How much damage could Donald Trump really do, after all?

Some of the people planning to cast protest votes in November have a bedtime story they love to tell themselves. In the story, Donald Trump’s election wouldn’t be such a bad thing because the diffusion of power in the American political system would prevent him from carrying out the worst of his lunatic schemes.

Now, there is a germ of an idea there: political and institutional constraints greatly limit the power of a President. But it’s worth noting that the political constraints generally act through the perceptions of the President and those around him about what he can, and can’t, get away with: that is, precisely the sort of thing that would have kept Trump-the-candidate from, e.g., hurling ethnic insults at a federal judge. A President unfazed by criticism, and willing to ignore advice about the limits of his lawful authority from the Office of Legal Counsel, actually can get quite a lot done.  No President in the modern era – even Nixon – has dared to say what President Jackson said about a Supreme Court ruling: “Mr. Justice Marshall has made his decision. Now let him enforce it.” But what if we had a President who was willing to behave that way, surrounded by advisers egging him on to do so?  Trump’s power for evil might be substantially greater than (e.g.) Obama’s power for good.

Today a friend challenged me on this point: Make a list of ten really, really bad things that President Trump could actually do. A little bit of emailing around produced the following list. I’ve divided it into two groups: the “stroke-of-the-pen” things that a President could accomplish just by ordering them, and other things that would require Congressional approval or help from state governments. But let’s not forget that Trump’s election would almost certainly mean both that he had a Republican Senate and House to work with and that the Republican members of those bodies would mostly be terrified of primary challenges should they oppose the imperial will.

The distinction between the two groups is not absolute; in principle, the appropriations power could be used to constrain virtually any Presidential action, in the extreme by zero-budgeting the Executive Office of the President, leaving The Donald to write his own orders. And of course there is always the impeachment power. But again, an election that brings us Trump would be likely to disable those safeguards as well.

“With a stroke of the pen”

  1. Withdraw the United States from the Paris Agreement on global warming.
  2. Abrogate the nuclear deal with Iran, setting the stage for either war with Iran or Iranian development of a nuclear weapon. (Or both.)
  3. Deny hostile, or even objective, journalists and media outlets access to information by refusing them admittance to press conferences, instructing appointed and public-affairs officials to refuse all interviews, and subjecting even routine data requests to FOIA delays. That will have three effects: disabling the effective capacity of the independent media to exercise oversight; giving professional and business advantages to complaisant reporters and their outlets; and creating incentives for reporters and outlets alike to stay in the Administration’s good graces.
  4. Institute criminal investigation and prosecution of political opponents. The Attorney General, the FBI Director, and the 94 United States Attorneys all serve at the pleasure of the President. (The 10-year term of the FBI Director is a maximum, not a minimum, and Bill Clinton fired Director William Sessions in 1993.) Now imagine FBI Director Chris Christie, reporting to Attorney General Jeff Sessions. Those positions, and the U.S. Attorney slots, are all Senate-confirmable, but even if the Senate were to resist the President could appoint all of them on an acting basis.
  5. Use tax enforcement and the award or denial of tax-exempt status to punish enemies and rewards friends. The Director of the IRS is also a Presidential appointee. Civil-service protections would make it harder to replace IRS career staff with political loyalists, but the GWB Administration made substantial progress in filling the Justice Department with Republican apparatchiki, and the same could be done at the IRS.
  6. Attack “liberal-leaning” universities and not-for-profit research enterprises by either interfering with the grant process directly or by using financial or compliance audits to disqualify them.
  7. End enforcement of the Voting Rights Act. This is entirely at the discretion of USDoJ, and no doubt Assistant Attorney General Kris Kobach will have other priorities.
  8. Cease Department of Justice investigations into police misconduct.
  9. Mount a massive deportation process. Direct the Department of Homeland Security to target and remove persons who registered under DACA and DAPA.
  10. Investigate the “loyalty” of Muslims in the civil service and the military.
  11. Substantially reduce enforcement of anti-discrimination law, including revoking executive orders that require nondiscrimination by federal contractors.
  12. Block all entry of refugees.
  13. Wreck the Affordable Care Act in practical terms by reversing the administrative decisions that make it feasible, and destroy it legally by conceding its unconstitutionality the next  time it is challenged in court.
  14. Loosen regulation and virtually eliminate enforcement of all environmental laws, workplace health and safety laws, and consumer protections. Early targets would be the Obama Administration’s aggressive attack on air pollution from coal-fired power plants and the newly-instituted fiduciary-standards rule for pension advisers.
  15. Reinstitute torture by replacing the Army Field Manual with Bush-era interrogation “standards.” I do not believe that most, or even many, senior officers would abide by such orders. But the President is, indeed, Commander-in-Chief, and only custom keeps him from firing those who disobey unlawful orders. (When President Lincoln was told that Confederate forces had captured forty mules and two major-generals, he replied, “Too bad about the mules. Major-generals I can make.” Ranks of O-4 [major or lieutenant commander] and above require Senate confirmation, but junior officers are created by Presidential fiat, and brevet promotions are unlimited.)
  16. Encourage Russian aggression in Europe by renouncing our NATO obligations. Start by recognizing Russian sovereignty over the Crimea.
  17. Withdraw the U.S. from other treaties and international organizations: WTO, NAFTA, the U.N., the Paris Treaty on international climate change.
  18. Encourage Japan and South Korea to develop nuclear weapons by raising questions about the validity of our security commitments.
  19. Unofficially encourage or sponsor the growth of armed far-right “militia” groups, and discourage enforcement of federal laws against them (e.g., vigilante border enforcement groups, takeovers of federal lands by “sovereign citizen” organizations).

