Bostock v. Clayton: The Silence of the Libs.

In Bostock v. Clayton, the Supreme court decided that discrimination against gay employees violates Title VII of the Civil Rights Act of 1964. (The case also applies to trans employees, but the logic is parallel, so this discussion will refer only to homosexuals.) I don’t know whether the case was rightly decided, but I do not believe the Court’s opinion by Justice Gorsuch makes the case for the decision reached.  And, although Bostock may prove to be as important as Griswold v.Connecticut – even Justice Gorsuch calls it an “elephant” – not one other justice saw fit to offer a concurring opinion. Justice Kavanaugh felt moved to write his own dissent, but the Court’s liberals declined to offer a better case for the result than Justice Gorsuch’s wordplay.  Maybe they were content to take the win, and maybe they didn’t want to rock the boat. But they may come to regret their silence.

Writing for the Court, Justice Gorsuch applies the “but for” test used in other cases where membership in a protected class was not the sole or primary reason for an action challenged under Title VII. Applying that test, Justice Gorsuch reasons that if an employer does not fire women who prefer men, but does fire a man who prefers men, the employer discriminates against that man “because of [his] sex.” As Justice Gorsuch wrote (p. 9) “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Sounds fair, but something seems off about it, so let’s test that template.

The Age Discrimination in Employment Act of 1967 tracks the language of Title VII, prohibiting discrimination against an individual “because of such individual’s age.” In most states, people below the age of sexual consent are permitted to work. Presumably, an employer would not fire a sixteen-year-old burger flipper for asking out a sixteen-year-old cashier. But if a fifty-year-old worker did the same thing, the employer might decide not to have a potential pedophile on the payroll. Thus, changing the employee’s age would have yielded a different choice by the employer. By Justice Gorsuch’s reasoning, the older employee would have been fired “because of that individual’s age” and could sue under the ADEA. I find that result troubling, but it fits perfectly into Justice Gorsuch’s “but for” template.

The problem, I believe, lies in the choice of “traits” considered. Justice Gorsuch wrote (pp. 9-10):

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

Compare that argument to this one from a hypothetical dissent:

Consider, for example, an employer with two employees, both of whom are attracted to members of their own sex. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires them both, for no reason other than the fact that each is attracted to his or her own sex, the employer does not discriminate against either for traits or actions it tolerates in their colleagues.

As lawyers like to say, Justice Gorsuch “puts the rabbit in the hat” when he chooses preference for a particular sex, as opposed to preference for one’s own sex, as the “trait” shared by the two employees. There is no a priori reason to make that choice, and none is offered. On the contrary, the ADEA example suggests that the choice is ill-advised. The potential pedophile in that example is fired not for preferring nubile teens, a defining trait of the red-blooded cis-het schoolboy, but for age-inappropriate creepiness, something someone of any age can evince (and be fired for).  If every employee of either sex who prefers his or her own sex is treated equally, changing the sex of the employee does not change the choice by the employer.

Justice Alito makes this argument in his dissent (p. 16)

If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex.

I believe Justice Alito has the better argument here. (I don’t know why he doesn’t simply reject “prefers men” as a difference rather than dismiss it as not shown to be an operative difference.) In preferring Justice Alito’s analysis, I am not saying that the majority decision is wrong, just that it was poorly defended - and that the liberals really should have spoken up with a less easily refuted rationale.

Justice Kavanaugh’s dissent is also persuasive as a critique of Justice Gorsuch’s opinion. That, too, is not the same thing as being persuasive as to the result, but it does again make louder the silence of the libs.

The Misdirection of “Original Intent.”

I’m guessing you’ve heard the suit joke. Here’s a concise version grabbed from the web:

A man tries on a made-to-order suit and says to the tailor, “I need this sleeve taken in! It’s two inches too long!”

The tailor says, “No, just bend your elbow like this. See, it pulls up the sleeve.”

The man says, “Well, okay, but now look at the collar! When I bend my elbow, the collar goes halfway up the back of my head.”

The tailor says, “So? Raise your head up and back. Perfect.”

The man says, “But now the left shoulder is three inches lower than the right one!”

The tailor says, “No problem. Bend at the waist way over to the left and it evens out.”

The man leaves the store wearing the suit, his right elbow crooked and sticking out, his head up and back, all the while leaning down to the left. The only way he can walk is with a herky-jerky spastic gait.

Just then two passersby notice him.

Says the first, “Look at that poor crippled guy. My heart goes out to him.”

Says the second, “Yeah, but his tailor must be a genius! That suit fits him perfectly!”

The “suit” (no pun intended) in Bostock is “original intent,” a trivially reductive “doctrine,” if it can be called a doctrine at all. All judges are originalists. All agree that words in statutes mean what they “meant” at the time they were used. So, for example, when Queen Gertrude says the lady doth “protest” too much,” she means that she promises too much, because at the time, “protest” meant “promise” (as in “Protestant).” No judge is going to interpret “protest” in an Elizabethan statute to mean “remonstrate” just because that’s what it has come to mean centuries later.

But self-styled “originalists” beg a more subtle question. Very often, the issue in statutory interpretation is not, as Justice Gorsuch calls it (p.4), the “public meaning of its terms at the time of its enactment.”  That meaning is usually clear enough. The real question is whether those words are being used de re or de dicto. The nuances of that distinction are beyond the scope of this essay (and my ken), but the TL;DR is that the same expression can be used either to refer to a certain thing (de re) or to describe an unknown thing (de dicto). The classic example is “John believes that someone is a spy.” We cannot tell from the words themselves whether John believes he knows who the spy is. Is the speaker speaking de dicto (John does not believe he knows) or de re (John has a certain person in mind). 

Context can sometimes resolve the issue. When Glenn Miller’s crooner declares that he’s goin' to Michigan to see the sweetest gal In Kalamazoo, we know he is speaking de re, because he obviously has a certain young woman in mind. (She’s a real pipperoo!)  And when Petruchio says he has come to wive it wealthily in Padua, we know he is speaking de dicto, because we know he is unacquainted with the local social register. But in either of those examples, the actual sentences leave open the question of whether the speaker had a specific person in mind.

Some legal questions turn precisely on the choice between de dicto and de re. We can, for example, interpret the term “cruel and unusual” de re to identify punishments that were thought “cruel and unusual” in 1789 , or we can read it de dicto to describe punishments that are cruel and unusual by the lights of the future society administering them.  Nothing about one interpretation is more “originalist” than the other. Both interpretations would be supported by a 1789 dictionary.  But one interpretation treats the term as an identifier and the other treats it as a descriptor.

When self-styled “originalists” invoke “original meaning,” they are often really saying that they wish to treat statutory words as de re identifiers and not as de dicto descriptors.  Thus, Justice Gorsuch’s fellow “originalist” Justice Alito writes (p.4):

Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.”

