Month: February 2019

Michael Cohen’s description of his former boss was vivid, concise, and devastating. It did not, however, tell us much about him that we didn’t already know, and by itself, it has no chance of resulting in impeachment. That power rests in Mueller’s hands, if anyone’s.

It occurred to me last night that if you are a true believer in the green/red Jerusalem and the environmental equivalent of World War II, the last thing you want the left to do is to put all of its energy and anger into impeachment. Not only is Trump not the greatest obstacle to the GND, his personal failings and unpopularity will be a selling point for it in 2020.

The GND and MAGA! There’s an unholy alliance for you!

Proponents of reparations typically argue that substantial payments and a heartfelt national apology would bring some measure of closure on slavery, Jim Crow, and racism in general. Are they right?

LOL.

Given the magnitude of the crime, does anyone seriously believe we could just pay up and move on? Does anyone really think that white people are itching to make amends for the sins of their distant ancestors? Did the payment of compensation make the issue of the Korean “comfort women” go away? Did German payments to the victims of the Nazis completely defang the issue?

You already know the answers to those questions. Reparations would further inflame the divisions in this country, not heal them.

The resource-rich country was in a great power’s traditional sphere of influence. Unfortunately, its leadership was corrupt and inept, and its politics were chaotic at best. The standard of living fell significantly.

The great power responded to the instability by using every lever it had short of an open invasion to support its allies. The government managed to hang on, however, and stalemate was the result.

Is it Ukraine or Venezuela? Time will tell. Putin sent in his little green men; will Trump and Rubio do something similar? Don’t bet against it if the stalemate continues, as it probably will.

OK, so you’ve somehow worked your way through the issues of who pays and who gains from reparations. Now comes the really hard part–calculating the amount of the payments.

If the event triggering the need to pay damages is limited to slavery, the job is actually reasonably straightforward, if hardly easy. You could probably determine the average wage of a free agricultural worker in the South in the antebellum years through available documents. You would then subtract a small amount for subsistence payments, add an arbitrary fixed amount for emotional distress, apply an appropriate discount rate, and you would have your figure. At least the first part of it. But more is to follow.

From what I have seen, most of the arguments about reparations revolve around the very real wealth disparity between African-Americans and white people, which is usually attributed to the effects of segregation. The proponents of reparations typically assume that there is a fixed lump of wealth and that, if African-Americans lost x number of dollars as a result of segregation, the same x flowed to white people and should be used for the payments. That isn’t true; there is no lump of wealth. It is perfectly possible that white people would have been better off financially without segregation, as is the case in post-apartheid South Africa. As a result, identifying the funds that should be paid by white people to African-Americans due to losses attributable to segregation, as opposed to slavery, is incredibly hard.

And then there is an argument to be made for offsets. The victims of slavery had their lives completely ruined by it. But are their distant ancestors financially worse off today than they would be if they still lived in Africa? Not bloody likely.

All of this is academic, of course. If reparations were somehow to become reality, you can be certain that the amount selected would be small and arbitrary–possibly based on median wealth differentials. Would that actually help to heal the wounds? More on that tomorrow.

At first glance, the reserved, bookish Madison would appear to have nothing in common with the bombastic, narcissistic, invincibly ignorant Donald Trump. And yet, they do share one enthusiasm–the use of economic sanctions.

Their view of sanctions, of course, was motivated by wildly different circumstances. When Madison was in office, the United States was an economic and military minnow. Madison wasn’t willing to create a Hamiltonian state by substantially increasing the size of the army and the navy, so what other tools did he have? Trump, on the other hand, has the advantage of the largest economy and the most powerful military on the planet. He likes economic sanctions because they create leverage, leverage leads to successful negotiations, and negotiations, not war, are his ultimate test of manhood.

Sanctions ultimately failed for Madison; the result was the War of 1812. Sanctions and political theater also appear to be falling short for Trump in Venezuela. Will military intervention in some form be the inevitable Plan B? My guess is yes, but we’ll see; it depends, to some extent, on whether Trump or Rubio is really running the show.

Harris has apparently said that she would support reparations. The question for today is, would she be entitled to receive payments?

Let’s review her background. Her father is a Jamaican of African descent who immigrated here in the 1960’s to study economics. Her mother is an Indian who also immigrated in the 1960’s. Both of her parents were professionals. Although her parents divorced when she was young, she appears to have had a fairly comfortable childhood. Today, after graduating from law school and winning three different public offices, she is a US Senator running for president, and her family has plenty of money.

