Law

Biden and Trump on Policy

Earlier this year I put together a list of most important policies that the U.S. federal government could implement which are actually discussed by candidates. The list takes into account impact both broad and deep. Also as part of my election year discussions, I’ve covered issues with our current electoral system and then, given those problems, whether it makes sense to spend time researching and voting in elections where you’re only one of many thousands or millions of voters. I conclude that in close elections where there are large differences between the major party candidates, it often makes sense to vote for one of the two candidates.

This post will take a look at this year’s presidential candidates based on their policies. I’m putting aside non-policy issues, like competence, corruption, and impact on democratic norms as I intend to cover them in my next blog post. I also think a policy-specific approach is useful to cut through tribal identities and focus on actual impacts in the real world. Extending the discussion from my last essay, I will be comparing Trump and Biden to see if there are large expected differences in their policy. As stated in that post, swing state voters should probably vote for one of these candidates since their expected value of voting would be high.

This post will be aimed slightly right of center since my policy analysis shows Trump doing very poorly compared to Biden. Based on purely policy grounds, I think swing state voters should vote for Biden, even if they are conservative. I will be taking inspiration from my previous post about important policies. If you want more background on why I think these policies are most important, I suggest skimming it first.

Great Power Relations

This is a newer issue that I wanted to focus on after reading The Precipice and its discussion of existential risk. I recommend that post, but in summary: an existential event is uniquely terrible because not only are there no humans left on earth, but any future human civilization ceases to exist. We are doing very little today to assess these risks or to plan and coordinate how we might deal with existential risks. Toby Ord estimates a 1 in 6 chance of human extinction this century. Even if that’s high, Metaculus suggests a 2% risk which is still completely intolerable when discussing the future of humanity.

Presidential politics isn’t really discussing existential risk directly, but the presidency has an outsized impact on great power relations, particularly between the U.S., China, and Russia, and catastrophic relations between them could significantly heighten existential risk. Indeed Toby Ord specifically discusses great power relations as a major risk factor in his book, and Trump’s own Defense Department notes the heightened nuclear landscape we find ourselves in their 2018 Nuclear Posture Review (Brookings Institute discussion). China and the U.S. have essentially incompatible views of liberalism, freedom, and human rights, and the world is better off with an America that promotes those ideas and thwarts China’s authoritarian ideology without resulting in dangerous tensions.

Ultimately, Joe Biden represents a pretty standard American foreign policy when it comes to dealing with China and Russia: working within the broad liberal world order to promote democracy, markets, and human rights. For example, he has committed to extending the New START treaty with Russia that limits the numbers of nuclear warheads each country can have. Donald Trump, on the other hand, is erratic, dismissive of allies, pointedly materialistic, unconcerned with human rights, and has no long term strategy. This has not yielded a particularly less threatening or less risky world.

On calls with foreign leaders, Trump seems unprepared and more focused on his own accomplishments rather than on specific policy objectives. As China continues to rise in global importance, Trump has spent a lot of his time alienating liberal allies, and waging a trade war with the EU. This has resulted in European leaders, like Emmanuel Macron, noting that America is no longer a reliable ally against rising authoritarian regimes. Pew Research surveyed citizens of 13 developed countries and found lower confidence in Donald Trump to do the right thing than Xi Jinping or Vladimir Putin. Regardless of truth, perception that the U.S. cannot be relied on will lead to a more dangerous world and worse geopolitical outcomes as allies are forced to make do without us.

Conventional wisdom might suggest Trump was especially tough on China, but in reality he emphasized the exact wrong points at the expense of actual geopolitical power. He started a trade war, harming the U.S., which ultimately resulted in extracting Chinese promises to purchase additional American exports. While undertaking these trade negotiations, Trump refrained from criticizing China’s curtailing of the rights of seven and a half million residents of Hong Kong, and allegedly even encouraged Xi Jinping to construct Uyghur re-education camps. Chinese negotiators have stated they prefer Trump’s reelection because his goals are so transparently materialistic, and those goals are in areas where the CCP can compromise, unlike other American administrations’ focus on human rights. Trump also abandoned the Trans-Pacific Partnership, a Pacific based broad trade agreement meant to specifically improve trading relations between the U.S. and major Chinese trading partners, isolating China. Biden is also not great on trade, but has emphasized that he will push China on human rights, not soybean purchases.

I’ve also mentioned in the past that a huge advantage the U.S. has over China is our ability to take in new immigrants and turn them into Americans, and this is doubly true for skilled Chinese immigrants who often attend American universities. Yet the Trump administration has attacked legal immigration (even more so during the pandemic), making it harder for America to exercise an important asset in any long term disagreements with China.

Comparatively, Joe Biden is simply not that extreme. He’s been a fairly middle-of-the-road Democrat since the Bronze Age. Of course, that does means he’s voted for the Iraq War and was part of the Obama administrations’ intervention in Libya, but Donald Trump also supported the Iraq War, although he only wanted to go into Libya “if we take the oil” (?). Donald Trump has notably strengthened relationships with Israel, but Israel has little sway over China and Russia. Meanwhile, traditional important allies have been shunned.

Donald Trump is dangerous. A cold war with China is not inevitable, and a military arms race with modern technology, AI, and advanced genetics added on top of nuclear weapons is a recipe for absolute disaster. Even a small percentage increase in this risk through mismanagement could be worth millions of lives. The U.S. needs to work with our allies to confront China where necessary and work with the Chinese government to improve transparency and understanding between our two nations, while promoting human rights. Being President of the United States should perfectly position someone to make the case for freedom, free markets, and democracy against an authoritarian regime, but Trump has failed to do so, and his bad policy here should disqualify conservatives from backing him.

COVID-19 and Catastrophic Risk

This is an expansion of risk assessment from the Great Power Relations section and from the discussion in May. Catastrophic risk management is underfunded and underprioritized. We should be preparing for the next pandemic, the next earthquake, and so on. Neither candidate has really called for comprehensive congressional action on establishing better risk management, so let’s focus on COVID-19, which remains a key issue.

Donald Trump emphasized his private sector CEO skills as a key asset contrasting himself with the political establishment, and his approach to governing has radically differed from prior presidents. Therefore, when a crisis arose that required management and leadership skills, I think it’s fair to expect Donald Trump to outperform the average. His administration did not:

The U.S. has worse per capita deaths than a wide cross section of developed countries including Italy, France, and the broad EU. Germany, Canada, and Japan have rates several times lower. The U.S. rate is similar to the U.K. but is on a much higher trajectory, similar to Mexico. At best, we’re average, at worst, we are the most advanced country to still have out of control cases.

Trump revamped his National Security Council, including removing several people who were part of pandemic preparedness, altering the pandemic response policy set up under Obama. John Bolton claimed this was a cost-saving measure and allowed for better implementation of policy. Whatever the case, there’s no one to blame except Trump; he reorganized his bureaucracy in the way he wanted, and this was the policy result we got. He is also ultimately in charge of the FDA and CDC and as we discussed in April, those agencies had colossal failures. Moreover, Trump publicly discussed how COVID was not a problem, saying in February the number of cases “within a couple of days is going to be down to close to zero.” Meanwhile, he was telling reporter Carl Bernstein that this virus was extremely serious and deadly in February, and that he had purposefully played it down to avoid a panic. Regardless of morality, this is simply bad policy and cost American lives.

Trump should absolutely get credit for shutting down travel from China earlier than many people wanted. However, instead of acknowledging that any policy could only delay and not prevent a full outbreak, Trump then spent all of February downplaying the virus like it wasn’t a threat. Instead, given his apparent understanding of the challenge, he should have been issuing government guarantees to purchase masks, creating guidelines for how to reduce spread, encouraging indoor sporting events and concerts to consider cancelling, and more. We know much more about this virus now than we did in March. Delaying the peak from April to June or July could have saved literally thousands of lives.

Even after all this, as cases climbed in the south in the summer, Trump maintained that things were not getting worse, and seemed to make fun of people wearing masks. He even held an indoor rally in the middle of the summer.

As of September 28, the CDC estimates 208,000 – 274,000 excess deaths in the U.S. since February 1, with Metaculus estimating between 220,000 and 360,000 U.S. deaths from COVID this year. This is an unmitigated catastrophe. Not every death can be attributed to Trump’s policies, but we have plenty of evidence that his policies could be considerably better. Other developed countries have death rates a fraction of ours, and Trump has constantly made poor decisions, downplayed the virus compared to the flu, encouraged supporters not to wear masks. At this point, even small policy shifts that reduced the death toll by 10% would have saved 20,000 lives. Conservatives must hold the president accountable for failing to protect American lives.