This factoid implies, I believe, that a more modern dictionary might define “sex” more broadly, but it wouldn’t matter to Justice Alito, because, to him, that change would be like the shift in the meaning of “protest.” The counterargument would be that we have since 1964 come to understand that at least some aspects of sexuality are innate and so should benefit from whatever legal provision has been made de dicto for “sex.”

I attribute the tendency toward de re interpretation to a kind of conservatism. As a matter of policy, a de re reading is less likely than a de dicto reading to intrude on legislative prerogatives.  That’s not a bad place to start analysis, but it is only a place to start. 

The Missing Concurrences

Regarding the meaning of “sex” in 1964, Justice Gorsuch was not so sure as Justice Alito about the state of play (p.5):

The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.

Whoa! For the sake of what argument did the employees “concede” the point? Surely, they can concede that the point is irrelevant to Justice Gorsuch’s argument, as he sided with them. But it is hardly possible that the employees “say” that “sex” may mean more than plumbing but “concede” generally that it doesn’t. 

I mentioned Griswold because six opinions were filed in that case.  Each of the writing Justices wanted to make clear his view of why the case should have been decided as it was decided. A concurring opinion in Bostock might have provided a pro-employee template that pedophiles can’t use. I'm not especially worried about pedophiles, but if pedophiles can use a logical template, that template is almost certainly defective. And if the template is defective, the power of the case as precedent is weakened.  

Justice Alito solved the logical problem in a way that comes down against the employees. I would like to have seen a Justice argue that Justice Alito is wrong about what “sex” meant in 1964, and that, even if he is right, the word was used de dicto in the statute and so now should be read to comprehend at least some aspects of sexuality. I cannot say whether that case can be made, but I do wish the Court’s liberals had given it a shot.

Beware of Originalists Bearing Gifts

I must confess a somewhat dark view of Justice Gorsuch’s opinion – and of the liberals’ silence. The opinion looks to me like a Trojan horse. The reliance on the choice of trait for the “but for” argument is so bizarre as to call that test into question entirely. If a “but for” test as presented here would protect pedophiles, then that test must be tweaked to require some level of relevance. But liberals have been winning with the “but for” test for decades, and they may well be loath to suggest that it does not apply here for fear it might not apply somewhere else. Justice Alito’s argument against Gorsuch’s version actually protects the “but for” rationale by showing that it must be used correctly. Still, by misapplying it, I think Justice Gorsuch erodes its authority.

Judge Gorsuch may also be attacking the “disparate impact” analysis of Griggs v. Duke Power Company.  His opinion makes a very big deal of how the statute is about “individuals,” and not classes. Thus, the fact that the employer’s employment practices do not have a disparate impact on men or women is no excuse. If no disparate impact is no excuse, maybe conduct that has such an impact is not actionable. Gorsuch writes (p. 7):

In so-called “disparate treatment” cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional.

But that’s not what those cases say. They say that disparate impact is the “functional equivalent” (Griggs) of intent. One wonders whether the camel’s nose of revisionism has stuck its nose under the disparate impact tent. I can see why the liberals would not want to pull on that thread either, but still, some turf needs to be defended if it is to be retained.

All in all, I was hoping for something better. 

COVID-19 and the Missing Bullet Holes

The story is told about how the US Army figured out the best way to armor its airplanes in WWII. Because armor slows planes down, it could not simply be layered on indiscriminately. So engineers had to figure out which parts of the plane needed it most. To find out, they inspected planes returning from battle. Because the planes were presumably being hit by anti-aircraft fire randomly, the parts of the planes that had no bullet holes must have been parts that could not afford to be hit, as planes being hit there were not returning. Those parts (the engines) got the armor.

I heard this story from my college room mate more than fifty years ago, but its logic, like the curious incident of the dog in the night time, stuck with me as a way to approach certain types of problem.  One such problem may be finding an "accidental" cure for COVID-19.

Recent reports suggest that chloroquine and hydroxychloroquine, anti-malarials long available generically in the US and used now for autoimmune diseases like rheumatoid arthritis and lupus, may prevent/cure COVID-19. The possibility of prevention (or cure so quickly as to amount to prevention) brings to mind the airplanes and their bullet holes. Everyone who seeks medical care for anything is asked for a list of medications they take. What if, despite the fact that something like .25% of the population takes CQ or HCQ  - I'm guessing; the number doesn't really matter so long as it's big enough - almost no one presenting with COVID-19 takes either of those drugs? Wouldn't that raise an inference that the drug is providing protection? And, of course, this bit of induction is not limited to these drugs. A bit of data-mining should reveal any significantly under-represented medication in the COVID-19 population.

Yes, clinical testing needs to be done, but, as Henry David Thoreau wrote, some circumstantial evidence is quite powerful, as when you find a trout in the milk. If people taking HCQ in France are getting better, and people already on CQ or HCQ here (and anywhere else) are not getting sick, We may have a way out of this mess before a real vaccine can be developed, tested, and distributed.

This thought must have crossed the minds of people in a position to look into it. So, if a popular medicine that incidentally prevents COVID-19 infection or symptoms is out there, it will be detected, and we will be back to our lives sooner than most people believe.

COVID-19 and the Birthday Party Model

I have long believed that the real reason kids have birthday parties is so that they can trade microbes. When else do we let strangers blow on our food? We let kids share microbes so that they will develop herd immunity. The contagion is contained because the kids' parents are largely immune to the bugs kids bring home. Not all of them, but enough of them for the birthday "system" to be a net plus.

COVID-19 differs from other diseases that are milder in childhood in one important way: adults are not immune to it. But that does not seem to me to rule out allowing young, healthy people, including otherwise healthy pre-senior adults (aka parents of school children) to contract and purge the disease as a way to create herd immunity. Instead of the total social distancing we are practicing, we should only be isolating high-risk populations. The rest of us should be getting on with our lives.

I also wonder how the economic effects of social distancing affect death from all causes. We don’t have universal healthcare, and, even if we adopted it tomorrow, one may expect that the economic dislocations of businesses shutting down will cause an increase in homelessness and death by other causes, including fear of emergency rooms.

My guess is that history will record that we over-reacted to this bug, not in the sense that we worried too much about it, but in that our response was insufficiently nuanced. The social distancing will last much longer than necessary because herd immunity will not be achieved until nearly everyone’s been vaccinated (as with smallpox in its day). We will look back and realize that we could have done more by doing less.

[Update: The herd immunity method was tried in the UK, but data suggested that the hospital system could not handle the surge of severe cases. A policy of case and family quarantine plus social distancing of high-risk populations might in fact reduce total cases, the so-called "area under the curve," but hospital beds create as constraint outside the simple epidemiological math.]

