Electoral Reform Fantasies

It’s been a particularly divisive…month? year? presidency?  Maybe you could even argue this last decade or so has been increasingly polarizing. Last election cycle specifically was unlike anything we’ve seen in the modern political era in terms of highly unpopular candidates running against each other, just look at the numbers:

Trump won with the lowest popular vote percentage of any president since Bill Clinton in 1992, when Ross Perot ran as a third party candidate getting 19% of the vote. In fact, Trump won the lowest percentage of any president in US history when no third party got more than 5% of the vote. Actually, we can go further; every case in which a US president was elected with less than Trump’s 46.1% had a third party getting over 8% of the vote that year. Except 2016.

Thus, we should first acknowledge that political frustration with political parties is nothing new in American politics. The only difference is that this time, there are no other parties to turn to.

This is a problem. Organizations acquire rules and absorb ideas over time. Sometimes those ideas are toxic to the organization, and it is out-competed. I’m mostly imagining the creative destruction of the market, but the same logic can apply to religions, non-profits, and political parties. However, the Republican and Democratic parties have constructed excellent barriers to entry, helped along by American electoral rules. Perhaps these barriers to entry have always existed, but they seem particularly effective at present.

I believe this lack of competition has resulted in two parties that are having difficulty providing a platform for new political ideas or approaches. Without competitive pressures, there is a lack of popular outlet and political advocacy, resulting in frustration. With only two political parties to work with, the idea of a political dichotomy seems inescapable, with every single culture battle melding together to become one gargantuan struggle between two fiercely divided tribes.

This is by no means the only problem we face: sluggish postindustrial economic growth, cost disease, shrinking populations, etc, are all issues. However, it’s quite possible our outdated political system may be stifling any solutions. Thus, I’d like to provide some ideas to fix the way we run our democracy.

Primaries

Presidential primaries seem to be the toughest to fix, but primaries themselves would become much less important with other reforms. Primaries today tend to favor more extremist candidates, while general elections (and, by definition, most people) favor more centrist ones.

One way to solve this is with an open primary, which some states have. California even has an “open blanket” primary, where the top two vote-getters in the primary are on the ballot in the general election, regardless of party. Of course, California does not use such a system for president (Donald Trump would have likely not been on the ballot if they had). There are drawbacks here, as theoretically several centrist candidates could split the “centrist” vote and leave two extremists running in the general election.

One possible way to help improve the presidential primaries might be to rotate the order in which states are the “first” primary. Iowa has often been the first state, but New Hampshire actually has a law that it must be the first presidential primary by a week (Iowa has caucuses, so New Hampshire has decided those don’t count). New Hampshire isn’t a great bellwether: going back to 1980, in election years where a candidate won a competitive primary and then won the presidency (i.e. not 2012, 2004, 1996, 1984 when a sitting president was re-elected), New Hampshire got Donald Trump in 2016, George H. W. Bush in 1988, and Ronald Reagan in 1980. It wrongly selected Hillary Clinton over Obama in 2008, John McCain over George W. Bush in 2000, and Paul Tsongas over Bill Clinton in 1992.

Iowa isn’t any better. It selected Obama in 2008 and George W. Bush in 2000. And it wrongly selected Ted Cruz over Donald Trump in 2016, Tom Harkin over Bill Clinton in 1992 (Harkin was from Iowa, but Paul Tsongas came in second, not Clinton), Bob Dole over George H. W. Bush in 1988, and George H. W. Bush over Reagan in 1980.

So in our first two primary states over the last 30+ years are 3/6 and 2/6 respectively when picking a president from a competitive field. Not great.

There’s some merit to simply holding a national primary all at once. The argument against it is that this may bias the primary system against discovering good lesser known candidates who can campaign in small states more easily than a national stage. However, there’s no evidence indicating such a system of candidate discovery functions with the small states at present. Maybe we need other states that better represent a microcosm of the country. Maybe such states don’t exist.

Ballot Access

Did you wonder why there wasn’t a well-known centrist Republican candidate running as a third party in the race last year? It seemed to be the perfect storm. A significant minority of Republicans were not a fan of the party’s nominee; the party’s previous nominee had called out Trump in an aggressive speech earlier in the year, and the Democrats had nominated a fairly progressive, well known candidate that most conservatives disliked.