Congressional vs Executive Power

The functionality of the U.S. government as a system for creating and executing policy affects every other policy. In particular is the glaring problems of congressional mismanagement and executive overreach. Unfortunately, both Trump and Biden have poor records, although Trump may be worse.

Conservatives ought to be concerned about the power of the executive and the reduced role Congress has played in policy-making. Moving away from a consensus building model in Congress to a winner-take-all super executive elected every four years to do anything they want is a bad idea for many reasons. For one this increases the stakes at every election and thus increased polarization. It also means more power concentrated more centrally, which conservatives should be quite skeptical of, and at least many were under Obama. And finally, there are specific things that conservatives want the government to do, like maintain a strong national defense. If we continue to pile responsibilities on the President without involving Congress or actual legislation, then our national defense relies solely on the whims of one person, who you might not trust.

I’ve criticized the Obama administration significantly on executive overreach, and Joe Biden was part of that administration. Obama invented the concept of unauthorized drone wars, complete with secret kill lists, including American citizens. Yet, Gene Healy details how Trump has essentially expanded on Obama’s work in every way, including civilian casualties, all under the guise of the 2001 Authorization of Use of Military Force against the perpetrators of 9/11, even nine years after Osama Bin Laden’s death. He also bombed Syria under a separate claim of pure executive war powers which has no constitutional basis, and this year unilaterally targeted a member of the Iranian government (and a bad person) without any congressional authority. This is an unprecedented use of presidential authority to wage war, and blatant disregard of the constitution. In an absolutely insane reversal, Trump vetoed the war powers resolution passed by congress to reign in his authority. No constitutional conservative can defend this action.

Healy does note that many of the more aggressive uses of Trump’s executive power can’t be categorized as “new” power grabs; Congress had largely ceded those powers to the president even if no other president had actually used them. For example, the Supreme Court upheld a later iteration of Trump’s travel ban (although earlier ones were ruled unconstitutional), and although “there’s ample ground for disputing the Court’s decision”, Congress allowed the president to interpret national security powers quite broadly.

However, on trade, Trump clearly expanded executive authority by lying about Canadian steel imports being a national security threat. This broad interpretation of the law was again unprecedented and means that tariff levels are likely solely controllable by the president, which is an absurd constitutional farce; Congress should have the sole ability to pass tax law. Trump also declared a national emergency in order to fund his border wall after Congress repeatedly refused to allocate money (partially struck down in court). Trump needed to lead on these issues, make broad appeals to the political center, and put pressure on Congress — which Republicans controlled for two years! Instead, he failed and fell back on executive orders which fly in the face of conservative small government beliefs.

For his part, Biden has not offered to fund a border wall through executive authority, so I guess point to him. On the other hand, Biden indicated he thought FEMA should be leveraged (and presumably a national emergency declared) to fund K-12 schools due to coronavirus challenges. Again, to be consistent, school funding from the federal government really ought to come from Congress, not executive authority.

Alright, now let’s touch on impeachment. If you want my full thoughts, read this post here. In summary, regardless of legality, Trump held up Congressionally authorized funds for political purposes, trying to get dirt on his enemies. From the perspective of concerns about executive power, this is wrong, and conservatives should be terrified of progressives getting into office and doing exactly what Trump did. We need to deescalate using the state as a political weapon; Trump is not deescalating.

When asked about them, Biden has repudiated some of the powers that Trump has seized, and has criticized Trump for taking them. I’m pretty skeptical here. Obama was loose with his executive authority, and Biden was in the room when that happened. Presidential power seems to just stack, so I’d be surprised if Biden really pulled back on authority after what Trump has done.

Of course, no one is talking about what I actually wrote about in May, which was a resurgent Congress, not just a presidency that maybe didn’t quite expand executive authority as much as before. So I think overall the most important long term affects on congressional and executive power are worse with Trump, but they’re not night and day. Something like Trump gets an F and Biden gets a D.

Liberalizing Immigration

Conservatives and I may be far apart on this issue, but I think there is some common ground. The United States has perhaps the longest and most well known history of immigration of any nation on earth, and we all agree some immigration will continue to occur. Given that immigration will continue, we can also agree that an improved system is needed; current immigration rules favor family migration instead of merit and skill. We should change our immigration system to focus more on skilled immigrants, or on retaining students who pay to be educated at the best institutions and then seek to work in the most technologically advanced and dynamic large economy in the world.

Improving our immigration system to be more merit based would be a huge boon to our free market system, to our national security, to our global influence, and of course, would result in more Americans. We want the smartest people in the world to move here and innovate on the cutting edge. If we shut our doors, those people will go to other countries, and we will lose a massive advantage we have over places like China, which, as self declared ethno-states, simply cannot attract diverse talent from across the world.

Yet Donald Trump has slashed legal immigration and made it significantly harder for skilled immigrants to enter the country, or even apply for green cards. Both green card and temporary visa applications decreased 17% each between 2016 and 2019 while rules for granting green cards were narrowed. He even banned any new H-1B visas, which focus on high skilled, high earning immigrants (who are great for innovation) for the rest of this year through executive order. Given pandemic related issues are likely to continue into next year, I wouldn’t be surprised if this continued past December.

Given these extraordinary actions, particularly during the pandemic, I would estimate a Trump second term could see a million fewer legal immigrants than a Biden term. This would have long term negative effects on the U.S. economy, not to mention on those immigrants who literally want to be Americans. Trump has also shown no ability to work with Congress on reforming the immigration system, instead working through executive unilateral action.

Biden has planned to reverse most of Trump’s immigration policies. I’ve emphasized the horrific impact on high skilled immigration, but Biden focuses on more liberal talking points, particularly about children of illegal immigrants and refugees. Trump has absolutely crushed the number of refugees the U.S. has taken, thwarting a long standing Cold War era policy. While conservatives may be skeptical of the benefits of refugees (recent data shows they contribute positively to the economy), the geopolitical benefits of being a destination for refugees are clearly all positive. No refugee is picking Russia over the U.S., for example. Unfortunately, Trump has crippled that rhetorical win.

Finally on illegal immigration, I think it’s undeniable that Trump is harder on illegal immigration than Biden would be. However, I must stress that concerns about illegal immigration are often overblown by conservatives. Although caution is warranted, it’s likely that illegal immigrants are less likely to be criminals than native born Americans. Moreover, Trump has focused on things like building a border wall (which he claimed Mexico would pay for) which the OIG found did not utilize a “sound, well-documented methodology” for where the wall would actually be built. Also, many illegal immigrants cross the border at regular checkpoints and simply overstay their visa. Additionally, the administration spent lots of effort noticeably separating young children from their parents at the border rather than on improving the infrastructure in place for immigration courts, which would actually improve the rate at which the government could deport immigrants.

Trump’s policy of harsher, haphazard (and quite frankly idiotic) illegal immigration enforcement at the cost of harming legal immigration and thwarting the American economy’s ability to integrate foreign skilled labor is simply not worth the trade off.

Housing Policy

Deregulating housing policy, especially in “blue” cities like New York and San Francisco is a key measure needed to help grow the American economy. Housing is one of the largest expenses most Americans have, yet it wasn’t always the case. Restrictive zoning has made housing exceedingly unaffordable, and conservatives ought to defend the right of property owners to do what they want on their own property. Trump actually supported deregulation ideas early on in his presidency, and then this year abruptly switched tactics to favor stronger regulation. This is anti-free market and anti economic growth. These large cities have made it harder to build new housing, which causes housing costs to rise, homelessness to increase, and the young and poor to be priced out of good opportunities. Mobility is down across the country, companies are struggling to attract employees to these high cost areas, and many are leaving. Trump is supporting this.

Network effects mean more concentrated, dense cities are much better. For example, recreating the networks that made Silicon Valley in other places is quite difficult, but as regulations make it harder to live in the Bay Area, we are forced to rebuild the aspects of the Bay Area in other places, which wastes time and energy. The same applies to every expensive U.S. city, including Boston, DC, LA, and Miami. The costs involved are astronomical, amounting to tens of trillions of dollars in lost economic productivity over years.