Obamacare is Still Constitutional

Having guessed right last time about SCOTUS's take on the Obamacare individual mandate, I am emboldened to guess again now that the Court has agreed to hear the latest challenge. Only this time, I'm afraid I may only be predicting what the dissenters will say.

In NFIB  v. Sibelius, Justice Roberts opined, correctly in my view, that the individual mandate in the ACA, which imposed a penalty tax on those who don't have health insurance, was a valid use of the tax power and was, therefore, Constitutional. At the same time, Roberts's opinion included dictum to the effect that the mandate was not authorized by the interstate commerce clause.  Seizing on the latter dictum, the idiot Republicans in charge of the Senate came up with a brilliant idea: reduce the penalty tax to zero. That way, there would be no tax on which the supporters of the mandate could hang their hats.

Congress eliminated the penalty in the tax cut act passed in 2017. They did not simply repeal the ACA, because, under the Senate's rules, they could reduce taxes by a simple majority, whereas actually repealing the law would require a vote that could be filibustered.  (Why Democrats want to get rid of the filibuster is beyond me.)

In their cynical attempt to kill the ACA by cutting its femoral artery, the GOP has, in my view, instead repealed the mandate and left the ACA legally, if not practically, unscathed. Without a penalty, there is no constitutionally cognizable mandate, and, without a mandate, there is no case. The resulting statute may not make sense, and it may not be actuarially sound, but it is what Congress has wrought, and it imposes on no one any burden the Constitution forbids. So, what's the problem?

The district court judge who ruled that the law was rendered unconstitutional by removal of the penalty tax wrote, in effect, that the mandate:

(i) survived removal of the penalty even though there is no legal consequence to ignoring it, 

(ii) is, by the logic of the opinion in NFIB, unconstitutional absent a tax to back it up, and 

(iii) is an integral part of the Act's structure, so that in being struck down, it takes the entire ACA with it. 

The district court's opinion has two key findings. First, the court determined that removing the penalty was not the same thing as removing the mandate, because the language imposing the mandate is still in the Internal Revenue Code (the provision was obviously not drafted by tax lawyers), and so  some people still feel obliged to obey it.  A handful of individual plaintiffs were actually dredged up to claim that they bought insurance out of respect for the mandate in the amended law. Second, and most crucially, the court found that the mandate was an integral part of the ACA structure and so its failure rendered the whole act void.

Neither of these findings can withstand much scrutiny. Congress does not create wrongs without remedies. If there is no sanction for non-compliance with the mandate, the mandate becomes "surplusage," words that Congress would have removed if it were doing a better job of drafting. There is no rational basis for leaving the mandate in the law without a penalty. There are some irrational reasons - e.g., so that it could be declared unconstitutional - but SCOTUS should (and I hope will) refuse to accept, without an actual Congressional finding, that Congress intended to pass an unconstitutional law.

Sound jurisprudence demands instead that the Court simply declare the mandate void, rather than "accuse" Congress of intentionally sabotaging its own act.  Declaring the mandate void would obviate people's duty to obey it, providing complete relief to those poor sots who feel obliged to buy insurance despite the absence of any penalty for not doing so. (Obeying a law that Congress has implicitly repealed does not cause the law not to have been repealed.)

Removal of the penalty also makes untenable the court's finding that the surviving "unconstitutional" mandate is an integral part of the ACA. No doubt, the mandate was an integral part of the ACA when violating it gave rise to a tax. But, as they say, that was then, and this is now. If Congress removes the penalty without reasserting the centrality of the mandate, it must also be presumed to have "reconsidered" the centrality of the mandate.

The district court found that Congress did retain its finding that the mandate was an integral part of the law. That conclusion was based on Congress's failure to remove the language in the ACA that says so. But, as the judge said, removing the language would have violated Senate rules. Therefore, no more can be inferred from failure to remove the language declaring the mandate integral than can be inferred from failure to remove the mandate itself. If Congress commits itself to drafting poorly, all the Courts can do is interpret what is left. In this connection, it's worth noting that the whole section of the ACA defending the mandate was predicated on Congress's power to regulate interstate Congress. Arguably, SCOTUS voided the entire section when it said in NFIB that the mandate was not supported by that clause.

The district court judge recognized that removing the penalty would likely undermine Congress's intent in passing the ACA. But if that's the case, the repeal of the penalty should be regarded as repeal of the ACA, something the Senate rules do not permit, and so, cannot have been the Congress's intent. Yes, there's a certain amount of "gotcha" reasoning here. I am urging the Court to take Congress at its (implied) word that it intends its acts to be law, so the least possible damage should be done to a defective law to enable as much of it as possible to remain law.

In this case, the least damage is done by treating removal of the penalty as nullification of the mandate, with whatever practical consequences that may have. If the district court is right that the amended law does not work without a penalty tax, Congress is free to restore the penalty or create some other subsidy to make the ACA's pre-existing conditions rules affordable. That Congress made the ACA stupid is not reason enough to infer either that it intended to repeal the law, in violation of its own rules, or render the law unconstitutional, in violation of the Constitution.

Perhaps the ACA's opponents should have argued that the surviving mandate opens non-compliers up to civil liability, some sort of class action of payers against non-payers for the damage done to the healthcare system by their failure to comply with Federal law. Such liability would give the mandate teeth, which would subject it to the Interstate Commerce test that it failed last time around. Thing is, the mandate is in the Internal Revenue Code. That's no place to find substantive private law. I will, therefore, defer consideration of civil liability until someone raises it.

In short, the cynical GOP assholes who control the US Senate have put SCOTUS in a bind. The Court must hold that the 2017 amendment to the ACA (i) implicitly repealed the ACA, contrary to Senate rules, (ii) intentionally rendered its own law unconstitutional, contrary to its raison d'etre under Article I of the Constitution, or (iii) implicitly removed the mandate, but did not repeal the entire ACA or make it unconstitutional. That choice seems easy to me. But maybe that's just me.

Impeachment - Not There Yet.

I'm still a Never-Trumper, but I favor rejecting him at the polls over impeaching him in Congress. (Ideally, I’d have Congress impeach him next November, after he loses the election, just to denounce him and disqualify him for future office.)

Alleging corrupt intent is too easy and too tempting.

One strong argument against impeachment was made just this morning by Sen. Rand Paul in an interview with Jake Tapper: If your rival’s son robs a liquor store, can you be impeached for demanding he be investigated? Note that I said “impeached,” not “criticized.” A good president would react to news that his rival’s kid is a criminal with “The Justice Department is handling that, and I don’t want to comment on it.” But we don’t have a good president. We have a godawful president. Still, the sin of demanding an investigation of a real crime is way closer to “maladministration” — being a godawful president — than to high crimes and misdemeanors.