Her story illustrates the following issues with reparations:

1. SINCE SHE IS HALF INDIAN, WOULD SHE QUALIFY FOR PAYMENTS? As I noted yesterday, the reparations bill would have to create some legal standards for how “African-American” you are in order to receive payments. Would half be enough? I would imagine that the system would fall back on old standards from the Jim Crow days, which should make everyone uncomfortable.
2. HER PARENTS CAME HERE VOLUNTARILY. WOULD VOLUNTARY IMMIGRANTS QUALIFY? Logically, no, and cases like this point out potential problems of administration.
3. SHOULD SUCCESSFUL PEOPLE WHO GREW UP AFTER THE DEMISE OF JIM CROW BE ENTITLED TO PAYMENTS? Harris probably felt the sting of racism at points in her life, but did it really cost her any money? I would guess not. She is probably a lot wealthier than I am. People in her position should not qualify for reparations.

As you can see, the administration of this program would be a nightmare. Tomorrow, it gets worse, when I discuss how to compute the amount of the payments.

You might think that “one man, one vote” is a venerable constitutional principle, but you would be wrong; it only dates back to the 1962 Supreme Court decision of Baker v. Carr. In Baker, a majority of the Court held that voting district boundaries which overwhelmingly favored rural over urban interests as a result of population shifts in the state of Tennessee could be reviewed as a violation of equal protection. The dissenters argued that the Court was essentially trying to create a remedy in a purely political field in which there were no agreed-upon neutral standards based on historical practice. The decision might well have been different if Tennessee had provided some sort of direct democracy remedy for the aggrieved urban residents, but it did not, so the system would likely have been self-perpetuating for the indefinite future in the absence of judicial action.

Today, we are in a very analogous situation with gerrymandering. Litigation is bubbling its way up through the system, and the Supreme Court is bound to decide one of the cases sooner or later. Will we get a Baker v. Carr for the 21st century?

I very much doubt it, and not just because the Court has a right-wing majority. Boundary issues are very complex, and are best addressed by bipartisan commissions and standards created through legislation. Democrats and Republicans alike have had some success modifying egregious systems through referenda in several states. There is no historical basis for saying that the Founding Fathers were appalled by gerrymandering; after all, Gerry himself, as I recall, was one of them. The legislative history of the Fourteenth Amendment doesn’t include any references to gerrymandering. As a result, don’t look for any revolutionary changes in the jurisprudence on this issue in the foreseeable future.

Elizabeth Warren and Kamala Harris have apparently indicated that they support the concept of reparation payments to African-Americans, although there are serious questions about whether the measures they contemplate are actually “reparations” in any meaningful sense. Warren is also open to the idea of reparations for Native Americans. Whether she would qualify for the payments herself is unclear.

Creating and implementing a reparation program would be devilishly hard. The question for today is, who pays? If you think that issue is simple, and the answer is white Americans, consider the following:

1. WHAT IS THE STANDARD FOR WHITENESS, AND HOW WOULD IT BE ASCERTAINED AND ENFORCED? I suppose you could go back to the definitions used in the Deep South prior to desegregation, but if that makes you uncomfortable, it should. In addition, there is no obvious way of tracking the history and the DNA of over 300 million people to determine beyond a reasonable doubt whether they are “white” or not.
2. WHAT ABOUT THE EUROPEANS? Americans were not, by any means, the sole beneficiaries of slavery. From the descendants of cotton mill owners and workers in Lancashire to the heirs of ship owners and slavers throughout Europe, countless people made money off of slavery who could not be made liable for reparations.
3. WHAT IS THE TRIGGER DATE, AND WHAT IS THE CRIME? If the issue is limited to active participation in slavery, liability should logically be limited to the heirs of slave owners. If the issue is expanded to include de jure segregation, only Southerners should be liable, if you can somehow determine who a “Southerner” is. If the problem includes de facto segregation, all white Americans are guilty in some way; that system would be much easier to enforce. As we will see in a later post, however, computing the amount of reparations becomes vastly more difficult if it includes de facto segregation.
4. ARE THERE ANY OFFSETS? It seems obnoxious to charge the descendants of people who fought and died to end slavery with reparations. Native Americans also have an excellent claim to be exempt; in fact, you can easily make a case that African-Americans should be paying reparations to them.

And this is one of the easier issues. I’ll tackle the identity of the beneficiaries tomorrow.

To a reactionary, affirmative action represents everything that is wrong about the federal government today, because it gives “cuts in line” to lazy, feckless, grasping minorities who don’t in any way deserve them, and punishes hard-working white Christian men, the bedrock of this country. Reactionaries view affirmative action and its first cousin, political correctness, as direct affronts to themselves and their way of life. As a result, affirmative action has always been very, very controversial, and there is no reason to believe that will change in the foreseeable future.