Well, it turns out there was one, Evan McMullin, but he was only on the ballot in 11 states, accounting for 84 possible electoral votes.  Why? Because it costs hundreds of thousands of dollars to get onto the ballot in most states. The Libertarian Party candidate Gary Johnson was the only third party candidate on the ballot in all 50 states. In fact, he was the first third party nominee to be on all 50 ballots since 1996. Johnson did better than previous Libertarian Party candidates, and so the LP will not have to spend as much money for ballot access in the coming cycle…yet they are still looking to raise $130,000 this year just for ballot access costs.

This needs to change. There can be no serious competition to the current parties without fixing the ballot access problem.

Take a look at the Wikipedia article on the topic for a good overview. One problem is that major political parties are often exempted from ballot access requirements entirely. Other times, parties that get over a certain percentage of the vote are not required to gather signatures. The signatures are often rejected, so in reality the signature requirements are really 20-30% higher than actually stated. Ohio is an interesting example, as it requires a candidate to file in March, before they are actually nominated at their party’s convention. To get around this, the LP of Ohio filed a placeholder candidate in 2016, and then changed it to Gary Johnson later in the year. Of course, he had to file as an independent candidate since Ohio’s independent requirements are much less burdensome than trying to get the Libertarian Party be recognized as a state political party.

A possible solution would be to at least even the playing field by having a federal law forcing all qualification rules to apply to all parties running for federal office, including the Republican and Democratic parties. This would require them to waste resources on gathering signatures as well. Of course, the major parties could handle large numbers of signatures more easily since they have more resources available, but it still might be difficult enough to push them to reduce the total number of signatures to more practical levels.

More direct reductions in the ballot access requirements would be great as well, but perhaps not as directives from the federal government for the sake of federalism. Of course, none of this will happen, as there are no third party members in office at the national level, and thus no interest in reforming third party access at the state level.

House of Representatives – Single Transferable Vote

This one is totally crazy I know. It would definitely require a change in law, as it’s currently against the rules to have more than one representative from a district. However, I don’t suspect it would be unconstitutional, as each state creates their own districts and runs their own elections.

An STV system is unambiguously better than our current system. Single Transferable Vote is a voting system where you rank several candidates in a multi-member district. The candidates that reach a threshold of support (something like 33% for a three seat district, 25% for a four seat district, etc) are elected. If not enough candidates reach the threshold, unpopular candidates are eliminated with voters’ next choices receiving their votes instead, until all seats are filled. This helps achieve a proportional representation while maintaining local legislators. Currently all Representatives are elected in single member plurality elections, also known as First Past The Post (FPTP). For an easily digestible explanation of STV, watch CGP Grey’s video on the system.

STV systems do well when there are many seats available in a single district. Ireland has used as many as six seats in a single district, Tasmania has used as many as seven. Given the US population of 320 million, the average congressman represents over 700,000 people, with the median being even higher. However, many Americans live in cities much larger than 700,000, and so there are many cities that could support single citywide districts with five or ten congressional seats filled by STV. These could much better reflect the diverse viewpoints of those living in cities. Of course, cities wouldn’t be the only ones who benefit from this, as gerrymandering can also be done to disenfranchise rural voters depending on who’s drawing the boundaries.

Gerrymandering is itself much harder with STV multi-member districts. This itself is an indication that an STV system is better than what we have now. Even if STV is poorly implemented with districts that only have three or four seats, it would be a vast improvement in representation and political competition than what we have today.

This reform is certainly the most important reform for third parties. I don’t think third parties will solve all our problems; other countries have plenty of third parties with little to show. But it’s certainly a necessary step in providing alternatives to the duopoly people are obviously very sick of. Moreover, even if third parties aren’t super successful, the threat of competition will force the two major parties to react. We need a diversity of opinions and new ideas, and without third parties, everything has to be filtered through a party system with vested interests and previous baggage.

President – Approval Voting

The electoral college system is supposed to select a candidate from a wide range of possible candidates, with the college of electors itself imagined as acting as a bulwark against the excesses of democracy. This didn’t really pan out the way the founders of the United States might have hoped. Instead, several elections have resulted in presidents being elected despite other candidates actually receiving a plurality of the popular vote.