So the Dems must fall back to the specifics of the Trump/Biden case. We all know that Trump was not really interested in the Bidens’ corruption, because we all know that he is a corrupt individual who believes in corruption as a way of getting things done. But we can’t impeach him for being a horrible human being, something we knew in 2016. Nor should we take official action against him based on what “we all know,” because we all can come to “know” a lot of things that aren’t true.

I am not saying that we lack evidence that Trump’s motives in the Ukraine affair were electoral. My problem is that I cannot find a bright enough line between what Trump did and what he would have been doing if the Bidens were in fact worthy of investigation (whether or not actually guilty of anything). Too much of the Dems’ case depends on the claim “There is no evidence that Joe ever acted to favor Burisma.” When did the absence of evidence become evidence of absence? Absence of evidence is, indeed, the core of Trump’s weakest defense. We have been subjected to hours of baloney about his not explicitly stating that the aid to Ukraine was contingent on the investigations he was demanding. How can the Dems complain about that defense when their “proof” that Trump’s motive was corrupt is that “there is no evidence” that the Bidens were corrupt?

Maybe that’s why we hear so much about foreign involvement, with continual references to the mention of foreign intrigue in the Federalist. But the argument is circular. The Dems say that Trump is seeking political assistance from Ukraine. Trump says he is demanding help with uncovering American corruption. We have cooperative intelligence arrangements with foreign governments. Australia tipped us off to Russian meddling. That information had positive, but not dispositive(!), political effects for Sec. Clinton. So getting help from foreign powers in matters that have political ramifications is not an impeachable offense. No, it comes back to the fact that Trump is a lying SOB. But all politicians are allegedly lying SOBs. In this case, the allegation of lying is supported only by the absence of evidence that the alleged lie (viz. that the Bidens are corrupt) is true.  That's an evidentiary hole that leads, in my view, straight to the voting booth. 

Politics ain't beanbag

I carry a very strong presumption in favor of the voters being the ones to punish political chicanery.  In a democracy, everything a leader does should have political consequences, and everything a leader does should take into account the extent to which public opinion will favor or condemn it. The matter is subtle: leaders must lead, but they must not coerce. We are seeing this issue play out with healthcare. We know the system is broken, but we are not ready for Medicare for all. If Sen. Warren changes her position on M4A to reassure union workers that they will not be forced to give up their plans, that may sound like opportunism to some, but it sounds like “listening” to others. Who’s to say that the politics did not change her mind about the best policy to pursue? Answer: the voters. NOT the Congress of the United States.

Getting re-elected is what politicians do. News accounts of the machinations relating to impeachment never fail to mention their political ramifications. The GOP is concerned with protecting its vulnerable senators, and the Dems are concerned with protecting their vulnerable representatives. Are these people’s exercise of their public responsibilities not being affected by their political self-interest? How is that different in kind from what they are accusing Trump of doing?

Was Mulvaney wrong? Do we not do “it” all the time? Yes, Mulvaney was “admitting” that there was a quid pro quo for releasing the Ukrainian aid, but that still leaves the “we do it all the time” argument on its own merits. It’s a different argument from the one Trump first made, but it may still be a good argument, and the Dems who are calibrating their  impeachment moves with their political fates in mind are having a hard time refuting it. If it’s so bad to trade foreign aid for political favors, what do we think of basing impeachment decisions on political effects? Has the left wing not “extorted” an impeachment process out of Speaker Pelosi by threatening her speakership? Should they all be “impeached”?

I believe that we must be leery of prosecuting "political" crimes  criminally or by impeachment.  Trump certainly sought to extort a political favor from Ukraine, with no benefit to the USA. But given a system of government in which political gain (i.e., public approval) of one’s official decisions is at least relevant to most such decisions, a president seeking to “steal” an election by coercing a foreign government to help him slime a rival does not in my judgment rise to the level of high crimes and misdemeanors. This is especially true when, as here, the voters will in fact get to vote on the guy and his publicly exposed conduct months after any impeachment process will have ended.  (If we can't vote Trump out, do we really deserve to govern ourselves?)

The strongest argument for impeachment, in my view, is that the President is attempting to rig the next election, i.e. that we cannot “let the voters decide,” because if we don’t oust the sonofabitch, the voters won’t actually be able to decide. But our politics features the sage observation “he stole it fair and square.” One test of a political leader is the ability not to be taken advantage of by bad actors. If Trump can steal the election from you, then Putin could probably steal the world from you. 

I believe Trump won the nomination because none of his opponents could actually humiliate him, despite his being the worst person ever to run for the office. There they were, up on the stage, being asked if they would back the GOP nominee whoever it turned out to be. Only Trump refused to raise his hand. Any decent candidate would have joined him and said, loud and clear, that if the Party nominates Trump, he or she would do everything in his power to defeat him. Instead, these would-be “leaders” showed a level of cowardice completely incompatible with the presidency. The question might as well have been “Who is too stupid to see that Donald Trump should not be President of the United States?” They answered that question honestly, and the rest is history.

The Democrats and the electorate both need to redeem themselves for their horrid performance in 2016. If either fails to do so, then a strong case can be made that we do not deserve to govern ourselves. Who knows? Maybe that is in fact the case.  Maybe democracy has hit the wall of diminishing returns, where everything people can agree to do has been done, and all that's left to do are things we must be forced to do. There is no rule of nature that says otherwise. Seems an important thing to discover, though, and having Trump on the ballot in 2020 strikes me as the best possible way to discover it. 

How do you say "nightmare" in Spanish?

The Democrats's first round of debates was a never-Trumper's nightmare. Bad as it was all around, a few embarrassments stand out.

First was the plethora of VP contenders, book floggers, and otherwise supererogatory deadwood. I like the idea of political parties, but only if they have some coherence.  Tom Perez has admitted that he wanted all of those people on stage, and he wanted fireworks, because it generated "earned media."  Is that what we have political parties for? To earn the attention of the ratings whores who run our media?

No, Mr. Perez.  If the 2016 election should have taught party leaders anything, it's that the party should limit the field to people with the support of its leaders. Nancy Pelosi, good as she is as a Speaker, is a feckless party leader.  Her voice should count, and it should be loud.  The party is not served by Eric Swalwell's proof that back-benchers should be seen and not heard, Maryanne Williamson has no business on the debate stage, Andrew Yang should run for dog-catcher before President, and on and on.  And Bernie Sanders?  What part of "party" does the DEMOCRAT party not understand?  Of course, the party should work to defeat him; he isn't even a member!  Yikes.