Biden’s housing policy is actually remarkably thoughtful and deregulatory. He proposes improving the already existing federal rental housing assistance for low income families so that all who qualify can obtain it (right now it gives out money to families until a set amount is given out instead of to all who qualify). Then he pairs that with requirements on federal housing money where municipalities must reduce zoning rules that block new housing. Obviously it’s difficult to know to what extent these policies will be exactly implemented, but if a policy even close to what Biden has proposed were to be passed, it would be a solid boon to economic growth. Moreover, it stands a good chance as it’s moderate and compromising where Trump’s housing policy.…isn’t.

Additional Issues

These issues are either where the candidates differ little, or conservatives don’t often prioritize so I’ve kept them short. Nonetheless, Biden retains an edge on these issues.

Climate Change

Many conservatives are skeptical of climate change. I found a view articulated by Russ Roberts, host of EconTalk, to be illuminating. Like nuclear war or pandemics, climate change is a risk with unknown probability. Rather than binary choice of preparing for it or not, our climate policy should weight the various catastrophic effects with the probabilities. Even if conservatives find the most dire climate predictions unlikely, some action is likely warranted under standard economic theory; negative externalities like pollution ought to be taxed. And as we’ve seen this year, it’s bad policy to shirk preparations until the catastrophe is already upon you.

Carbon taxes with offsetting tax cuts seem pretty straightforward. The Paris Climate agreement also seemed like an easy win, with countries setting their own targets. Trump’s withdrawal from this agreement seems to involve no policy calculation whatsoever since the agreement wasn’t binding anyway.

Biden’s plan is a bit aggressive for my take. It goes beyond taxing externalities and into specific government spending. Of course, Donald Trump has spent boatloads of money and would likely continue that trend. Biden spending money on green energy doesn’t seem any worse than Trump spending money on…everything. Donald Trump’s plan to do nothing about climate change seems more negative.

Fed Independence

This hasn’t turned out to be much of an issue as the Fed has been extremely active this year and we have yet to see inflation rise. Nonetheless, Donald Trump’s continued insistence that the Fed cut interest rates even as the economy was well below 5% unemployment was clearly political rather than based on any actual economic theory. This should be condemned as bad policy. Central banking should remain independent and not subject to the whims of populist rulers unless you want to be Venezuela.

Trade

Trade can have large positive impacts on the world, although trade barriers had been pretty low. The highest impact policies would be to use trade to improve relations with liberal countries and tie economic success of the U.S. to a broad liberal coalition to counter China. This is what the TPP and TTIP were, both abandoned by Trump. This is bad, free market conservatives should oppose Trump here, but Biden is not particularly free trade either.

Criminal Justice and the War on Drugs

I listed this as a large and important issue in May. However, the extent to which Trump and Biden differ on drug legalization is small. Both have expressed some interest in decriminalizing marijuana. I’m slightly more inclined to believe Biden as he has stayed with the median of the democratic party, which has largely embraced the issue, meanwhile Trump has been president for four years and done little. In overall criminal justice, democrats have as slight edge. Biden has expressed moderate views in the face of radical segments of his party, calling for reform, but also opposing calls to defund the police. Trump’s rhetoric has been rather aggressively anti-reform, but his actual policy actions seem to be small.

Counterpoints

Taxes

Joe Biden wants higher taxes than Trump. I’m against this. But I remain more positive on Biden than on Trump because of the relative weight of issue impacts. Joe Biden is not suggesting a systemic reinvention of taxation where billionaires are banned, but rather a higher level of taxation than before. I don’t know the exact details, but I would guess this would cost the American economy hundreds of billions, possibly a trillion dollars over four years. That’s pretty bad, but in a moment I’ll do a cost-benefit analysis and see how it compares.

Healthcare

I think conservatives have a strong case that Trump is better than Biden on healthcare policy, given conservative policy preferences. However, the differences are small. Trump had the opportunity to overhaul the healthcare system with a united Republican government in 2017. He provided no leadership and accomplished nothing except the repeal of the individual mandate on people who did not purchase insurance; that’s fine, but the problems in American healthcare are systemic and remain.

Joe Biden would not institute the aggressive Medicare-for-all plans of Bernie Sanders, but instead wants to create a public option. This is not a free market approach, but could actually be a good starting point to disentangle healthcare from employment. A Republican compromise that added a public option for people to buy while also reducing the mandates on what coverage employers have to provide to employees could get more people covered while also reducing reliance on employment for healthcare (which never made any sense anyway and distorts the labor market). Nonetheless, Trump could obviously try and make headway on such a system without the public option and without Biden as president, but he hasn’t. He’s mostly ignored this issue for several years.

Overall, for conservatives, I think the options are either doing nothing with a currently broken system, or see slightly worse reforms that tend to go in the wrong direction, but won’t be the end of the world. Compared to the vast differences in foreign policy, COVID-19 management, immigration, and housing policy, this just doesn’t make a dent on the enormous lead Biden has on Trump.

Justices

This is likely Trump’s biggest strength compared to Biden, however, there are some mitigating circumstances. The major one is that there are no conservative justices poised to retire soon. Clarence Thomas is 72, but many justices retire after 80. Another is that Supreme Court justices aren’t nearly as partisan as other members of the government. Many cases are decided unanimously, and many justices commonly rule against their “party” to uphold precedent. When justices do split, it’s not always clear what the lines will be. Gorsuch and Sotomayor are both strong proponents of 4th Amendment protections despite being appointed by different parties. Anthony Kennedy, despite being appointed by Reagan, was part of the majority in Kelo v New London. This ruled that state governments could seize private property and give it to private developers, which, and I can’t emphasize this enough, was outrageous. 45 states eventually passed legislation banning Kelo-like eminent domain seizures.

Which brings up another point: Congress can make laws. Remember all the debate about the Supreme Court ruling whether the President could implement his immigration bans in 2017? None of that would have mattered if Congress had simply clarified the law, and Republicans held both chambers! The level of intensity we have dedicated to Supreme Court appointments is encouraged by Congress’ inaction. We can either respond by pushing harder on court appointments, or we can respond by focusing on Congress!

Finally, judicial issues that often animate the Right aren’t always as clearly dependent on judicial makeup as we think. The rate of abortions per woman or per live birth has been steadily dropping since the early 1980s regardless of court makeup, presidential party, or Congress.

Yes, appointing good justices matters, and Neil Gorsuch is an excellent justice! But we overemphasize the importance in Supreme Court nominations, and compared to the other issues that are costing thousands of American lives, this issue isn’t enough for Trump.

The Big Picture

When it comes down to it, Biden’s tax policy is not what I want, but it’s not going to have a lasting impact on the economy. Future Republican presidents can come in and fix marginal tax rates. Trump’s housing policy will cause long term harm relative to Biden’s. The reduction in cost of living for Americans if we can properly regulate construction of new homes in cities far outweighs any tax cut and brings in network effects on American cities. Cities are the currency of the economy. To see how behind we are, look at Tokyo where in 2018 more housing units were added than in New York, Boston, Houston, and Los Angeles combined. Trump wants that trend to continue, Biden doesn’t.

Add in Trump’s growth-crushing legal immigration policy, and the choice is even more stark.

Healthcare is another area where I don’t endorse Biden’s policy. But as stated, Trump has essentially nothing to offer here despite being president for four years. From a conservative perspective, at worst, Biden could implement a public option. Note however, this leaves private insurance completely intact. There is simply not a systemic risk conservatives should worry about. U.S. healthcare already has tons of government interventions and increasing government spending in healthcare 20% isn’t good, but it’s not going to be the end of America. It will put a strain on federal government finances, but Trump has consistently demonstrated that he does not care about that issue at all.

On the other hand, Trump’s actual policy when it comes to an actual pandemic has literally resulted in 200,000 dead Americans. Again, not all of this is on Trump, but it seems plausible that his downplaying of the virus, his bungling of agency responses, and his actual rallies during the pandemic has resulted in avoidable deaths. We cannot risk another catastrophe.

Finally, there’s the question of justices. To me this seems most comparable to the long term future concerns from the Greater Power Relations section. Both issues are concerning because of their impact on the trajectory of the long term future, but one is simply much higher stakes than the other. How the U.S. manages our relationship with China determines the course of human history in this century. If we screw it up badly, millions of lives are on the line. On the other hand, if Biden is elected, he might replace Stephen Breyer with another liberal leaning justice, and as stated previously, the overall impact here is smaller than most conservatives make it out to be.