By legislative action or with the advice and consent of the Senate, or the help of state governments

  1. Appoint at least one and perhaps three Supreme Court justices on the Alito model, locking in a right-wing majority for a generation.
  2. Reduce tax rates for the rich.
  3. Block grant food stamps and/or Medicaid.
  4. Appoint anti-worker and anti-union members to the National Labor Relations Board.
  5. End federal support for the full range of women’s health services, including ending the federal partnership with Planned Parenthood.
  6. Increase domestic production of coal and oil while ending public investment in renewable energy.
  7. Repeal of Dodd-Frank, Sarbanes-Oxley, consumer financial protection laws.
  8. Disenfranchise Democrats with a combination of voter-suppression tactics (shorter voting hours, fewer voting machines leading to longer waits, hard-to-meet “voter ID” rules) and gerrymandering. In the extreme, use electronic vote counting to simply miscount the votes.

A story is told of Benjamin Franklin. As he left the Constitutional Convention – which did its work in secret – for the last time, a woman stopped him to ask, “Well, Dr. Franklin? What have you given us? A monarchy, or a republic?” Franklin answered, “A republic, madam: if you can keep it.”

This is not a game. Institutions do not maintain themselves.  Not all damage is reversible. I do not believe that Trump will be elected, and I do not believe that, if he were elected, that would be the last relatively free and fair election for President. But it’s not impossible.  Let’s not do the experiment.

I consider this list provisional. Please suggest additions, subtractions, and edits in comments. Do not take that as an invitation to debate. Comments of the form”but howsabout Hillary?” will be relentlessly zapped.

 

“Non-violent direct action” from the Right

The threatened trucker shutdown of DC as a reductio ad absurdum of “civil disobedience.”

Civil disobedience – nonviolent direct action – is, in my view, a justified alternative to violent revolution, to be used when the democratic process is unavailable, as was the case during the Second Reconstruction era. Blacks denied the right to vote in the South, and their white supporters, took direct action – facing both arrest and illegal violence by law enforcement officials and others – against an intolerable and undemocratic system.

But when the ballot box is available, direct action to coerce the majority and its elected representatives into yielding to your policy demands is not justifiable. I thought that in the context of the Vietnam War, when the “shut it down” folks managed to enrage the very voters they need to so persuade and thereby helped re-elect Richard Nixon and keep the war going, and nothing that has come along since has changed my mind.