And then there's the circular firing squad, led by Kamala Harris. After feigning reluctance to criticize a fellow Democrat, Sen. Harris implied last week that Mr. Biden was "celebrating" segregationists.  She didn't have the courage to accuse him of doing so; he simply said that she didn't think anyone should do it. (Sometimes, context is everything.) But by the night of the debate, she had dropped all pretense. After clearing up, for those of us in doubt, the burning question of whether Mr. Biden is a racist - she said he is not - she accused him of "praising" segregationists and then, again after protesting that the debate shouldn't be a food fight, proved that point by throwing him under the bus, rehearsing a forty-year-old grievance, choreographed with the Tweet of a picture of herself as pickaninny in pigtails.  Food fight? No. Knife in the back?  Sure.  The left says she won the debate.  Wrong. Donald Trump won it.

The debate about healthcare was not about healthcare.   Everyone up there was for universal coverage. The debate was about whether private insurance companies were a sufficient cause for our broken system. Those opposing private insurance did so out of hatred for their profit motive.  There was no substantive discussion about the quality of care, the negotiating prowess of private entities vs. the corrupted government, or anything else.  Single payer is one thing, but a government-run health system - can you say "VA", little girl? - is something quite again.

A special vote of thanks to the moronic José Díaz-Balart. He asked each of the candidates whether someone whose only violation of the law was entering the country illegally should be deported, conjuring up images of good people living long commendable lives, but describing as well thugs with MS-13 tats the minute they exit the tunnels.  They haven't committed any crimes here either. So all those lawyers on the stage put on their pander suits and said they would not deport those people.  Mayor Pete at least had the sense to frame his response as a use of resources, but the right answer was simply "How long have they been here? Twenty minutes or twenty years?" If practical, illegal entry should be a tort, the remedy should be deportation, and there should be a statute of limitations. The first day of law school, students are told that they will learn how to think like lawyers, but some learn only how to think like politicians. They all sounded like they were for open borders, or at least for some kind of game where, if you can make it over the fence, you get to stay.

Meanwhile, again in response to a "yes or no" question, they all say that their government-run health plans would cover illegal immigrants.  Mayor Pete got to say that his plan would "cover them" by letting them buy in like anyone else, but, one assumes that the poor among them would be equally subsidized. I know he's the intellectuals' darling, but that may just mean that his sophistry is more sophisticated. The herd effect pretty much requires that we treat anyone here so that their illness or disability does not affect the rest of us.  As Anatole France wrote, the law in its majesty forbids rich and poor alike to sleep under bridges, beg in the streets, and steal bread.  If we don't want people doing those things, we must make poverty less common and less oppressive. The same is true of illnesses, especially infectious disease.  Out of what kind of spite do we not treat tuberculosis in an illegal immigrant?

But the issue is subtle and connected to the deportation problem. So long as deportation is a risk, illegal immigrants will not seek help, and the unhelped can be a dangerous presence. So maybe a case can be made for a high wall and amnesty for those who get over it, not for their benefit but for ours.  A common sense position would hold that the fewer people get in, the more we can do for them. But common sense isn't how one gets elected here anymore. Qué lástima.

Speaking of which, we should not let the whole Spanish business go unremarked. I suspect that I know as much Spanish as Cory Booker, probably a bit less than Beto O'Rourke, and a lot less than Mayor Pete (who only spoke Spanish when addressed in Spanish). But I know enough to recognize a thick "American" accent, and I found it embarrassing to hear these people conduct US politics, however poorly, in a foreign language.  This is not Canada.  Ici on ne parle pas l'espagnole. Aquí, nosotros parlamos inglés. At least that's what the independent voters we want to lure away from Trump do.

To answer my title question, then, the debates me dan pesadillas; they gave me nightmares. They resurfaced everything Hillary did wrong. Even when the occasional candidate mentioned the "working men and women," it was in the context of zero-sum class warfare, not bigger-pie optimism. Wages are paid from gross revenues.  You can't pay factory workers more if you lower the price of what they make. That's not to say that some prices aren't out of hand, just that restoring collective bargaining, not taxing the rich, is the winning Democrat message.  Don't kill the goose; fatten it and change the sharing rules.

In short, two tough nights for conservative never-Trumpers. I will vote for whichever of these left-wing wackos gets the nomination, just as I voted for HRC, who was not a left-wing wacko but, to her shame, consternation, and comeuppance, played one on TV. I prefer misguided to evil, and one does not choose among the candidates one wants; one chooses among the candidates one gets.

Did I mention las pesadillas?

Naming Names - the Public Michael Cohen Hearing

A lot happened when Michael Cohen appeared before the House Oversight Committee, so much that something might have been overlooked.  The media have dissected the stuff that sells papers, but there was something that plucked a certain civic string that hasn't been plucked in almost seventy years. The press ignored it, perhaps because ignoring it butters their bread.  But I am oddly and gnawingly discomfited by it.

I'm talking about Cohen naming the names of Trump's henchmen.  The prosecutors with whom Cohen is cooperating have all the names.  Congress could certainly get them in a list provided privately.  Why, then, did the Democrats - you know, the ones who railed about Comey saying bad things about someone he did not think should be indicted - feel so free to have some more names of people who may or may not eventually be indicted, disclosed publicly?  Wouldn't "Can you give us a list of people who have evidence of Trump's skulduggery?" have sufficed? Did these people's children have to hear their Dads' names on TV? Do these people deserve to be hounded by reporters on Michael Cohen's say-so?

Our pols do not seem to recognize the difference between a precedent and a one-off.  Consider the filibustering of judges. Mitch McConnell - a truly dreadful human being, but I digress, sort of - used the filibuster to prevent confirmation of qualified judges rightfully appointed by President Obama.  That was subversive and inexcusable.  Harry Reid's "nuclear" response to McConnell, dispensing with the filibuster for appointments other than SCOTUS justices, was unanimously opposed by Republicans. Allegedly, they thought it was a bad idea.  Yet, when they got control of the Senate, they did not undo it.  Reid's rule change came back to bite the Dems in the butt, and, good government being always the farthest thing from Mitch McConnell's mind, the Republicans have kept Reid's rule in place. Apparently, it, and they, have mellowed with age.

So, a one-off response to an unprecedented GOP abuse of the filibuster became a precedent rather than a caution.  The same thing is happening with the President's border wall "emergency."  The Democrats simultaneously rant about how the President has no power to do what he is doing while wetting their pants over the possibility that their President will get to do the same thing with guns and opioids and climate change.  Given what they see as a good chance of winning the White House eventually, the ideologues on both sides of the Congress are eager to take Congress out of the President's way when he's on their side.  This ridiculous, unconstitutional fraud is all too likely to become a precedent, because the members of a feckless Congress would rather abdicate their responsibilities than perform them.