I’ve detailed the importance of how we manage geopolitics and the dangers inherent on the global stage today as they impact the long term future. Arms races are extraordinarily dangerous, and in the future humanity’s weapons will only get more powerful. Trump has not managed geopolitics well. When the COVID-19 catastrophe hit, he was again subpar and his policy was not up the task of protecting Americans. Add in his poor economic policy on housing and immigration, throw in even a fleeting concern about climate change, and the evidence against Trump’s policies in favor of Biden’s is overwhelming.

Of course, I haven’t even got to some of the most devastating critiques of Trump, since I specifically tried to avoid discussions outside of policy. However, next post, I do want to cover, if it’s even possible, all of the Trump administration’s vast corruption, gross incompetence, authoritarian acts, and his divisive and polarizing approach to politics. I think much of this “extracurricular” activity matters a great deal even though some Trump supporters may brush it aside as trolling or just politics. But even if I’m wrong, Trump’s policy record is terrible enough on its own.

A Note on the LP Candidate

I didn’t want to take too much away from the more outcome oriented discussion of the Trump and Biden, one of whom is going to win the November election. However, as I noted in my last post, many readers will not be voting in a swing state, and so may be interested in the Libertarian Party candidate Jo Jorgensen.

Her policies do reasonably well on my list of issues (not very surprising on a blog about libertarianism and politics), and since non-swing state voters have essentially no chance to impact the election, libertarian leaning voters could cast their ballot for someone they actually like without worrying about electing the worse major party candidate. Very briefly, she hasn’t impressed on the issues of great power relations and catastrophic risks, two important issues. These tend not be libertarian strengths, so that makes sense, although I maintain they are key to the long term future of the world and the U.S.

On executive power, immigration, trade, criminal justice, and taxes, Jorgensen is reiterating the standard LP positions, which are generally pretty good as far as this libertarian leaning blog is concerned. I am surprised by her lack of discussion of housing deregulation (at least I couldn’t find anything) given it’s such a key issue, as standard libertarian positions should be positive here. On healthcare, I would take more incremental steps than she would. Overall, if you’re libertarian leaning and you don’t live in a swing state, I think voting for Jorgensen or Biden are defensible positions. If you want to learn more about Jorgensen’s positions, check out her ISideWith page and website.

Picture credit: Boeing 787-10 rollout with President Trump by Ryan Johnson licensed under CC BY-SA 2.0.

Pitching Conservatives on Ditching the Police State

During Mao’s Cultural Revolution of the 1960s, the Red Guards were a radical student-formed paramilitary organization. Inspired by the push to recreate a new communist China and destroy the “Four Olds”, the Red Guards targeted anyone deemed sympathetic to intellectual or bourgeois ideas. Red Guard tactics quickly devolved into property damage, violence, and torture. Thousands were murdered. The Red Guards were both condoned and condemned by the central government, but they were unable to be controlled. The movement in some cases spiraled into a civil insurrection that was eventually defeated by the army in 1968. Lawlessness, destruction of private property, disregard for human life–clearly, conservatives and I agree that the terror campaign of the Red Guards was a moral abomination. But I have a question for conservatives:

Were the Red Guards bad because of their ideology, or because of their violence?

Well, what if we kept the ideology, but got rid of the violence? Apparently, the “Party for Socialism and Liberation” is an American political party that advocates communism. Their positions (perhaps unsurprisingly) are rather odious, but as far as I can tell, they are not actively going around the country murdering small business owners for owning capital. This is clearly morally superior to the Red Guards.

What about the reverse? What if there were paramilitary organizations in the United States operating outside the law, but they happened to not be communists? What would their moral standing be? They wouldn’t target people holding onto traditional values, like the Red Guards did, but that would not make citizens feel better that hundreds of people were being murdered.

American police forces are Red Guards without communism.

Too harsh? Let’s take a look into this phenomenon where we’ll find outrageous situation after situation. In 2011, cops killed a former marine with no criminal record, Jose Guerena, while his wife and children were hiding in a closet from the unidentified intruders. Guerena, while armed, never removed his safety from the gun. Naturally, he was hit over 20 times by police. No evidence was found in his home of any illegal activity. The warrant was served suspecting that Guerena was selling marijuana. At the time medical cannabis was legal in Arizona, but someone selling it without a license? Better have a no-knock raid. Police settled out of court for civil damages, and a County Deputy is quoted saying ” the officers performed that day in accordance with their training and nationally recognized standards”.

In 2013, three off-duty police officers working as security guards in a Frederick County, Maryland movie theater were asked to remove a patron who was attempting to see a second showing of a movie without paying. The customer, Ethan Saylor, was 26 years old and had Down Syndrome. The officers refused the help of his aide, arrested Saylor, and in the process, fractured his larynx, resulting in his death from asphyxiation. A grand jury found no wrongdoing, and I could find no citation indicating the officers had lost their job. The family settled for $1.9 million (the judge did decline to extend qualified immunity for the officers).

In 2015, police destroyed a Colorado man’s home in pursuit of a shoplifter armed with a handgun. When I say destroyed, I mean “… the tactical team bombarded the building with high-caliber rifles, chemical agents, flash-bang grenades, remote-controlled robots, armored vehicles, and breaching rams”. The house was condemned afterwards leaving Leo Lech homeless. The city compensated him with $5000. He took the city to court and an appeals court ruled in 2019 that he was entitled to no compensation, as the police were acting within their police power, not taking items as part of an investigation.

I could go on and on: a homeless person beaten to death by officers, Massachusetts state police using military helicopters to spot single marijuana plants, a retired unarmed Sunday School Teacher shot four times in her car (cop lied on his report, was convicted of manslaughter, served two years), but there was one final story that stayed with me.

In May 2014, one night just past 2 AM, police in full SWAT gear served a no-knock warrant in a small Georgia town. A roommate of an informant they had never used before had apparently bought methamphetamine at the house earlier in the day. Ignoring the minivan parked in front with the car seat in it and the kid sized play pool, police assumed no children were present in the house despite no actual surveillance having been conducted. Their target, it turned out, wasn’t present and when he was apprehended later in the morning, he was not armed. Nonetheless, they easily obtained a no-knock warrant on the flimsiest of information. Police broke into the house and threw a flashbang grenade inside where no less than four children under the age of ten were sleeping. It landed in the playpen of the youngest, a 19 month old baby, and exploded. The police found no contraband or illegal items, but the infant was put into a medically induced coma. A grand jury declined to indict the deputy who obtained that warrant (naturally), and the county paid out a multi-million dollar out of court settlement.

American police have been a threat to freedom for a long time and in many forms. Violent no-knock raids on unsuspecting families, drug enforcement that both fails to stop drug use while also stacking up bodies, executions of unarmed and nonthreatening citizens because they don’t obey police orders, burning infants, the stories sound unbelievable. They are clearly an out of control, unaccountable paramilitary force.

Let’s talk about the recent protests, the catalyst for this post. Left leaning protesters have focused on police abuses’ connection to racism. I stated earlier that American police are Red Guards without the communism. Leftists are extending that argument; instead of Red Guards murdering people for the Cultural Revolution, protesters point out that American police are murdering people due to systemic racism. John Oliver details this argument here. Libertarian critiques of the police state have tended to categorize the ideology of the police in terms of authoritarianism, or opposition to personal liberty; hence the focus on the enforcement of drug laws that infringe on individual autonomy.

Naturally, libertarians emphasize a narrative where police abuses can be counteracted by libertarian ideology while progressives emphasize an alternative narrative that can be solved by social justice. If you are a conservative, you are likely to be suspicious of these critiques as they seem self-serving. Nonetheless, both critiques have a solid basis: Black Americans are killed at a disproportionate rate, and many unnecessary deaths clearly occur when serving drug warrants on citizens who have done nothing violent. Moreover, compared to the Red Guards, American police are not nearly as ideologically cohesive, yet they remain a powerful and unaccountable force as we’ve seen. This creates a dangerous situation where many ideologies and interest groups have an incentive to influence the police for their own ends.

But let’s recall what we stated earlier. Are unaccountable paramilitary groups bad because of their ideology or their violence? I argue, it’s their violence.

And we’ve seen from the previous examples, American police are remarkably violent. But those were just anecdotes. Here is part of a table of countries, and highlighted in blue is the rate of police killings per 10 million people. The United States at 46.6 is surrounded by renowned criminal justice systems like Iraq and the Democratic Republic of the Congo and trails standout nations like Iran.

This is bad.

We don’t actually know the amount of people killed by the police in the U.S. because the government doesn’t require police departments to track that data. The data linked in the Wikipedia article is from the Fatal Encounters database, which suggests about 1800 people killed every year by American police. The Washington Post database focuses only on police shootings and indicates around 1000 people are shot to death by the police each year.