Those were:

  • 1824, when Andrew Jackson won 41% of the vote in a split election that was thrown to the House of Representatives since no one had an electoral college majority. The House picked John Quincy Adams, who lost in 1828 to Andrew Jackson. This one is less concerning because there was no clear majority, so while Jackson didn’t like it, the system “worked”.
  • 1876, when Samuel Tilden handily won an outright majority of the popular vote, and probably won the electoral college, but a “bipartisan” commission gave 15 “disputed” electoral votes to Rutherford Hayes instead. I’m still bitter.
  • 1888, when sitting President Grover Cleveland won a close popular vote victory, but lost in  the electoral college to Benjamin Harrison. Cleveland would win the rematch (both popular vote and electoral college) in 1892.
  • 2000, when Al Gore won a plurality of the vote, but lost Florida by a few hundred votes, and so George W. Bush became president.
  • 2016, when Hillary Clinton won a plurality of the popular vote, but Donald Trump won the electoral college.

If we set aside 1824, which I think is reasonable, we have 4 elections out of 58 total in American history in which the electoral college has selected against the popular vote winner, despite only two major candidates in those elections. This is an error rate of 6.9%.

But how to fix this? There have been several times when the electoral college was helpful in sorting out a multi-candidate election.  In 1860, Lincoln won a plurality with only 39.8% of the vote, but the electoral college gave him a majority. From a voting system perspective, this may not be seen as a victory, as Lincoln’s election was so divisive, it precipitated southern secession. However, in 1912, Woodrow Wilson won the electoral college with only 41.8% of the vote in a three way race. 1968 and 1992 may also be considered elections where the electoral college helped establish a winner when the plurality winner only had vote totals in the low 40s.

Moreover, any debate about the electoral college, especially after this most recent election must necessarily have political implications. Nonetheless, I believe I have a system that is strictly better than our current system, preserving any usefulness it has. The proposal is as follows.

Ballots for president will ask two questions, one asking the voter to select all candidates which they will be ok with being president (approval voting) and one asking voters to select their single favorite candidate (first past the post/ our current voting system).

The president will be chosen based on who receives the highest percentage in the approval voting ballots, as long as the percent total is above a threshold. Here I’m recommending 55%. In the case of no candidate receiving above 55% of the vote, the system simply defaults back to the electoral college system using the second, first past the post / favorite candidate vote.

I suspect this would encourage much more positive campaigns, as candidates try to attract as many voters as possible rather than scare voters away from voting from their opponents. It would also make third party campaigns much more useful, as there is less strategic voting with approval voting. If a popular centrist party had a candidate with broad appeal across the spectrum, they could get votes without causing right or left wing voters to fear their votes are “wasted”. Moreover any candidate that wins the approval vote would have a strong mandate with a super-majority of voters supporting them. This is what the electoral college was supposed to bring us, a wide base of support for the president, but this system will guarantee it outright.

In the worst case scenario, if I am wrong about these predictions, the system is simply what we have right now, today. There is no way for it to do worse than our current system since it’s fall back is our current system. In this way, it is also conservative and gradual in its reform, in ways other voting systems are not.

Conclusion

These reforms are likely long shots, but I think it’s undeniable that our current system of government is deeply flawed. These are just my current best ideas, so if you read this and have some voting systems that you think would be more politically palatable or mathematically accurate, be sure to let me know on Twitter, Reddit, or email.

 


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Picture Credit: Vote here, vote aqui. Erik Hersman. Licensed under CC BY 2.0.

Twitter Distractions

The U.S. military launched drone strikes on Libya on Friday, the first in Libya since January.  Trump has yet to mention these airstrikes as he’s been too busy fighting with professional athletes about how they protest.  If I’m counting correctly, there have been six Middle Eastern countries Trump has authorized military strikes in despite no authorization from Congress (and seven if you include Somalia): Libya, Syria, Yemen, Iraq, Afghanistan, Pakistan. Not to mention Trump has praised Saudi Arabia, a state that directly funds Wahhabism and an oppressive war in Yemen that does nothing to reduce radicalization.

Important criticisms of Hillary Clinton last year included her foundation receiving millions of dollars of support from the human rights disaster Kingdom of Saudi Arabia. But I’m not sure which is worse: taking bad people’s money or actively praising them. In fact, in what meaningful way is Trump’s Middle Eastern policy different from Clinton’s? Clinton was for a two state solution, while Trump didn’t seem to know what that meant–is that it?

