and citizens, and confrontations where there is a power imbalance leads to abuses. Even if we could end racism today, we would not be solving the problem; police that still abuse their power, just against people of all races equally are still immoral. Whether it’s the justice system broadly, government surveillance, regulatory powers, or foreign interventions Hillary Clinton does not offer a fundamental change from simply trusting in the state to fix the problem. Our military has been involved in trillion dollar middle eastern wars over the past 16 years. The justice system is so broken that prosecutors can force 95% of defendants to accept plea bargains. We are outraged at the power the police are wielding without oversight. Yet we are making the problem worse by putting a reincarnation of Richard Nixon into the White House, after she has already brazenly broken the law and gotten away with it. This is simply the wrong answer.

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Picture Credit: Public Domain Image, from National Archives and Records Administration.

Against Hillary: Fiscal Policy and Taxation

This is the fourth post in my series opposing Hillary Clinton’s candidacy. See the introduction in Part 1 here. Read my opposition to Trump here. Read why you should mathematically vote for a third party here.


I won’t spend a huge amount of time on this section because there’s another fundamental ideological argument here, but I want to emphasize a few key points. One is that government taxation and spending is inherently distortionary in an economic sense. Therefore, we should be biased against government policies that transfer money unless we can definitively show the benefits are significantly larger than the costs. Relatedly, the tax code should be as simple and as non-distortionary as possible. Gary Johnson has a pretty good idea here on replacing the income tax with a similarly progressive consumption tax. Similar tax holes would likely be carved out over time, but throwing out the current system in favor of one that does not discourage income earning, but only spending, would have some clear benefits. This idea is popular among libertarians, progressives, and even Bill Gates. It is not a perfect plan, especially when taking into account transition costs, but the current tax code does not have much going for it: it’s complex and creates bad incentives everywhere. Needless to say, Donald Trump’s fiscal policy may not raise taxes, but excessive government borrowing can have big costs as well, and at some point in the future distortionary taxes will need to pay for all of Trump’s out of control spending ideas.


The second point is that if we assume luck is an inherent part of wealth, then using government as a form of social insurance is pretty reasonable, even from a libertarian standpoint. But most government spending is not focused on giving money to the poor. A huge chunk is spent on the elderly in the form of social security and medicare, even though many are solidly middle class. Taxes for the programs are also fairly regressive. Other major spending categories are overseas military operations, defense spending generally, veterans spending (which we will see more of if Hillary is elected), and interest on the national debt. Together these make up a lot more than 60% of the federal budget. And that’s not even going into the costs of the war on drugs, corporate subsidies, and so on, which are a bit harder to calculate, but are nonetheless real costs which are not remotely focused on helping the poor. The problem is that Hillary isn’t really talking about reforming these areas. If anything, she’s talked about expanding them and introducing new spending areas. Again, this isn’t even mentioning the unknown costs of her future foreign policy blunders.

Free college tuition is really the most egregious. We already live in a world where college graduates are forced to take jobs that they are overqualified for. The reason is partially because government already offers huge subsidies for college tuition; as a result, colleges have little price competition. They just increase the prices, and the state just keeps paying it. Increasing the amount of subsidies in order to fix a high price doesn’t work for tulips (seriously, read it), and it doesn’t work for college. Spending lots of money to educate someone on a subject that is not in demand, whether it’s a B.A. in psychology or skills in coding fortran, is very expensive to society. That cost should be born out by the person learning the skill with no market, not by society. Incentives would then push people to either learn skills that are in demand (so they can pay back the cost of education), or to forego college and begin earning immediately without huge upfront costs. Both of these would be better for society at large. Yes, we should help those with little wealth with government support, but those receiving help should ultimately decide what to do with additional funds that will best help them. The government should not interfere with the relative opportunity cost faced by prospective applicants to college. Reducing, not increasing college subsidies is the only way to control the rising cost of college and fix the overqualification and saturation of college degrees in the job marketplace.

Finally, paying for this with higher taxes on the wealthy is a bit wishful. Firstly, the arithmetic doesn’t quite add up; the New York Times estimates higher taxes would raise only $100 billion to $200 billion depending on how broad and steep the tax increases are. This isn’t enough to cover current annual payments on the national debt. It would likely cover public college tuition today, before additional cost growth and the large influx of students that free tuition would bring. There wouldn’t be much room for a new war in Syria or an expansion of social security. Secondly, federal tax revenues have basically never exceeded 20% of GDP. It’s not that higher taxes wouldn’t raise revenue; they just wouldn’t beyond a certain level. A Clinton presidency would not be as fiscally irresponsible as a Trump presidency, but it is a bit worrisome considering the returns of this spending seem to be to get middle class votes more than to help the poor.

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Picture Credit: Gage Skidmore, licensed under CC BY-SA-2.0

Against Hillary: The Rule of Law

This post is the latest in a series this year covering the 2016 election. In May, I took a look at all candidates that had run for the Democratic and Republican nominations and noted that most were flawed. I restricted much of my analysis to the candidates’ political electability, regardless of my agreement with their ideology. Obviously much of that post focused on the failures of the Republican Party to nominate someone better than Trump, but I noted that already Hillary Clinton was demonstrating some serious popularity issues. In fact, I’m pretty sure her vulnerability (and high likelihood of being the Democratic nominee) was the primary reason for so many Republicans entering the race. That notion has proven correct as the Huffington Post favorability ratings put Hillary at 43% favorable / 54% unfavorable. In comparison at this time of the race, Mitt Romney was about 46% favorable / 48% unfavorable and Obama was 45% favorable / 50% unfavorable. Against an average Republican presidential candidate, I’d bet she’d be losing badly.