To drive the point home, let’s first consider developed countries. The United States is by far the worst developed country in terms of police killings per capita, but the distant second place is Canada (which is so far up on the table, I couldn’t include it on the screengrab). Canadian police kill around 10 people per 10 million population compared to America’s 46.6–nearly a five fold decrease. In fact, American police are significantly outperformed by those of Pakistan, a country where military coups are commonplace, and which only had its first peaceful transition between elected governments in 2013.

The Washington Post database suggests about 25% of those killed by police are Black, which is disproportionately high for their percentage of the U.S. population. But for the sake of argument, let’s pretend that we could wave a magic wand and prevent all Black killings by the American police. Even if we did that, our rate of police killings would remain 350% of the next highest developed country. And to be clear, Canada is the second worst developed country we have data on, most others are much better.

I want to reiterate that last point: American police killings are not 350% of Canada’s total police killings, but 250% higher deaths per capita even if there were no more Black victims of police violence.

In fact, even if this hypothetical scenario of drastically reduced police killings, the rate of American police violence would remain much worse than a country like Egypt’s. In 2018, Human Rights Watch wrote of the Egyptian election:

Since President Abdel Fattah al-Sisi secured a second term in a largely unfree and unfair presidential election in March, his security forces have escalated a campaign of intimidation, violence, and arrests against political opponents, civil society activists, and many others who have simply voiced mild criticism of the government.

This is the country that has a significantly less deadly police force than us. This is disgraceful.

So if you’re a conservative, and you feel left-wing (or libertarian!) activists have a differing ideology than you, you’re probably right. But I think you may have much more in common on this issue that you might initially believe. The question we must agree on isn’t “which ideology should an unaccountable paramilitary force within our borders have?”, the question is “do we want unaccountable paramilitary organizations murdering hundreds of citizens a year?”

If think you might have some common ground with reformists, here are some simple ways to make the police more accountable:

Get your congressional representatives to sign on to Justin Amash’s bill to end qualified immunity or Rand Paul’s bill to end no-knock raids
Push your local representatives to pass the 8 Can’t Wait police reforms to make police more accountable
Consider reforming or busting police unions, which are the single most powerful interest group that has opposed police reform for decades

Observations on Impeachment

Impeachment is a highly political process. I want to walk through the impeachment process and trial and try to articulate my own thinking.

The Transcript

Let’s start with the phone call on July 26th. Trump released a transcript of himself asking the head of state of another country to investigate a conspiracy theory that Ukraine has a copy of a server of Hilary Clinton’s emails. The intelligence community believes this is Russian propaganda and National Security Council official Fiona Hill testified to this under oath. Trump also brought up a political rival during an official call with the head of state of another country, and asked President Zelensky to investigate them.

There’s a lot to discuss here. Apart from the intelligence community’s views of the Ukrainian server conspiracy theory, I think it reflects poorly on Trump’s…mental state? priorities? that he is still trying to investigate theories around Hillary Clinton’s emails four years after his own election, which he won! It doesn’t seem like he is prioritizing implementation of American policy, but rather stuck in the irrelevant past.

Also of note, Trump brings up Viktor Shokin, who, as far as I can tell was widely believed to be corrupt, yet Trump seems to think his dismissal was unfair. There’s also the discussion of Hunter Biden, Joe Biden’s son. Hunter seems to be a screw up and a bad human being. Yet, as Senator Romney pointed out, there was no evidence that the Bidens’ actions were criminal although certainly morally questionable. In particular, Joe Biden had a conflict of interest, but I don’t think anyone can argue Viktor Shokin should have remained in office…except Trump.

Moreover, it doesn’t seem to be a matter of national security or indeed foreign policy that Joe Biden be investigated by the Ukrainian government even if he were directly implicated in a crime. Instead, I would expect the FBI would just investigate him for wrongdoing. That seems much more effective if you wanted to get to the bottom of it. Moreover, looking at the testimony presented by Trump’s defense, it doesn’t seem like a crime was committed.

Yes, when making a public announcement about Ukrainian prosecutors, the Vice President should acknowledge all conflicts of interest. He didn’t, and that seems bad. While it isn’t a violation of a particular law (the respective law would have to be pretty specific), it reflects pretty poorly. In fact, there are many parallels to Trump’s actions. I’d go so far as to say that it’s inconsistent for one to believe that Joe Biden’s actions are wrong while saying Trump’s are not. They are almost identical.

Both are accused of undertaking policy decisions that they claim are in the national interest while appearing to have personal conflicts. The differences are that (1) Trump is currently in office, while Biden is not, and (2) the House of Representatives seems like the correct place to investigate whether Trump had a conflict of interest, while the Ukrainian government absolutely should not be in charge of investigating Biden. And it definitely shouldn’t be incentivized with U.S. taxpayer funded military aid; it should be done by a law enforcement agency. Finally, I would be remiss not to mention that Trump has an even closer parallel with the Hunter Biden situation: his own children, in particular his son-in-law who was given a prominent position in the west wing. If Hunter Biden’s actions in Ukraine are worth using the office of presidency in such a way, what are we to make of Trump’s own nepotism?

Returning to the call, the Trump defense team pointed out that no quid pro quo was mentioned in this phone call. This is true, and also seems irrelevant. The use of the office of the president to encourage foreign governments to investigate political rivals and conspiracy theories is most certainly an abuse of office, regardless of whether a quid pro quo occurred. Whether this is grounds for removal from office we can address later.

Witnesses and Evidence

More circumstantial evidence for this being a political abuse of office include testimony from several witnesses. Most interesting is from Gordon Sondland who stated that a quid pro quo did exist offering the President of Ukraine a White House visit in exchange for an announcement of investigations into the Bidens. He also stated that John Bolton, Mike Pompeo, and Mike Pence were all aware.

Although not a witness, Mick Mulvaney gave a press conference confirming that military aid authorized by Congress was held up in order to get Ukraine to investigate the DNC server.

Also of note is that the White House released the aid to Ukraine on September 11, only days after Congress announces an inquiry into Rudy Giuliani’s involvement in Ukraine and possible interference with US policy. No one has made any attempt to explain what particular evidence of the Ukrainian government fighting corruption came to light on that day which made the White House approve the aid.

Finally, the House asked (not subpoenaed) John Bolton to testify which could have turned the circumstantial evidence into specific testimony against Trump, at least according to the testimony of Gordon Sondland. The Trump administration blocked those witnesses from testifying, citing executive privilege. The Constitution gives the House the sole power of impeachment, not the executive the power to overrule their investigation. The House could definitely have taken this to the courts with an official subpoena, but they decided not to, I suspect because they felt that impeachment was somewhat politically toxic given the President’s support in the Senate. That’s a political calculation. I think the political case against Trump would have been stronger if both the House and the courts sided against the President. They decided not to the and I think the case against Trump for obstruction was weaker because of this procedural choice. Nonetheless, I can’t see any legal argument that would side with the President; if so, the House’s impeachment power is useless. Therefore, the obstruction of Congress charge certainly seems appropriate.

However, I need to take the Democrats down a peg; the stated reason for not taking the subpoena to court was that Trump presented an immediate threat to our democracy because of his election interference attempts. Democratic impeachment managers argued Russia had interfered in the 2016 election and Trump had encouraged this. I find this completely unconvincing. Russia favored a Trump victory over Hilary Clinton, and I’m sure they spent a bunch of money trying to achieve this, but I have never bought into the narrative that Russia can control the outcome of U.S. elections through Facebook ads. It’s ludicrous. Democracy is powerful because it utilizes disparate information from voters; if you think voters have to be shielded from information, even misinformation, then you don’t believe democracy is a force for good in the world. You instead prefer some sort of government where gatekeepers determine what information voters receive and then voters are allowed to vote with that limited information.

Trump’s attempts to use the Ukrainian government to help him win reelection seem to be an abuse of office. But I don’t think he is a threat to a fair election. The biggest threat to a fair election is our entire electoral system.