On the other hand, it’s fair to say that I have utterly failed to persuade anyone of my viewpoint on this. “Civil disobedience” as a tactic is hallowed by its use in the Civil Rights era, and the invocation of that slogan serves as an effective argument-ender. (Nor have I persuaded anyone, so far as I can tell, to read the original Thoreau essay, which is about withdrawal of obedience as a revolutionary strategy against a government engaged in imperialism and slavery, not a mere pressure-group tactic.)

But history, it is said, is philosophy teaching by example. Whether or not a group of lunatic truckers following the lead of a failed C&W singer actually succeed in nonviolently paralyzing the Capital next week (more, that is, than the Republicans in Congress have already paralyzed it) by their (fully nonviolent) tactic of making their trucks a “moving roadblock” on the Beltway, the fact that the tactic is being used in support of a group of incoherent but obviously right-wing demands ought to help clarify the moral issues involved for some progressives.

So, some questions for RBC readers:

1. Do you hope that the FBI has infiltrated the group and is able to identify those coming to DC for the purpose of shutting down the city?

2. Would you support the pre-emptive arrest of those who have entered into the conspiracy when they are found to be moving toward DC with their eighteen-wheelers? Or should the police stand by helplessly until the city is blockaded? If the truckers carry through on their threat to lock their brakes and walk away, the process of clearing the roads could take days.

My guess is that this will fizzle. But the extremist political rhetoric and actions of the right-wing media and political elite both heightens the risk of this sort of behavior and raises the stakes enormously. I’d like to hear Rand Paul and Ted Cruz discourage their followers from participating, but I’m not holding my breath. The scariest thing about the U.S. News article is that every single right-leaning commenter supports this lunacy.

Note to conservatives about Martin Luther King

King lived and died fighting everything you stand for. Deal with it.

Yes, I know you hate the fact that the 50th anniversary of the March on Washington for Jobs and Freedom is being (1) being treated as a civic, rather than a factional, event and (2) that the speakers at the anniversary rally, and the accompanying news coverage, stressed liberal themes such as voting rights and health care.

Well, as the guy being guillotined said, I think I see your problem. Since MLK is now officially a hero, you’d like him to be a civic hero rather than a hero of the faction opposed to yours. But while he was alive, and for some time after his death, your faction hated him, and everything he stood for, and tried to defame him. No prominent conservative or libertarian politician, writer, or thinker supported the civil rights movement he led.

The factional split was not identical to the partisan split. There were (mostly Southern) Democratic racists who opposed the civil rights movement; they were known as Dixiecrats or “conservative Democrats,” and their heirs followed Strom Thurmond into the Republican Party, which they now dominate. There were also Republican supporters of civil rights; they were called “liberal Republicans” (I voted for a few of them) and your faction now calls people like them RINOs and has successfully purged them from the Republican Party.

Your faction was, adamantly and unanimously, on the wrong side of history, as spectacularly as the small share of progressives who supported the Soviet dictatorship. Even today, I have failed to find a single libertarian or conservative prepared to speak out against gutting the Voting Rights Act.

Martin Luther King died while on a campaign to support a public-sector labor union. You’re entitled to say that he was a bad man and a Communist, as your faction did while he was alive, and that his assassination was the natural result of his use of civil disobedience, which is what Ronald Reagan said at the time. You’re entitled to say that he was a great man but that his thoughts are no longer applicable to the current political situation. But what you’re not entitled to do is to pretend that, if he were alive today, MLK would not be fighting against you and everything you stand for. He would.

Socialism and the civil rights movement

Harold Meyerson shows his bias: 3500 words on socialist contributions to the civil rights movement, with no mention of libertarian and conservative contributions. There must have been some, right?

I second Harold’s endorsement of Harold Meyerson’s essay on the socialist underpinnings of the civil rights movement. Looking forward to the equivalent piece on the contributions of libertarians and conservatives to that struggle.

How Legalization Can Expand a Black Market

New research shows that legalization can make the black market larger rather than smaller

Human trafficking is one of the most revolting crimes on the planet, and it is therefore understandable that some governments have taken radical action to attempt to eliminate it, including legalizing prostitution. The argument, which seems sound on its face, is that expanding the supply of legal prostitution will draw demand away from the illegal market that relies on human trafficking. It is thus both surprising and important that new research from the London School of Economics shows that legalizing prostitution increases, rather than decreases, human trafficking.