But back to Cohen.  There was a difference between the HUAC and McCarthy hearings, on the one hand, and the Trump hearings today. The substantive issues today are not political.  The people that Cohen named are not accused of subversion or disloyalty, just maybe covering up venality. How is it that the naming of possible traitors is now seen, rightly, as loathsome, whereas the naming of cogs in the Trump money machine is applauded as a "road map" for Congress? Still, the theatricality of public naming was the same. Here's a piece from Chapter 10 of Victor Navasky's Naming Names:

The testimony of Kimple, Silver, and Erwin, combined with intelligence from the FBI and countless other government sources ... meant that the last thing the Committee needed to do its job was to accumulate more names. Moreover, almost all the witnesses who named names publicly preceded their public testimony with a private, executive-session rehearsal, which means that the public hearings were indeed largely ceremonial. ... Names were turned on and off like water by the Committee's counsel and investigator, depending on the symbolic goal of the day. 

And of course, named names get published with alacrity.  What else can one expect of the commercial media? That they should give a fig about the private consequence of public gossip?  They don't have enough evidence to name these people themselves as miscreants, but they sure as hell have absolutely incontrovertible evidence that Michael Cohen says they are involved in shady dealings. The things said by Michael Cohen may not be true, but his saying them is news.  If those things are names of people with real lives, reputations, and families put at risk, all the better. "Run that tape again!  We don't ever get names.  This is unprecedented!" Yeah, because it's such a fucking awful thing to do.  But it's not unprecedented now.  Just like getting rid of the filibuster for judges, it's a bad idea, a one-off, a desperate measure for desperate times, and maybe not even appropriate then. Reid's (reversible but not reversed) nuclear option was right, the other firsts regrettable.)

Sadly, the whole Trump Presidency is a one-off, occasioned, I believe, by the GOP's sabotage of the an unready President. The question is whether we will learn from it not the President can do, but what the electorate must not do.

Update:  Here we are one day later, and Sen Durbin is on CNN being asked, in connection with possible disclosure of the Mueller Report, to comment on Rod Rosenstein's argument that the DOJ has no business saying anything publicly about any citizen against whom it cannot make a solid criminal case. That, of course, was the Democrats' view of Comey's sin, and the reason for their objection to the DOJ handing over its Hillary files to Congress. Yet, Durbin has no problem saying that "the precedent has been set" for not respecting Rosenstein's corrective advice, as if bad behavior is somehow locked in place by some invisible ratchet.  Literally, words fail me here, so I'll stop.

Crazytown, USA

So, what are we to make of this anonymous Op-Ed in the New York Times on September 5?  (I don't know if the link works for non-subscribers.)

A few questions:

What is a "senior official in the Trump Administration"?  The Times refuses to elaborate. What point is there to using words if you refuse to say what they mean?  I remember Robert Bork offering a thought experiment:

I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an inkblot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the inkblot if you cannot read it.

The Times has put an inkblot over the rest of "senior Trump Administration official means ...." rendering the term meaningless if we assume that the Times wouldn't publish an anonymous op-ed by anyone the readership would not view as senior anyway.  The Times's op-ed editor Jim Dao, in an interview with Brian Stelter of CNN, said:

"We were simply trying to abide by the standard that the Times in general would use when referring to someone who's not named."

On The Daily (the Times's podcast), he added, "I feel that we followed a definition that has been used by our newsroom in the past."  One hears the anguished moans of turtles all the way down.

FWIW, I will read "senior official" to mean "Trust us, this is big." I can't go all the way to "household name," given the ignorance shown in about 40% of American households.  But I'm thinking it's a honcho.  Still, there should be stated criteria, or there can be no "definition" that was used in the past, because that wouldn't have been a definition either.  On the contrary, there's no denying it's a non-definition definition.

Why an op-ed?

I heard Jeffrey Toobin say on CNN that this editorial is just an extended quote from an anonymous source.  Why didn't the Times op-ed editor say to the author "Go tell your story to a reporter"?  Here, Maybe the Times was baited by the "Fake News" rap.  The argument that Maggie Haberman, say, "made up" a source, or misquoted an unnamed source, is more likely to be believed by Trump's hoopleheads than the claim that the editorial board fabricated and author.  This is not an anonymous source; it is an anonymous author.  The Trumpsters have, of course, floated the idea that the author doesn't exist, but it just doesn't have the same oomph when you can't make what is said just one hated reporter's version of what an unnamed source has to say.

Why anonymous?

I am more sympathetic to the author's anonymity than many commentators. Some say the author - to whom I'll refer with male pronouns to save myself keystrokes - should step up, give his name, and resign. Well, what happens then?  One thing is that his best friends inside the White House become suspect, too. In another context, lawyers follow the maxim noscitur a sociis - a thing can be understood by the company it keeps. If we don't know who the anonymous author is, we don't know whom he eats lunch with or plays basketball with or sleeps with.  The "resistance"depends on its participants not being found out; identifying one may identify all.

Then there's the Murder on the Crazytown Express problem.  Let's suppose this author speaks for the entire coterie of resistors.  Maybe the "author" who presented himself to the Times is an avatar for the entire group, which effectively ghost-wrote the book, like Naked Came the Stranger.  It would be dishonest for the "author" to claim authorship.

Finally is a sort of fallacy of composition.  It may well be that the author, if he is a real person and not the voice of many, could leave with no real damage done.  But the standard critique we hear is that anyone who feels as the author does should resign.  Thus, if this author should go public and resign, then all of his fellows must resign, too.  Then who would be left to mind the store?

Why now?

Why expose this behavior, which, one must assume, will be rendered less effective going forward?  Maybe Woodward's book, in parts not yet shared with the public, exposes it.  (The book release is scheduled for 9/11/18.)  There are anecdotes  in the publicly known parts of the book about Gary Cohen and Sec. Mattis effectively deep-sixing Presidential actions, on the theory that, having the attention span of a goldfish, Trump will forget he even wanted to do what didn't get done.  Maybe he only wants to say things should be done with no particular interest in whether they get done.

But whatever efforts are being made quietly to keep the truck on the road, those efforts are impeded by their revelation.  Maybe the president will create some sort of Chief Compliance Officer for the staff, someone whose job it is to tell the Orange King when "Off with his head!" doesn't result in a head being off. 

That would not be a good thing.

It's the Self-esteem, Stupid

My favorite professor in college was Lee Benson. He was my favorite professor in college because he taught me the most useful thing I learned in college: the importance of self-esteem in human activity and, therefore, human history. 

I took a course on the American Civil War from Prof. Benson.  In it, he explained his view that the war was fought largely because the self-esteem of Southern politicians demanded they defend their honor.  The peculiar institution on which their wealth was built had been made illegal in parts of the country, implying a growing national consensus that said institution, and those who practiced it, were evil.  That notion could not stand.  People care what those to whom they are linked think of them, because it affects how they think about themselves.