Senate Trial

Trump maintained that the impeachment inquiry was a “witch hunt” and a “hoax”. Under this view, it’s not surprising that he opposed John Bolton testifying at his Senate trial. Of course, the President’s claims do not address the significant (although circumstantial) evidence gathered against him. Moreover, Bolton supposedly implicates Trump in his new book. The only real explanations for the President’s behavior is either that there was a vast conspiracy, including many witnesses, his own handpicked ambassador to the EU and massive donor Gordon Sondlond, his own handpicked National Security Adviser John Bolton, his own handpicked Chief of Staff Mick Mulvaney, and presumably his own Secretary of State Mike Pompeo (although he wasn’t asked to testify). Or, Trump is guilty of doing some pretty shady stuff that he doesn’t want people to testify to. The President maintained that it is the first scenario. This seems to be quite unlikely given the circumstantial evidence.

But there’s an easy way to check, just have the Senate ask Bolton to testify. Senate Republicans declined to do this. I have a hard time explaining this in a good faith way. Some maintained that the evidence presented by the prosecution was inadequate. Unless Gordon Sondlond and Mick Mulvaney just spontaneously made up the same story despite being integral parts of the Trump’s administration, this seems hard to believe. John Bolton is a well-respected lifelong Republican, serving in the Bush and Trump White Houses. He is a strong opponent of the Obama backed nuclear deal with Iran, a defining Republican foreign policy position in the last election. Any attempt to say Bolton is a left-wing sympathizer is bizarre, and yet virtually no Republicans voted to hear his testimony.

I believe what is actually happening is that there is significant political pressure from Republican voters to end the impeachment process. Even if a Republican Senator believed Trump to be guilty, to stay in office, they must survive a primary challenge from a pro-Trump challenger, which would surely win in a Republican primary against someone who voted against Trump in impeachment. One could easily argue that the Senators are doing the democratic thing by following their voters’ interests, but it would not mean that Trump was innocent of these charges. It would simply shift blame from the Senators to our current democratic system, which is apparently unable to deal with a president who abuses the powers of his office.

Other senators, like Lamar Alexander of Tennessee stated that the prosecution made a compelling case of misbehavior, but that it doesn’t rise to the level of impeachment. We will get to this defense in a minute.

Non Defense Arguments

It’s worth taking a minute to discuss some points I have heard often, but are not actual defenses of President Trump. The first is the critique of hypocrisy, which is pretty common in these partisan times. Hypocrisy is an excellent way to impugn the motives of your political opponents, but it doesn’t address the object-level arguments. The way I’ve heard this phrased is that presidents have been expanding executive authority for decades, and now Democrats are only calling out Trump’s abuses of power because they don’t like his tribal affiliation, which is more than the usual Right-Left divide. In other words, Trump is a jerk to his political enemies and that’s the reason the House impeached him. Reason Editor Nick Gillespie has espoused something like this view, and tied it in with a libertarian point which is that Democrats don’t actually care about executive authority, they just don’t like Trump. This is a double standard other presidents have not been held to.

Closely tied with this critique is that House Democrats have wanted to impeach Trump from the beginning and were just waiting for a chance they could exploit. Note, neither of these related points address whether Trump actually abused his office. I think it’s absolutely true that Democrats have wanted to impeach Trump, but that doesn’t have any bearing on whether or not he did bad enough acts that he should be removed from office. This argument would be equivalent to Al Copone’s lawyers arguing that the prosecution had been wanting to catch him for a long time and so it’s irrelevant that he broke the law. This is not an argument. The only thing that matters is what Trump did, and the evidence isn’t good.

Returning to the abuse of executive power, I fail to see how continued abuse and concentration of executive authority over time means we should continue allowing abuse of authority. This view basically says that if one government official gets away with abuse, then we have no standing to ever challenge their successors abuses again. This makes no sense to me.

I’ve written pretty extensively about the problem with increased executive authority that’s accrued to the president. A thousand wrongs don’t make the next wrong a right. Instead, trying to restore some of the rule of law one piece at a time sounds like a good idea. And we should be using this opportunity to recruit more who didn’t use to care about executive authority into the tent.

Allowing unchecked executive power to own the libs is a dumb strategy.

Finally, there’s a lot of talk about the whistleblower who wrote a letter that helped to start this investigation. According to Republicans, this whistleblower was a partisan who didn’t like Trump. I have to admit, I have no idea how this argument is supposed to work or how it could possibly be relevant, but it seems so common, I have to include it. However the House finds out about presidential abuse, they have the sole authority of impeachment, meaning they can call witnesses and investigate wrongdoing. They’ve done so, and the witnesses have implicated Trump in abusing his office. The whistleblower’s testimony isn’t necessary. Why Rand Paul keeps talking about the whistleblower seems to just be a distraction from the evidence of Trumps wrongdoing.

Defenses

To summarize, apparently Trump sent his personal lawyer to Ukraine with intention to dig up dirt on his political opponent and even met with Ukrainian officials to achieve this end. Trump then used his office and capacity as president to directly bring up his political goals with the Ukrainian president on an official call. Witnesses and Mick Mulvaney say that military aid and a White House visit were conditioned on investigations into a discredited conspiracy theory about the DNC servers (which are not a matter of national security) and also an investigation of his political rival’s son from several years ago (also doesn’t seem to be a matter of massive national security importance).

This seems pretty bad.

I have a low tolerance of abuse of power. I think Obama was horrendous in his abuse of the office of the presidency including when the IRS targeted conservative groups, and when the administration targeted journalists with the Espionage Act. I think these could pretty easily be classified as impeachable. In that light, I don’t see how the evidence against Trump is much different.

We’ve already covered how the disinterest in the Senate on hearing from John Bolton is pretty suspect. But let’s talk about the actual defenses given by the president’s legal team. There are quite a few.

Some seem pretty specific and weak; Ukrainian President Zelensky said he was not pressured to investigate the Bidens or Crowdstrike. Of course, if your entire presidency is based on opposing Russia and you need U.S. help to maintain that stance, and the Senate is entirely controlled by Republicans, why would you risk antagonizing Trump who viciously attacks his own officials if they ever cross him (see Jeff Sessions, Gordon Sondlond was fired). If Trump was removed, it’s certain that Zelensky could quickly make friends with any future Democratic president regardless of his current positions, and so it makes sense that he would offer to support Trump publicly. This public position seems to count for little compared to actual testimony of American witnesses under oath.

More interesting I think was the argument that there could be no impeachment without a statutory crime. This could be promising, but as Ilya Somin at The Volokh Conspiracy points out, holding up Congressionally approved funds is a violation of federal law. Moreover, if you had to pass a law specifying every possible way that the president should be constrained then we would have no limits on the presidency.

Returning now to Senator Lamar Alexander, who argued against subpoenaing John Bolton by saying the President acted inappropriately but his actions didn’t rise to the level of impeachment. Supposing what the President did was not impeachable, why would this preclude getting more information from a witness? Senator Alexander didn’t know the extent of Trump’s actions prior to the House investigation and the testimony of witnesses. He says Trump’s actions were inappropriate, then it would seem judicious to get additional information to make sure no further wrongdoing had occurred. The Senator’s position is completely incoherent. Moreover, his beliefs about the world don’t explain what we see happening: Gordon Sondland was fired from his position as ambassador to the EU. If Alexander is correct and Trump did some things wrong but nothing impeachable, why was Sondland fired?

Trump maintains everything was a vast conspiracy. I’ve noted before, this is bizarre and would mean that everyone Trump happens to hand-select for prominent positions in his administration turned on him with the exact same beliefs about how his administration operates, supported by tons of circumstantial evidence, including Trump’s own phone calls. However, if you wanted to maintain such a narrative, you’d fire everyone who was in on this conspiracy, including Gordon Sondland, who testified to the existence of a quid pro. Of course, you might also act this way if you were actually guilty of abusing your office. Perhaps only John Bolton could have told us the difference. One thing that does not explain this evidence is Senator Alexander’s position: “Trump did things but they weren’t that bad”. If so, why purge the administration? If the actions revealed by Sondland weren’t a big deal (and honestly I kind of thought Sondland thought this) then what did he do wrong from Trump’s perspective? I don’t think Senator Alexander can explain this, and thus I think his position makes little internal sense.

Moreover, I think he’s wrong on the object level as well. The actions undertaken by Trump are serious. He held up Congressionally authorized aid for personal political reasons. Separation of powers is a vital part of our limited government. If the executive can simply kidnap funds authorized by Congress, then we have no limits on government power. We are no longer a limited Republic where the rights of individuals and the minority are defended against an overzealous majority. Instead we are simply electing a despot every four years who will terrorize his political enemies. If what Trump did was an acceptable use of the office of the president, can the president just deny funding for things until people do his political bidding? Could Obama have denied highway funding to red states until they agreed to drop lawsuits against Obamacare? Could he have held up funds until Congress authorized his strikes in Libya? If Trump could do the same for Ukrainian aid, I’m not sure what the difference is, or how any of this could be called limited government or separation of powers.