But she’s not facing an average Republican, she’s facing Donald Trump, perhaps the worst major party candidate in memory. I’ve gone into extensive detail about the problems with a Trump presidency, and I’ve recommended voting for Gary Johnson (twice), or any third party, if the election isn’t close or you don’t live in a swing state. I define swing state very narrowly as states with a serious chance of their outcome determining the outcome of the election. Indeed, with only a week to go, betting markets have Clinton at over 70% chance to win the election.

However, even if my mathematical arguments make sense to you, if you are a self-identified Democrat or progressive, you might still prefer voting for a mainstream Democrat like Hillary Clinton rather than a third party just because she seems to fit your ideology better; sure, your vote likely won’t count, but perhaps you just don’t see much appeal in the third parties anyway so you might as well state your preference for a candidate you like. This post, at the very least, will lay out the case for why a Clinton presidency would be mediocre, and at best this post will persuade you to vote for Gary Johnson over Hillary Clinton. Again, this implies that there is no real chance of having a decisive vote.

Indeed, it is overwhelmingly likely that Hillary Clinton will be the 45th president of the United States no matter how you vote. While it is nice that Donald Trump will not be president, we must remember that Hillary Clinton’s victory is simply the final act in an election where our political system utterly failed.

One of the reasons I wanted to write Against Trump first was that there are so many faults you can have with Trump without encountering any Fundamental Ideological Disagreements. By Fundamental Ideological Disagreements, I mean that sometimes you encounter people where you don’t have anything close to the same goals in mind due to virtually irreconcilable ideology. A classic example of irreconcilable differences is abortion: some people believe that life begins at conception, and some people believe a fetus only gains rights once it is viable outside the womb. You can’t really get to one place from the other since each has fundamental ideological assumptions about whether an unborn fetus has rights.

Fundamental Ideological Disagreements are part of the reason I favor consequentialism; if we can at least agree on what our goals are, now it’s theoretically just an empirical disagreement on the best way to get there. With Trump, there’s a lot to dislike without considering ideology: he trolls, he flip-flops, he’s unintelligent and incompetent. Regardless of whether we agree with what a perfectly competent Trump would do, it’s apparent, through stupidity or flip-flopping, many of his promises are empty.

Hillary Clinton is not nearly as unknown. She’s done her own share of flip-flopping, but we generally know where she stands on big issues: she favors American military intervention, she favors government involvement and expansion of an expensive welfare state, she favors a regulated economy with higher taxes on the wealthy, and she favors curtailing individual liberties in the name of national security, redistribution, and social justice. To oppose Clinton is to confront these ideological differences which may be impossible to change in a blog post. But there are some critiques that virtually everyone can agree are quite concerning.

The Rule of Law

The biggest issue is the double standard of the law as applied to Hillary Clinton’s mishandling of classified information with her private email server. FBI Director James Comey indicated that because there was no intentional mishandling of information, any case against Clinton would fail despite clear violations of the law. Yet, as Glenn Greenwald points out, this is not how low-level government employees who accidentally mishandle classified information are normally treated. In fact, according to Greenwald, the Obama administration has prosecuted “more individuals under the Espionage Act of 1917 for improperly handling classified information than all previous administrations combined.”

This includes some crazy examples Greenwald lists:

NSA whistleblower Tom Drake, for instance, faced years in prison, and ultimately had his career destroyed, based on the Obama DOJ’s claims that he “mishandled” classified information (it included information that was not formally classified at the time but was retroactively decreed to be such). Less than two weeks ago, “a Naval reservist was convicted and sentenced for mishandling classified military materials” despite no “evidence he intended to distribute them.” Last year, a Naval officer was convicted of mishandling classified information also in the absence of any intent to distribute it.

The idea that the FBI couldn’t get a case together when Clinton insecurely stored documents far more sensitive than those mishandled by low level government workers is absurd. Of course, I’m not suggesting that Clinton necessarily did something immoral; it’s also true that the American government vastly over-classifies everything and is far too zealous about prosecuting people who mishandle information. So called “classified” documents may be classified simply because bureaucrats are playing it safe and covering everything as broadly as possible to avoid any problems. They may even be classified when national security is not in danger but rather because it is simply politically expedient to do so.

But it’s clear that Clinton broke the law and was not prosecuted due to who she is. It’s also true that she repeatedly lied (or didn’t know) about breaking these laws. The stories about her include brazen lifting of NSA classified intelligence sent to unsecured email servers simply because she didn’t want to access email like a regular employee. Against a real opponent, this would be damning.

Moreover, as Scott Shackford at Reason points out, Hillary herself has specifically criticized people who released classified information, even if that information significantly changed the national debate on a topic and led to courts ruling programs unconstitutional:

We’re also talking about a woman who thinks Edward Snowden didn’t go through “proper channels” before leaking information about mass domestic surveillance to the public and should face legal consequences, though the whistleblowing channels she refers to probably wouldn’t have applied in Snowden’s situation. Despite deliberately not managing communications appropriately to make sure everything goes through “proper channels” with correct level of security, she wants to be treated differently.

Again, given Hillary will likely be the president anyway, there are plenty of alternative candidates who have never mishandled classified information that voters can and should cast their ballot for. Voting to state you disapprove of a president using this double standard seems like a worthy undertaking in its own right. At the very least, it is hugely troubling that the likely-president has already avoided the law due to political stature. The fact that our political system gave us a choice between an unpopular, incompetent, flip-flopping authoritarian and someone who couldn’t even follow the laws on classified information as a cabinet secretary is a huge indictment on the system. And any system that allows a president to win when they’ve already demonstrated the law doesn’t apply to them is dangerous. A vote for Hillary is an approval of that system.

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Picture Credit: Marc Nozell, Hillary Clinton in Nashua, NH licensed under CC-BY-2.0