Trump’s foreign policy has been pretty incompetent in other areas outside the Middle East. He’s failed to provide appointments for many ambassador positions, including South Korea. Speaking of which, Trump said he would control North Korea, but the DPRK has conducted more missile tests during his presidency (that’s 7 months) than any presidency in history. Even by using his own stated (terrible) goals of renegotiating NAFTA, tearing up the Iran nuclear deal, and reducing sanctions on Russia, he has failed to do what he said he would. In the case of Russia sanctions, this came at the hands of his own party overruling him in Congress.

Trump is a loud, robust failure in foreign policy. And rather than spend any energy actually trying to end military involvements like he said he would, or even do routine things like appoint ambassadors, he is igniting culture wars on Twitter. I think he prefers these to actual policy because there are no metrics to success when engaging in a cultural flame war online. It’s just “our tribe” vs “their tribe”, and no one can win because we’re not actually discussing anything. I think there are nuances to be had in this week’s particular flare up with the NFL and the national anthem, but they’re not worth teasing out because it’s so easy to get bogged down in an emotional fight.

So rather than engage with Trump’s culture war cage match this week, I think it’s more productive to point out that there are real issues he’s supposed to be dealing with, and he’s failing miserably. We’ve been at war for 16 years now. Soon, recruits will be traveling to battlefields that Americans have been fighting in since before these soldiers were born. But Trump would rather tweet about football players protesting.

 


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Trump Junior and Russia

This weeks’ Fifth Column Podcast had an excellent discussion of Donald Trump Jr. and his attempt to get opposition research from the Russian government.

I have been pretty skeptical that the Trump administration and campaign actually did anything wrong with regard to Russia. I thought Trump was a poor candidate because he seemed very comfortable with authoritarians like Putin, which together with many positions he’s taken made me concerned about authoritarian policies he’d implement. Some of that concern has been well founded (e.g. appointing Jeff Sessions, removing an FBI Director he didn’t like), but in other places it has not. Trump seems to be bothered by criticism and a free press, but it’s clear the press is as robust and independent as ever.

I also thought Trump surrounded himself with really bad people, some of them with obvious terrible connections to the Russian government, like Paul Manafort, Roger Stone, and Michael Flynn (all of whom were fired). Again, this points to his friendliness with authoritarians and perhaps his incompetence with whom he surrounds himself with, not that he’s had contact with the Russian government itself.

I thought the intense media scrutiny over Russia wouldn’t provide anything, and it was dragging on for far too long. I thought the worst thing we would find would be that Trump fired FBI Director Comey for investigating his ties to Russia, not for any connections to Russia itself. But I was wrong. The New York Times reporting on this was so impressive that Donald Trump Jr., the target of the Times‘ article actually felt it would be better if he published these emails himself!

Thus, I’m literally typing these word for word from Trump Jr.’s twitter account. He got an email saying “…and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump”

Trump Jr’s response: “…if it’s what you say I love it especially later in the summer”.

I don’t know if this is illegal, as Trump Jr. has some amorphous relationship with the Trump campaign and allegedly isn’t involved in the administration at all, despite regularly going on TV to defend the administration. However, it’s at the very least unpatriotic and seems pretty unethical. If agents of a foreign government are reaching out to you to attack political opponents, your response should be to forward it to the FBI, not to set up a meeting as soon as possible. Trump was elected to “drain the swamp”.  I thought that meant that many legislators are too close to special interests or are lobbied by large companies to pass favorable legislation. This is certainly problematic, but actively trying to get help from foreign governments to get into office seems at least as bad. Donald Trump Jr. is a swamp monster if ever there was such a thing.

Additionally, just like Hillary Clinton lied constantly about her email scandal (she didn’t have a private server; ok she did but there was nothing classified; ok it was classified but it was secure…), it turns out Trump Jr. and many other campaign members just straight up lied about having pursued Russian opposition research. Trump Jr. stated in a March interview that he had met people that were Russian but not meetings “…that were set up. None that I can think of at the moment. And certainly none that I was representing the campaign in any way, shape or form.” Here’s a full timeline, it’s pretty damning. This is the undermining of democracy that I thought Trump supporters claimed he was there to fight.