Finally, there is the argument that this matter should be left to the voters. It is, by definition, a very democratic argument. Clearly, of course, such an argument could not always make intuitive sense; if a president decided that he had the power to cancel elections and declare himself permanent dictator, then the voters can no longer give any input. This is the tact the Democratic impeachment managers took. I’ve already stated my skepticism about it.

However, we do not have to go there; the Constitution doesn’t indicate that impeachment can only be used if the president endangers elections. Instead it states that he can be impeached for treason and other high crimes and misdemeanors. It is clear that Congress can remove a president who misbehaves, not just about election endangerment. And this makes sense; the separation of powers in our Constitution means that both the president and Congress can claim separate democratic mandates, even conflicting ones. The president isn’t elected dictator for four years, but given limited powers and told to work in conjunction with Congress to exercise authority. If the president misuses that power, it’s clear Congress has the authority to remove him, even in an election year. To believe otherwise is to believe that there are no limits on presidential authority.

Conclusion

It seems clear to me that congressional Republicans are backing Trump due to political expediency rather than the facts as they appear. Yes, it’s true, we don’t have much in the way of direct testimony of what Trump knew and when. But we have ample circumstantial evidence to warrant taking a closer look. Republicans failed to do so, declining to hear from literal Republican heroes like John Bolton and Mick Mulvaney. I understand the reality of their politics but I don’t understand why Republican voters aren’t concerned about the massive power abuses going on in the White House and what that could mean when the other party gets into power. I’ve searched hard for another explanation for the current state of affairs, even looking at Trump’s own defense team, and I found them entirely unconvincing.

Public Domain Days Should Be Better

For the first time in 21 years, on January 1st works entered the public domain as their copyrights expired. This is both a major victory and a crushing defeat for IP freedom, depending on your expectations. Copyright terms have been continually expanded for decades, and so many people expected 2018 to see a battle as Congress tried to extend copyright terms yet again.

This failed to materialize. Timothy B. Lee at Ars Technica says that the mere threat of internet activism made this a battle the entertainment industry could not win:

“There’s now a well-organized, grassroots lobby against copyright expansion,” Grimmelmann tells Ars. “There are large business interests now on the anti-expansion side. Also a wide popular movement that they can tie it into.”
The rise of the Internet and its remix culture means that a lot of people now benefit from a growing public domain in ways that weren’t true in 1998. That includes big companies like Google, but it also includes grassroots communities like Wikipedia editors and Reddit users. This emerging copyright reform coalition flexed its lobbying muscles in 2012 when it overwhelmingly defeated an Internet filtering bill called the Stop Online Piracy Act.

So that’s pretty awesome. However, we should note that the current copyright length of 95 years is still a horrific travesty. I’ve written about this before, so I will quickly summarize some points and add a couple additional ones. First, copyright is not like other forms of property; it’s an agreement between artists and the state to provide monopoly control over a work of art for a specific period of time in order to provide an incentive for creative works. The law should find an optimum between allowing people to build upon works creatively and rewarding artists for their creations, but because the benefits of copyrights and concentrated and the costs of long copyright terms are diffuse and hidden, we now have very long copyright lengths.

It’s excellent that we won’t be getting longer copyright terms this year, but they should be much shorter. The fact remains that works that will expire between now and 2038 should never have had their copyrights extended. In fact, there is no argument that currently copyrighted works should ever be extended! They are already invented, meaning the copyright law has done its job. Copyright extensions should only work prospectively, encouraging new works that wouldn’t be created otherwise. Does current copyright length optimize for both creating works and allowing new works to build off of old ones? It’s unlikely.

One reason the copyright trade-off seems far too protective is that artists are simply not planning 95 years in the future. I don’t have hard evidence on this, but that may be because psychologists have never bothered to check whether humans plan 100 years in the future because it’s such a ridiculous proposition that no one would take their experiment seriously. There are for example, plenty of articles wondering why humans don’t do things that would obviously benefit them, like evacuating from a flood zone when a hurricane is coming. Moreover, even if you “took humans out of the equation” and had a systematic, long term time horizon corporation investing in creative works with a discount rate of 5%, cutting the length of copyright from 95 years to 50 years keeps over 92% of the net present value. In other words, even if you had a long term planning vehicle that avoided human psychological pitfalls, the vast majority of works would still be created today.

Finally, because the length of copyrights is so long, we are creating orphaned works (see the Center for the Public Domain). It would be nice in theory that artists’ estates are collecting royalties for 95 years. But in reality, only artists who were quite successful during their lifetime could afford to set up an estate who could license out their works. Many works are just so old that we have no idea who owns the copyright, and it’s literally impossible to license them if we wanted to. This problem will only get worse as more and more copyrighted works come from after 1976 when all creative works automatically received a copyright without any registration. One result of this policy is that some works will be lost forever; the physical media upon which the works were originally recorded like paper and film are literally disintegrating. People today have no incentive to digitize works as copyright claims could appear making their work unprofitable. Our current policy helps a few highly successful copyright holders while making it too expensive to bother preserving or remaking the work of all others, not to mention the hidden cost of lost derivative works.

So absolutely, let’s celebrate that we finally have a Public Domain Day for the first time in 20 years, but let’s not overlook the problems that still exist.

Martian Constitution Brainstorming

This post started out as an attempt to draft an actual constitution for a Martian colony. It quickly became apparent that such a project was pretty difficult and relied on too many variables. Consequently, it’s apparent that before writing a constitution, we have to discuss all the decisions and challenges surrounding what sort of constitution should exist in the first place. Elon Musk talked a while back about possible governing mechanisms and it seemed to me that he had evidently not thought about it very hard.

Any discussion of Martian law isn’t complete without starting with the similar governing international treaties we have right now. This Cato Institute piece by Edward Hudgins from 20 years ago is actually a good place to look. I’ll be summarizing his discussion here.

The Antarctic Treaty was signed by most large countries in the world and leaves Antarctica for scientific research and ecological preservation. Economic activity is essentially banned. Hudgins states: “This clearly is not the model for Mars.” Next is the UN Convention on Law of the Sea, which the US has never signed, although it largely agrees with the treaty as codification of maritime law. Hudgins opposes it citing provisions that could be used to “tax” economic activity in the open ocean and redistributed to inland countries. Practically speaking, I couldn’t find any evidence of such a thing happening, but I’m not familiar with fishing in international waters, and I’m sure someone else who knew more could properly complain about it, as one can about all human governance systems. I would state that this treaty doesn’t seem like a good model for Martian colonies either.

Hudgins next discusses the INTELSAT agreement, but that was privatized into the Intelsat corporation in 2001. Apparently it was an attempt to have an intergovernmental organization that provided communications between countries. I don’t have enough information to see whether it was better or worse one way or the other, but I find it telling that it was privatized and has remained so.

I should note that I’m not the only one that has been thinking about governance on Mars. There was a short-lived (as far as I can tell) conference called the International Extraterrestrial Liberty Conference, mentioned in this BBC article. Scientists and philosophers brainstormed about potential constitutions on Mars as well as legal and economic problems we might see. The astrobiologist mentioned in the article, Charles Cockell, actually has two books published, alluded to in the 2014 BBC article: Dissent, Revolution and Liberty Beyond Earth, and its follow up Human Governance Beyond Earth. Both are over $100 and I run this blog as a fun hobby, so I will not be buying them. Maybe Dr. Cockell has figured out all the problems with human space exploration himself, but I doubt it.

Next, take a look at James P. Howard’s presentation on the topic. Howard has an interesting background of computational statistics and public policy, but I don’t believe Martian law is his main subject matter (he also publicly admits to supporting the Ex-Im Bank??). Nonetheless, his was one of the easier discussions of Martian law I could find. He discusses the history of law in areas of colonization and establishing of states. We can expect that Mars, like past colonization in the New World, will have some sort of government pretty quickly, and it will have some democratic components. Howard also points out that we are unlikely to see a “global” Martian government, especially right away. Colonies will be small, sent by nation-states or companies, and they will be separate. Local self-government will be the most important form, as governance from Earth seems too remote.