Donald Trump lets ordinary Americans like themselves.  He says, expressly and by example, that it's ok to be ordinary, ok to resent holier-than-thou scolds, ok to think women and non-WASP men should know their place.  When was the last time a Democrat treated the salt of the earth crowd with the respect all self-respecting people demand (whether or not they deserve it)?  Hillary certainly didn't.  Hillary was a scold, supported by scolds.  For all its cool, "woke" just means "better than you" in a particular way.  People needn't be forgiven for defending the indefensible, but, as Chris Rock said about OJ, we don't have to condone an action to understand it.  No one goes into the voting booth thinking "I'm gonna vote for the guy who thinks I'm a benighted piece of shit."

The best politicians are aspirational.  They offer us the chance to be proud of ourselves for releasing our better angels.  But we haven't had an aspirational Democrat since Robert Kennedy.  Martin Luther King, Jr., was an aspirational leader.  In public, at least, he looked forward to a better day, without dwelling on the "isms" of the sinful.  If politics is the art of the possible, then it must be the art of getting people to change their ways without believing that they are bad people for having acted in the old way.  The Peace Corps used to run ads in the New York City subway.  Maybe they still do, but I'm talking about fifty years ago.  One ad featured this bit of bumper-sticker wisdom: The trick isn't getting the natives to dig the well; the trick is getting them to believe digging the well was their own idea.  The ad does not trade on any special characteristics of Peace Corps clients.  Natives are natives, wherever they live.

The role of self-esteem in electoral politics is not overt.  People may say they are voting for a populist demagogue because "I like his ideas," but they don't have the information to judge his ideas, so something else must be going on.  What they have is confirmation bias.  If a guy who says it's ok to be like me says it's ok to put tariffs on steel, then it must be ok to put tariffs on steel, because he was certainly right about it being ok to be like me.  Populists often emerge when the people are feeling badly about themselves.  And in a two-party system, the demagogue is helped if the other party's whole raison d'etre seems to be to make "people like me" feel bad about being people like me.

If I were running for President, I'd give serious thought to "Do America Proud" as my campaign slogan.  America doesn't need to be great again. America needs to be good again.  We haven't been good in quite some time, and the longer we spend being bad, the more tempting it is for scolds to try to shame us into action.  Only, the action they shame us into is the short-cut to ending shame: electing someone shameless.  How to make voters feel good about rejecting the man who made them feel good about rejecting Hillary is the challenge the Democrats - the challenge that anyone who cares about whether America remains true to Americanism - must face.

It will not be easy. 

About those Tariffs

The President, through his adviser Peter Navarro, has offered a powerful argument for tariffs on steel and aluminum: national security.  National security, no pun intended, is the ace of trumps in the policymaker's deck.  But it is so powerful an argument that only one counterargument is available: national security.  Everything else is just whinging about the tax that must be paid to cover the cost of the national security interest advanced by the tariff.   Orrin Hatch says that the steel and aluminum tariffs will be a "tax" on the American people.  Yes, Senator, they will be.  We pay overt taxes to fund battleships, so why not pay indirect taxes to protect strategically vital industries?  Hatch's claim is true; it just isn't relevant.

But, tariffs being a political football, all sorts of irrelevancies must be dealt with.  The mainstream media are fixated on jobs, not wonkery.  They don't really care about the national security argument.  They don't even understand it.  The President is implying, correctly in my view, that for our national security, we need to roll our own steel, just as we must grow our own staple foods and supply our own energy.  We must not depend on the kindness of strangers for our survival.  

Mr. Navarro has been making that case on the Sunday morning news shows, but the hosts won't engage him on that level.  They tell us instead that more people have jobs using steel than making it.  So what?  We don't need those jobs for our national security.  GM may sell fewer cars, and we may drink less beer.  We will need to adjust for those losses somehow.  But we must roll our own steel, says Mr. Navarro, so what else matters?  At least, that's what he could say.  Instead, Navarro denies that the downstream effects will be significant.  No point relying on the trumpiness of your card if you can rely on its just having a  higher face value than the other guy's.  And why admit you're imposing a tax if you don't have to admit it?  

To make matter worse, Mr. Navarro cannot resist offering an irrelevant argument of his own, viz., that the US is for free trade if it's fair.  That argument neuters his trump card.  Would Mr. Navarro be for fair trade if it meant importing steel rather than producing it?  What if China responded to our steel tariffs by offering, in exchange for their removal, to lower the tariffs on US goods and to enforce US intellectual property claims?  That would certainly make the tariffs look like a stroke of genius (for a while, but see below).  But it would give the lie to the principal argument advanced by the White House for the tariffs in the first place.  

Both Trump and Navarro are China bashers from way back.  Their concern was not that China was preventing us from making our own strategic goods.  Their concern was jobs.  As Navarro says, we are exporting our wealth and jobs under current trade rules.  Well, what do we care about more?  Would we give up the strategic goods argument if we could get our jobs and wealth back?  I don't understand the WTO's rules, and maybe the organization is just where the rest of the world unites to fight the US.  But, for some reason, WTO rules allow nations to impose tariffs for national security reasons.  Is Trump's national security claim just eyewash for the WTO?  Could the best argument for the tariffs be a lie?  Would Trump lie?  

It would be nice if the MSM could ask Mr. Navarro about the conflict between his national security argument and his free trade argument, but they don't understand the implications of the national security argument, so they don't.  Rather, they address the national security argument by pointing out that the tariffs will piss off our allies, which is bad for national defense in a different dimension.  That is the DOD's position, but, even if we take it at face value, is it reason enough for us not to make our own steel and aluminum?  

The problem, as with all things Trump, is execution.  Was there no way through diplomacy and negotiation to reach an agreement with our allies whereby we could make our own steel and aluminum?  Did this surgery have to be done with a cleaver?  Granted, our aluminum industry, in particular, is on its last legs.  But Trump's been in office for over a year.  What evidence is there that he has worked the steel and aluminum issue from a national security perspective with our trading partners?  

Sadly, the best argument for these tariffs is the least attractive politically.  That's why we will hear about what it is going to cost us in economic terms instead of what it is going to gain us in national security terms.  How do you measure the value of not having to rely on Chinese steel?  (China accounts for 2% of US steel imports, but it's not clear how much steel from other places is transshipped from China.)  What is the value of not having to rely on Canadian steel?  Brazilian steel?  It's very difficult to understand and evaluate the benefits of resource independence in the abstract.  And yet, that's the best reason for the tariffs, if they will, in fact, make us safer.