This finding is stunning until one recognizes that demand for prostitution, gambling, drugs and the like is highly elastic. When the demand-suppressing effect of illegality is removed, demand can increase, sometimes dramatically. All of this new demand does not necessarily go to the legal market. Some new legal market entrants engage in the parallel black market some of the time (e.g., play legal slots at the casino by day and participate in illegal mob-run poker games at night). If the size of the newly legalized market is rapidly growing, these “fractional customers” can make the black market larger than it was in the pre-legalization period when all market participants were 100% reliant on the illicit market to meet their demand.

Other people may develop demands in a newly legalized market that over time lead them to move exclusively to the illegal market. For example, a man who begins going to prostitutes when sex work is legalized may realize over time that he wants to have sexual encounters in which he is physically abusive to prostitutes. He would then migrate to the black market where he can more easily indulge his violent propensities. Similarly, people who becomes addicted to a newly legalized drug may come to want to consume it so often and in such quantities that only the black market will meet their demands.

It has long been speculated that the phenomenon of legalization of a market growing a black market has already happened with gambling. There has clearly been an explosion of legal casinos, poker competitions, state-run lotteries etc., but no definitive research indicates whether the prevalence of illegal gambling has increased, reduced or stayed constant as a result. The new LSE research is I believe the first formal test of the possibility that legalization can grow a black market, and for prostitution it appears that it can (full paper here).

There is clearly more empirical work to be done in this area. But in the meantime, wise heads in the policy world will not take it as a given that legalizing something will necessarily shrink the black market.

h/t: Eric Voeten, who blogs at our sister site, the Ten Miles Square section of Washington Monthly.

Democrats, Republicans, and civil rights: let’s look at the record.

Republicans as champions of civil rights in the ’60s? Not so much.

One of the standard glibertarian/Republican lies (recited frequently by some RBC commenters) is that, in the Civil Rights struggles of the early 1960s, Republicans stood for equality and Democrats stood for racism. They’ve even managed to fool PolitiFact on the first half of the claim, ignoring the little detail that in 1964 the Republicans nominated an opponent of the Civil Rights Act of that year for President. Yes, back then there were still lots of racist Southern Democrats, and some liberal (and a bunch of moderate) Northern Republicans: you know, the same people the Red Team has spent the last thirty years purging from the Republican Party. In the meantime, all the [next generation of] Southern racists moved into the welcoming arms of the GOP, creating today’s lineup.

Even back then, a four-way breakdown (by party and region) shows that non-Confederate Democrats (despite the presence of Robert Byrd) were more supportive of civil rights legislation than non-Confederate Republicans, and that even Confederate Democrats were slightly better, on average, than the small number of Confederate Republicans.

One way to disentangle region from race is to look at state-level legislation. Continue reading “Democrats, Republicans, and civil rights: let’s look at the record.”

Prof. Thomas S. Szasz, M.D. (1920-2012)

Tom Szasz died on September 8, 2012. I met him in the early 1990s, when he was in Cambridge to participate in a symposium on drug policy. Keep in mind, please, that what I know about public policy, psychiatry and the War on Drugs could fit into a teaspoon. Mark asked me to help him host a post-forum dinner for the panelists solely because of his faith in my social skills. Two of the men at the party were known to square off against each other based on a difference of ideology, and Mark wished to avoid unpleasantness. I was touched by his groundless belief that good manners could prevent a food fight, and I resolved to do my best.

As things turned out, there was no need for oil on troubled waters. The dinner guests kept it civil, and I got to meet Tom, who was seated across from me. I don’t want to sound melodramatic, but it was a life-changing experience for me. Continue reading “Prof. Thomas S. Szasz, M.D. (1920-2012)”

“Due process *of law*” Dep’t

Eric Holder’s claim that an secret, undefined, unreviewable Executive Branch process for deciding which American citizens to kill constitutes “due process” doesn’t pass the giggle test.