Personally, I think it is a mistake to view affirmative action as a monolith. Some programs can have significant social benefits even after all these years, but others lack any reasonable justification in either policy or history. Here is my analysis of three such programs:

1. MINORITY AND FEMALE SET-ASIDES IN PUBLIC CONTRACTS: These drive up the cost of public services by enriching minority contractors who may not have experienced discrimination in the past. The focus on contractors rather than employees practically guarantees that the benefits of the program will inure primarily to people who are already relatively prosperous. Affirmative action programs typically work best when they create opportunities instead of granting prizes; public contracts are a prize. No one wins here except a few people who probably don’t need help, anyway.
2. AFFIRMATIVE ACTION IN COLLEGE ADMISSIONS: Objections to affirmative action in college admissions typically assume that there is some sort of unquestioned meritocratic ladder among universities, and that the failure to attend a school consistent with your ranking is a problem for the rest of your life. Neither of those statements is true; furthermore, admissions are an opportunity, not a prize. I accept, as the Supreme Court has in the past, that maintaining a diversity of cultures and views among the student body is an interest which justifies a degree of affirmative action. However, diversity and race are not completely synonymous, so race should only be used as a tie-breaker in the admissions process.
3. AFFIRMATIVE ACTION IN PUBLIC EMPLOYMENT: Employment is more of a prize than an opportunity, which presents potential problems. On the other hand, there are some situations in which race is directly connected with effectiveness in the job. Do you really think that African-Americans would be as willing to talk to a white cop as a black one? Didn’t think so. As long as that connection exists, it makes perfect sense to try to hire African-Americans over white people.

Donald Trump, of course, is a “realist” who dismisses the rule of law, both at home and abroad, as being a mere cover for money and power. He also famously values loyalty over everything, including competence. And so, as you would expect, he clearly believes that he can rely on “his” Supreme Court to bail him out of any legal mess he might create. Hey, he gave Gorsuch and Kavanaugh their jobs–when he calls on them to perform services for him, they will deliver, right?

Maybe. Thomas, Alito, and Gorsuch are right-wing hacks; his reliance on them is perfectly reasonable. Kavanaugh probably is, too, but we don’t have enough of a record yet to say for sure. Roberts, however, is another story altogether.

Roberts is the Mitch McConnell of the Supreme Court. He plays chess, not checkers. He cares about the reputation of the Court, and he knows that there are times you have to restrain yourself, and even retreat, if you want to win in the end. He’s a partisan, but one who sees a bigger picture. Finally, he cares about his place in history; he doesn’t want to be the 21st century equivalent of Roger Taney.

As a result, I think Trump will prevail in some, and possibly most, of his legal disputes, but not all of them. It will depend on the facts. At times, Roberts may be a “rat.”

One of the principal issues in the drafting of the Constitution was the allocation of powers between the states and the federal government. It was no surprise, then, when many of the first landmark decisions of the Supreme Court addressed that question. By and large, the federal government won those cases–otherwise, we would have a system that looks more like the EU than the US today. Since relatively few goods were moved across state lines at the time, however, the role of the federal government was inevitably quite limited until the 20th century.

Today, hardly any of the goods we consume are produced locally. That is true regardless of where you live. As a result, we need, and have, a system that regulates commercial activity primarily on a national level. The notion of allocating the regulation of the “production” of goods solely to the states would be absurd.

The Supreme Court finally got the message in the latter stages of the 1930’s. The commerce clause consequently became the constitutional vehicle by which the federal government expanded its powers, with judicial acquiescence. There were few effective checks on those powers for about 75 years. Today, however, federalism is on the Supreme Court’s agenda, and the pendulum is starting to swing back to some extent.

As a practical matter, federalism is usually an argument, not a reason; both the right and the left cite it when they are out of power, and reject it otherwise. Justice Kennedy, however, was genuinely sympathetic to federalist positions, while Roberts in particular uses them in bad faith for ideological reasons. As a result, you can expect the Supreme Court to rule consistently for Trump in disputes involving blue states, but if Bernie Sanders were somehow to get elected, red states will be making federalist arguments in the Court to block his agenda, and they are likely to have some success.

Readers of this blog will remember that I strongly oppose the Sanders plan for free public college because: (1) college is not a necessity in the same way that, say, health care is; (2) there is no obviously good reason for workers who do not attend college to pay to subsidize the education of children of upper-middle class parents; (3) college typically (although not always these days) is a prudent financial investment that logically can be funded by loans; and (4) it would be legally impossible for the federal government to dictate terms to the states, who actually own and operate public colleges.