I wish all presidents were subjected to this sort of scrutiny. We had wall to wall media coverage for months with very few real stories until this week. The Obama administration crushed leakers and transparency, blocking FISA requests in an unprecedented manner. They brought government secrecy to a new level, while waging wars in several middle eastern countries without Congressional approval. Trump has only been in office for 6 months, and so it’s not hard to argue that the Obama administration was much worse in terms of doing illegal things, murdering civilians, spying on Americans and journalists, etc. Yet, media coverage has been much more aggressive on Trump (at least from the left, while the right-leaning media has often been at least as sycophantic as anything we saw under Obama on the left).  I guess it’s better late than never, but the media needs to be far more adversarial in the future long after Trump is gone.

 

Unpopular Net Neutrality Opinions

Net neutrality has benefits, and regulation has a role in ensuring its continuing existence, but there are several problems inherent in FCC telecom policy and the debate about net neutrality.

History

The new FCC chair (and Trump appointee) Ajit Pai has proposed reclassifying internet service providers as not “common carriers” under Title II of the 1934 Communications Act, thus reducing the available regulatory options for the FCC.

Net neutrality is the concept that all internet traffic should be treated identically by Internet Service Providers (like cable companies) or governments regardless of content, protocol, users, destination, sources, etc. It means that loading a webpage from this blog would not cost you more than loading a webpage from a large company, assuming the content size is similar.

The FCC has broadly promoted net neutrality in the past. Around 2008, the FCC blocked Comcast from slowing the speed of its users who were utilizing BitTorrent to download videos. Comcast appealed and won, with an appellate court ruling that the FCC did not have the anciliatory jurisdiction over Comcast’s network (Comcast v FCC). The FCC next tried to issue an Open Internet Order in 2010, but in Verizon v FCC, that order was largely vacated, as the same appellate court ruled that the FCC could not regulate ISPs unless it classified them as common carriers under Title II of the 1934 Communications Act. In 2015, the FCC classified ISPs as common carriers under Title II and enforced net neutrality rules.

Problems with Title II

A big problem with Title II is that it was written in 1934, 21 years before Tim Berners-Lee, the inventor of the world wide web, was born. In fact, the vast majority of Title II is so useless that when Tom Wheeler proposed ISPs be classified as common carrier, he said that of the 61 Title II sections, the FCC would forebear from applying the entire title except six sections (201, 202, 208, 222, 254, and 255).

One question I cannot answer without more specific legal expertise is whether Wheeler’s rule only allows the application of those sections, or if in the future the FCC can unilaterally decide (without a vote) to apply other sections of Title II, now that ISPs are seen as common carriers. For example, Section 224 of Title II relates to pole attachments. Can the future FCC regulate broadband providers’ pole attachments if they wanted to under Wheeler’s rule? Even if they cannot, they can certainly write a new rule that applies all of Title II with a full vote of the commission.

Perhaps a better solution would be for Congress to pass a new law allowing the FCC to regulate net neutrality, but bar the FCC from regulating ISPs under Title II otherwise. This would narrow the FCC’s focus officially to what consumers care about. Of course, that would require nuanced Congressional action which is likely impossible given the many competing interests in both houses.

Is Title II regulation overwhelming and innovation killing? Ajit Pai has argued so. The New York Times editorial board disagrees, but their argument seems quite lacking.  They dismiss Pai’s claim that broadband capital investment declined since Title II classification as “alternative facts”, but a simple Google search reveals why they found numbers that conflict with Pai. The source, the Free State Foundation, calculated a trend line of broadband capital expenditures since 2003. They calculated the expected expenditures after the Title II regulation as compared with the actual. So while capital expenditures actually increased after the regulation, they increased less than the trend line indicates they should have.

Is it misleading for Pai to say capital expenditures decreased? Yes, or at the very least it’s imprecise. Is it misleading for Title II proponents to say there has been no effect? Probably, although trend lines are tricky. Additionally, the Times argues that the pattern of increased consolidation in the telecoms industry is a symptom of a healthy economic sector. This is a non sequitur. Mergers and acquisitions could be symptoms of profitable or unprofitable companies, depending on who is buying who, but ultimately to me it seems more indicative that economies of scale exist. One possible explanation for recent increase in economies of scale could be an increased regulatory burden. I don’t know if that’s the case, but to suggest that Charter’s purchase of Time Warner is a symptom of a healthy telecoms sector is the Times projecting their own political views onto market actions.