OK, I didn’t go to law school, but I get the point that legal language doesn’t mean what it says; it only means what the cases say it says.

And I’m persuaded by the argument that the web of Islamist terrorist groups attacking the U.S. resemble a wartime enemy more than they resemble a set of ordinary criminal conspiracies, and that therefore their members can be attacked as enemies rather than tried as criminals. You don’t need a court order to fight a battle.

But the Constitution still provides that “no person shall be … deprived of life, liberty, or property without due process of law.” When the Attorney General says that a mere secret executive branch decision, arrived at under unknown procedures, and of which certain selected Members of Congress are retrospectively notified, constitutes “due process,” it seems to me he’s left out the “of law” part.

At the bare minimum, there ought to be a set of officials – though I’d prefer that the group not consist only of those who serve at the pleasure of the President – making some sort of formal finding after some sort of formal hearing, with at least one official (might be a career JAG officer) charged with the responsibility for arguing against the designation, and given full access for that purpose to any and all information in the government’s possession.

Now maybe what I’ve described is close to the actual process. But it’s still not, to my non-legal eye, “due process of law” unless the process itself is explicitly authorized, either by Executive Order or (better) by statute, and that authorization, with the relevant procedures, is made public.

Do I trust the Obama Administration not to kill anyone who isn’t actually an enemy threatening deadly violence? Modulo the risk of error, yes. I’m willing to believe that Anwar al-Awlaki got what he asked for.  But that’s not the test. The test is whether the office of President contains within itself the unreviewable power to order American citizens killed, and, therefore, that if Dick Cheney had persuaded George W. Bush that some American Wikileaks supporter was a member of a “fifth column,” – or if his Minister of Spiritual Warfare persuaded President Santorum that some Unitarian was in league with Satan in his war against American institutions – that would make it lawful to send in the drones.

The Constitution does provide for the case of an American citizen who levies war on the United States, or adheres to their enemies.  That’s the definition of treason.  And the Constitution provides that a conviction of treason requires the testimony of two witnesses, or confession in open court.  Now that’s “due process of law.” The Attorney General’s version is, at best, a due-process-of-law-flavored drink mix.

 

 

 

Berkeley protests

Yesterday an OWS-affiliated (whatever that actually means) crowd tried to occupy what functions as a quad at Berkeley, with tents in which to stay a while.  Campus police and Alameda County Sheriff’s deputies arrived in armor looking like Darth Vaders, cleared the tents away by force, pulled down signs, and brutalized a bunch of students and faculty.  Getting jabbed with the end of a police baton held in two hands is not a nudge, as the AP inexcusably described it, and neither is getting grabbed by the hair and thrown to the ground for convenient placement of handcuffs.   Brutalized is the word, though the police have lately been trained to injure people in ways that don’t show in TV interviews (no bleeding scalps or bloody noses! no broken long bones: cracked ribs hurt plenty, and we don’t want pictures of victims in hospital beds or casts).  There were 39 arrests, including a professor and 22 students.  Some of the videos I watched last night and this morning have been taken down by YouTube, but there are several here that will make you sick.

Our chancellor, who is here responsible for an episode that is totally inept as both leadership and public relations, has had the remarkable good fortune of being able to hide behind his opposite number at Penn State all week (and do our students ever look better than theirs).  He circulated a letter to everyone yesterday that may reach a new high in official cowardice and mendacity (but note exception below). It presents a stupefyingly lame justification for the “no encampments” order he issued, and blandly identifies standing unarmed in a row with arms linked – you remember, the way MLK and the freedom riders did – as “not non-violent”.  Then he adds the truly incredible “we regret all injuries, to protestors and police, that resulted from this effort.”  Injuries to police? Excuse me: AFAIK there were no injuries to police: the police, as Chili Palmer says, were the ones inflicting the pain, period. And finally, we get the inevitable, scurrilous passive voice diffusion of responsibility into thin air, “the police were forced to use their batons to enforce the policy.”

I have never been completely comfortable with the California campus protests of the last couple of years.

Continue reading “Berkeley protests”