The Warren day care plan appears to be of roughly the same magnitude as the Sanders plan–is it equally objectionable? No, because: (1) the subsidies are going to the people who need them; (2) I don’t think there is such a thing as a loan for day care; (3) it would help children as well as the parents; (4) by all accounts, affordable day care is a huge problem for tens of millions of working Americans; and (5) it would help grow the economy by making it possible for more women to work.

I don’t know if this plan will work in its entirety, but it is definitely worth a serious discussion.

In 1976, the Supreme Court erroneously found that since money enabled political speech, it was itself speech, and so campaign contributions and expenditures were protected by the First Amendment. That finding did not invalidate all regulations pertaining to campaign spending; the Court examined the policy rationales for a variety of different spending regulations and found some of them to be sufficiently compelling to justify the regulations. If money is speech, however, limiting spending by wealthy individuals and entities for the purpose of maintaining a level playing field is inevitably constitutionally suspect. As a result, we live in a world in which people like Michael Bloomberg and Howard Schultz can plausibly consider running for president, and far worse could follow in the future.

As I’ve noted before, the level of ideological polarization in our country means that money is overrated as a factor in national elections, so this isn’t as big a crisis as you might otherwise think. The success of various left-wing candidates, most notably Bernie Sanders, in raising large sums of money in small chunks on the internet also indicates that the system, while ramshackle, is still fundamentally fair.

There is no real prospect of the Court changing its mind on this issue, or of a constitutional amendment reversing the campaign expenditure decisions, so the world we will have in the foreseeable future is the one we have today. The only real question is whether the Court will revisit its conclusion that disclosure regulations are valid. The Court’s position on that point has been stated unambiguously in multiple decisions, including Citizens United, so you would think it would never come up again, but the right never gives up, and stranger things have happened. If you don’t believe me, just look at the series of Obamacare decisions, and Justice Thomas’ recent complaints about New York Times v. Sullivan.

It’s late 2021, and President Sanders is getting frustrated. He won a crushing victory in 2020, but the “revolution” is bottled up in the Senate, stopped by the filibuster. Mitch McConnell won’t agree to abolish the filibuster, of course, but neither will Chuck Schumer or most of the Democratic leadership in the Senate. The reason: they can foresee a time when the GOP regains control of every branch of the federal government, and they worry about what the end of the filibuster would mean for the welfare state, and even for abortion rights.

Sanders and his “revolutionaries” go behind the leadership of both parties and make a deal with the extreme right wing of the GOP. In exchange for the abolition of the filibuster, Sanders agrees to appoint Supreme Court justices who will acquiesce to the overturning of Roe v. Wade. Both the left and the right deliver on their promises; the “revolution” becomes law, and Roe is overturned.

A few years later, after the GOP returns to power, the new Congress is able to reduce the welfare state dramatically, to repeal all of the “revolution,” and even to approve legislation banning abortion throughout the country.

Implausible? Yes. Impossible? No. If Sanders really wants to move the “revolution” through the system, he is somehow going to have to conjure a way to get 60 votes for social democracy in the Senate, or he’s going to have to make some sort of a deal like this.

Anti-abortion activists like to analogize abortion to slavery. Whether you agree or disagree with them, the analogy is clearly accurate on one point; when the Roberts Court is done dealing with the issue, the country will be divided into states in which abortion is either facially or just effectively banned, and states in which it is robustly protected. It is an updated version of America in 1860. The house divided, if you like, based on “popular sovereignty.”

The question for today is, what happens next? To extend the analogy one last step, the abortion abolitionists aren’t going to be satisfied with controlling half the country. They are going to do everything they can to impose the ban on the blue states, as well.

How can that be done? This is where it matters whether the Court overturns Roe or just applies a pathetically weak level of scrutiny to state abortion regulations. If the latter, the abolitionists have no remedy other than a constitutional amendment, which will never have enough support to pass. If the former, however, the abolitionists will have two legal options: federal legislation; or a re-interpretation of the Fourteenth Amendment to treat fetuses as “persons.”

The ability of the right to get legislation banning abortion through Congress depends on the fate of the filibuster, since it is very unlikely that the GOP will ever have 60 votes in the Senate on this issue. Ironically, the Sanders left may at some point cooperate with the abolitionist right to get rid of the filibuster. More on that issue in a later post.

The other alternative is to persuade the Supreme Court to treat fetuses as “persons” for purposes of applying the equal protection provisions of the Fourteenth Amendment. Any such interpretation would be incredibly ahistorical, and would be a total embarrassment to anyone who claims to have any respect for precedent. For that reason, I can’t see Roberts ever going along with it. With the other four so-called “conservatives,” however, it is a different story, and it is easy to imagine the “personhood” approach getting at least four votes with the current Court. Just subtract one more liberal, and it could happen.