Problems with Net Neutrality

Ajit Pai has argued (in this Reason interview) that ISPs were not favoring some internet traffic over others. This seems incorrect. Comcast v. FCC was specifically about Comcast reducing the speed of some types of traffic. John Oliver points out that Google Wallet was not allowed to function on phones on the networks of AT&T, Verizon, and Sprint since it competed with a joint electronic wallet venture of those companies. On the other hand, Google Wallet still out-competed the networks’ own payment system despite being banned on those platforms. Consumer response was so positive on other networks that the consumers demanded it on AT&T and Verizon. Eventually the joint venture folded and got absorbed by Google Wallet/Android Pay.

Moreover, a few phone networks have run afoul of net neutrality rules by giving consumers free data for certain services, e.g. T-Mobile allowing streaming music to not count against a customers’ data cap. If the service provided by the content producer is so profitable that it can afford to pay for its own bandwidth, is it wrong to give that bandwidth to customers free of charge?

The economics here is complicated. In a perfectly competitive market, content producers could only charge for the marginal cost of producing more content while ISPs could only charge the marginal cost of additional bandwidth. Consumers would pay each company for their respective consumption of their products.

But we don’t have a competitive market, either for content producers (only HBO has Game of Thrones, only Netflix has Stranger Things) and especially not for ISPs. Since cable ISPs are state granted monopolies, there is a solid argument for regulating them, as they have leverage over content producers. That argument does disappear though when there is competition, such as in the case of wireless broadband.

It is also worth pointing out that the importance of “neutrality” towards content is only narrowly valid. For example, bandwidth at certain times is more valuable. The Economist has suggested electric power be charged at different rates when used at different times. Similar arguments could be used for internet usage. It is also undeniable that some internet traffic really is more important, and consumers would be willing to pay more to have their bank notifications or business calls come through faster than YouTube videos, which they might be ok with allowing to buffer. Certainly we would want consumers making this decision and not ISPs, especially when there is little ISP competition for most end users. Additionally, such prioritization could be done by software on the consumer/LAN side of the router, and ISPs should likely just be dumb pipes that deliver what we tell them to.

Finally, we should be cautious about locking in rules even if they make sense today. Markets change over time, and there is a possibility that past rules will restrict innovation in the future. Since competition itself can defend against bad ISP behavior (perhaps even better than the FCC), having the FCC focus on increasing competition seems at least as vital as net neutrality. Interestingly, this is what Ajit Pai has argued for (see Reason interview above).

Conclusion

Today it seems likely that a policy of net neutrality by cable ISPs is more beneficial than not. It also seems likely that to protect that idea today, some form of regulation is needed on cable companies that are state granted monopolies in a given area. Such regulation is not as clearly necessary in wireless providers, and we should always be reviewing the importance of FCC regulations in order to avoid a curtailment of innovation. Additionally, any regulation should come from new Congressional legislation, not a law written 80 years ago. However, the benefits of net neutrality should not be taken as given. Variations in the consumer value of content priority as well as bandwidth scarcity during peak hours are perfectly acceptable ways to prioritize internet traffic. The problem arises when monopoly ISPs are doing the prioritizing rather than consumers.

 


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Flynn and the Deep State

I was listening to the most recent Reason podcast with Nick Gillespie interviewing Eli Lake about Michael Flynn’s ouster as National Security Adviser. I had a couple thoughts on it.

  1. Flynn talking to the Russians about sanctions as lame duck Obama imposes sanctions. This just isn’t that scary to me. Maybe it’s a violation of the Logan Act, but maybe that’s another reason the Logan Act is dumb, not a reason Flynn is bad.
  2. Flynn lying to Mike Pence about what was discussed. This seems pretty bad. However, they must have had transcripts of the conversations, so who knew what and when? Did the President know they had discussed sanctions when Pence told the press they had not? Did Pence know? Flynn took the fall, but he may not have been the real problem. Certainly at some point the President found out and waited until the story was public before sacking Flynn.
  3. Intelligence agencies using information they gathered while spying to conduct political activity and attack political enemies. Really, really bad. This is basically the worst case scenario for how mass surveillance can be misused. Yes, in this case, the spying was done on a line most people would know is tapped, but these intelligence agencies are operating without oversight. Sure, it was nice of them to leak information that Trump was keeping from the public, but what’s to stop them from leaking information on the personal activities of political enemies of the FBI, NSA, and others? Was their interest in the public good or their own political objectives? It seems that a better system where whistleblowers could reach out to (as an example) members of Congress without retribution would be much better, assuring only information relevant to public discourse is released.

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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

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.


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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.

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.


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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.


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