A major takeaway from looking into this was that there is little research available in this area, yet plans are being made to go to Mars in a very short period of time. There should be work done on the relevant questions prior to going, but many remain unanswered. Meanwhile Elon Musk is tweeting that his Martian colony will be run by direct democracy, but what about its relationship with SpaceX, the U.S. company? Will it be subsidized? Will it receive free shipments of goods? If it doesn’t, is anyone able to be sued? What about its relationship to the United States? Will there be courts? Will there be a police force? How many people will be transported there before some of these governmental structures are in place? Some institutional structures should be predetermined, but which ones? What will be done on the fly by colonists who are also trying not die from all the lack of air, water, food, and radiation shielding on Mars?

There needs to be a comprehensive research project at SpaceX looking into what sort of legal system will exist on the Martian surface, and what can be planned out. All of these questions are also intertwined. If the colony is reliant on Earth corporations for shipments of goods, then the company has de facto veto power on any legal changes the colonists propose. Protections of colonist rights ought to be written down prior to any life or death crisis arising. Colonists will be presumably given all sorts of training in terms of physics, chemistry, rocketry, healthcare, etc. In a group any larger than a dozen or so, there will soon be the need for law, and I don’t think current efforts have begun to tackle it.

I wanted to go into a deep discussion of the minutiae of different governing and voting systems in order to tinker and figure out which system is the “best”. It’s quite possible that eventually the Martian surface will house many different colonies that can experiment in governance, but right now the concern isn’t that a Martian local government won’t have planned for an efficient voting system, but rather that there won’t be any good planning for governance at all.

Policies in 500 Words or Less

This is the next post in the “Policies We Should Be Talking About” series. For more information see the introduction (and other policies) here, but briefly, this series is about explaining policies that might be unpopular, unknown, or simply undeveloped that could still have large positive impacts. Some face specific political obstacles, and some may be too radical to gain enough momentum in the near term, but all deserve to have their signal boosted.

Approval Voting

The United States and many other nations use the worst voting system in the world: First Past the Post or FPTP. This forces voters to think strategically, voting for candidates they think will win rather than candidates they actually like. Combined with the “package deal” problem we’ve discussed before, voters have at best tangential input into the political system. FPTP leads to a variety of bad outcomes, including static two party systems, wasted votes, ease of gerrymandering, minority rule, spoiler effects (where a third party causes the preferred major party to lose despite popularity, i.e. Nader voters preferred Gore, but didn’t vote for him and Bush won), and more.

The most common alternative discussed in the United States is Ranked Choice / Instant Runoff Voting, which is being used in Maine today. This allows voters to rank all candidates they like, supporting multiple candidates. If no candidate wins an initial majority, votes are redistributed from the least popular candidates based on voter rankings. The first candidate to accumulate a majority wins. However, this system still trends towards strategic voting and two parties, since voters’ second choices are only counted if their first choice is eliminated. If a smaller party is redistributed first, voters second and third choices may be ignored, with the winner being a candidate that fewer voters had as a second choice. There are other more mathematical objections, such as the lack of a Condorcet winner. It is nonetheless objectively better than FPTP.

An even better procedure is called Approval Voting. It is incredibly simple: voters vote for as many candidates as they like, and the candidate with the most votes wins. Voters can support the candidates they really like as well as the ones they think will win. In all likelihood, this will trend towards two parties, but the difference is that third parties can spring up and build support over time without voters fearing the spoiler effects. This incentivizes new parties with fresh ideas. Main parties may co-opt those ideas as they get popular, but that’s good news for voters anyways, as good ideas can bubble up outside of the two party system and nonetheless achieve mainstream success.

The main difficulty is that almost all politicians will not support a new electoral system if they know they have already won using the old system. To get around this, the Center for Election Science recommends ballot initiatives to bring this idea directly to popular vote rather than fighting politicians who want to stay in power. They are doing just that, starting small in Fargo, ND with a ballot measure this year. If successful, it can be pointed to as a real life implementation of a good idea and can be built upon in other polities.

Additional information:

Bail Reform

When someone is accused of a crime, they are charged and given a set of restrictions to ensure they show up for trial. In the United States, this usually includes a money bond that is deposited and then returned at trial. If the defendant does not show up, the property is forfeit. However, other common law nations, including Canada and the United Kingdom, usually do not require actual money, just restrictions on movement or activities (i.e. drinking).

In the US, this has given rise to bail bondsman, who will post your bail for a flat nonrefundable percentage of your bond, often 10-15%. If you fail to appear in court, they have authorization in most states to bring you to the court’s jurisdiction to recover their bond, which is known as bounty hunting, essentially legalized kidnapping. Even if bondsman were banned (and several states have done so) this system remains terrible. If you cannot afford the bail bond, you have a strong incentive to plead guilty. Sitting in jail until trial is not an option for someone in poverty who needs to be working and earning enough for their family. Combined with other criminal justice issues like overcriminalization and policing for profit, nonviolent poor offenders are trapped by a system where they never get a chance for a fair trial due to a lack of cash. Justice should be based on guilt or innocence, not wealth.

There are better ways; the Bronx Freedom Fund realized there was an excellent opportunity to help alleviate this problem. They bail out accused persons and help them make their court date, recovering a large percentage of their posted bonds. Poor defendants are thus able to contest their charges with a fair trial, and many charges are dismissed instead of forcing the accused to plead guilty or sit in jail unproductively. They’ve been so successful they are launching a nationwide project to establish charitable bail funds around the country. John Oliver has also talked about federal courts, where pretrial services assess if the accused is a flight risk. Many are not, and so are released without bail payment at all. Those who the services determine should be assessed a bond are never given one that cannot be paid by the defendant, and in fact in federal cases and the District of Colombia, there are virtually no people awaiting trial because they cannot afford bail, compared to the 450,000 state defendants.

What political challenges are there? The bondsman business has a strong interest in opposing any bail reform, and each state has to update their rules. There are good ideas though: Rand Paul and Kamala Harris introduced a bill that will provide federal grants to states who reform their bail system, although it will likely die in committee. It nonetheless lays the blueprint for how we might tackle this problem from a nationwide perspective in the future.

Additional information:

Organ Markets

Organ markets are extremely unlikely to be implemented soon. Nonetheless, organ market legalization would have by far the most concrete and immediate benefit to the world today, and black market organ markets already exist. Every year over 4000 people die awaiting a kidney in the US, and Medicare spends $89,000 per person on dialysis every year (that’s $34B/year for Medicare, $42B including private spending). The kidney supply is dwindling as cars get safer (many organs are donated by deceased car accident victims), but the vast majority of people do not need both kidneys while alive, and so could sell their kidney to another person with relatively low risk, given compensation. By far the most likely to sell their kidney would be people of lower income, and this is widely touted as a negative for this policy. It is not: blocking the poor from this avenue of income available to them, while simultaneously allowing people in need of kidney transplants to die, is morally wrong.

There is always concern when a transaction occurs between people of different wealth levels. Poor people may not be “forced” into the transaction, but if they have no good alternatives, it seems apparent there is a lack of choice. This is the difference between transactions that are “voluntary” and those that Michael Munger calls “euvoluntary“. Nonetheless, preventing the poor from participating in “voluntary” transactions that others would categorize as “exploitative” does not solve the poverty problem, and in fact makes it worse than letting them participate in the transaction.

Despite this argument, there is a simpler answer to legalizing organ markets: don’t legalize every possible transaction. Law can preclude people below a certain wealth level from selling their kidneys, enforce waiting periods for sellers, create delayed payments, or set prices via formula instead of the market. Yes, these restrictions will severely reduce the benefits that could accrue to the poor who want to sell their kidneys, but anything is better than the total ban we have now. Regulated organ markets could significantly increase the supply of kidneys available, while reducing demand on black markets.

On the demand side, regulation could leave in place the current waitlist structure and avoid rich people jumping the line entirely. This would require the compensation on the supply side to be fully government funded (would still likely save money given Medicare spending on dialysis). A market price on the demand side would have better systemwide benefits, as there would be incentives to improve the market, find efficiencies, etc. However, the potential gains are so large that even a heavily regulated market is worth creating, and relevant legislation already exists.

The political obstacles are clear. Organ markets could be exploitative, while transactions involving human body parts “diminish human dignity” according to the National Kidney Foundation (does death diminish human dignity?). Despite this opposition, there are significant gains to be had from an organ market that cannot be overlooked.

Additional information:

How Iran’s kidney market works
Sally Satel EconTalk episode, Tina Rosenberg EconTalk episode.
National Review article
Legalize Organ Markets from postlibertarian.com