Meanwhile, what about Trump's real trade agenda, getting rid of the trade deficit that he says arises from unfair trade.  I doubt our feckless leader has ever heard of Robert Triffin.  Mr. Navarro should have heard of him, as Triffin's Dilemma lies at the heart of Mr. Navarro's misguided trade policy.  The "unfair" trade that creates our trade deficit is how we put dollars in the world so that it can be the world's reserve currency.  We translate the benefits of being the issuer of the world's reserve currency into benefits to US consumers via lower prices and interest rates (as our trading partners lend us back the dollars we pay them for things they send us).  "Fair trade" means no more exorbitant privilege.  Is that a good thing or a bad thing?  I don't expect these issues to be aired publicly.  But I do expect them to be aired privately within a White House with working brains at all levels.  I wonder if they were....

[Update a day later: Trump tweets that tariffs will be lifted if NAFTA is renegotiated.  In other words, act first, then negotiate to undo the damage.  Sounds like "Take the guns, then give them due process."  This is not a bad way to deal with a weak enemy.  It was how the Russians used the Cuban missile crisis to get rid of American missiles in Turkey.  The tariffs are a demand for ransom.  Mostly from our friends!  What happened to national security?  Oh, well.]  

USA Announces Phase 1 Clinical Trial of Modern Monetary Theory

I remember the Reagan tax cuts in 1981.  The Bill was called ERTA - the Economic Recovery Tax Act.  It was a Keynesian stimulus bill, with the stimulus largely coming from tax cuts, allowing people to keep more of their money to spend.  Trouble is, it created a significant deficit quite quickly, and it favored the rich.  So, a year later, Congress dealt with these problems by passing a Tax Equity and Fiscal Responsibility Act.  Who could complain about that - we like tax equity and fiscal responsibility, right?   But it wasn't enough.  In 1984, the deficit was still rising, and it became necessary to take the gloves and the sugar-coated names off.  We passed the Deficit Reduction Act, raising taxes again, or at least closing some "loopholes," i.e., revenue losers that some people don't like.  (Sorry, no link.)

Now, we get to do it all over again, maybe.  The recent tax law and today's budget agreement are budget-busters.  They will cause the deficit to grow.  Self-styled fiscal conservatives are aghast.  And yet, this time there is a new player in the game, a theory of money that says deficits and (monetized) national debt aren't inherently bad.  Fiscal conservatives' hearts may be in the right place, but their minds may be in the wrong century.

The thing is called Modern Monetary Theory (MMT). (Knock yourselves out.)  Here's the short version of it.  If there were no taxes, and the government just printed all the money it spent, the currency would go splooey, because no one would know that money was rare enough to use as a medium of exchange.  But nothing else bad would happen.  The country wouldn't go "bankrupt," because it could just keep printing money to pay its debts.  So, if the trouble with not taxing is that the money would become worthless, we must conclude that the reason to raise taxes is not to "pay for" things, but to protect the currency from the effect of paying for things with printed money.

This is a big deal, says MMT, because the amount of taxes necessary to protect the currency does not necessarily equal the amount of money printed by the government to pay its bills.  What if taxes fell a dollar short each year?  What would be the harm?  Surely, our economy can absorb on extra dollar every year without a loss of faith in our money.  Well more than that is counterfeited every year, and life goes on.  While it's easy to say that zero taxation would result in hyperinflation, it is much more difficult to say how much money could be printed without damaging the currency.  In other words, why is it necessary or wise to run a balanced budget when some things could be paid for simply by printing money?

MMT is not about borrowing money; it's about printing it.  Our laws don't allow the government to print money per se, but a cooperative Treasury and central bank can, together, effectively do so.  Thus, one "solution" to the increased interest cost of the new debt arising from the new deficits would be for the Fed to buy the bonds.  The Fed sends the interest it collects right back to the Treasury, effectively neutralizing the interest costs associated with those bonds. That's "printing money" for all intents and purposes.

The transmission mechanisms whereby printing too much money leads to inflation are beyond the scope of this memo (because they are beyond the scope of my knowledge), but the general drift is this: if the Fed buys up bonds, interest rates will fall too low, too much credit will be created, and too many dollars will soon be chasing too few goods.  Inflation isn't driven by the government spending; it is driven by the private credit created when government spending does not compete for the same private dollars.

But that's the thing: the problem always comes down to inflation, and inflation always requires a "shortage" of goods or services, including labor.  I put "shortage" in scare quotes because I mean only a scarcity relative to demand.  There may be no unusual bottleneck in production; hyperdemand can create a "shortage" even when the production facilities are operating perfectly well.

The heart of the MMT argument, then, is this: We live in an era of rapidly rising global supply of everything we need, including labor.  The growth in output is reminiscent of the deflationary days of the late nineteenth century in the US, when the money supply could not keep up with the output of goods.  MMT says that there cannot be inflation without shortage, and shortage will not happen even the face of a surge in demand, because global capacity is growing, and the time necessary to bring even more capacity on-line is shrinking.  Indeed, "supply" might even be reckoned to include the supply that could show up in six months if the need were known.  Mickey's broomsticks are running wild, and we need a mop to clean up the water they are bringing from the well; that mop is printed money, or, at least, so says MMT.

If the MMTers are right, the deficits created by the recent legislation will be "handled" by an economy that can easily absorb the resulting spending.  The issue is interest rates.  Will the Fed raise rates to cool the economy, causing an unnecessary recession, or will it accommodate the new budget by monetizing some of the debt and watching to see if the extra money in the economy actually causes inflation.  1937 suggests the former.  In that year, skittish conservatives looked up, saw their shadows, and pulled the fiscal plug on the New Deal.  A theretofore recovering economy saw five more years of winter until the exigency of war overcame our aversion to debt. 1982 and 1984 say the same thing. What if we had let the Reagan deficits run?  What did the supply curve look like back then?

But this is 2018.  All Congress has to do to test whether the new laws are unduly inflationary is nothing.  The Fed will be the key.  Will it monetize the debt and see if inflation happens, or will it assume that undue inflation will happen and end the trial of MMT that Congress is now conducting?  Time will tell.  For now, however, I would urge fiscal "conservatives" to inform themselves about MMT and ask themselves not whether they "like it" - they won't - but whether there is anything about it they actually disagree with.  In my experience, no one disagrees with the principles of MMT, but most people disagree with its conclusions.  What a piece of work is man...

Shit

The President wondered aloud, to people to whom it is never smart to wonder aloud, why America is letting in so many people from "shithole" countries.  Of course, the heads on the left exploded at the denigration (check your etymological privilege) of these places, but I believe their attacks on the President's attitude completely miss the point.  Immigration is supposed to come from shithole countries.  America is all about the tired and poor, the huddled masses yearning to breathe free.

Escaping shitholes is what made America great.  It's how my ancestors got here.  It's how everybody's ancestors got here, including the persecuted pilgrims and even the so-called "native Americans," who themselves migrated here from somewhere worth the trouble to migrate from when migrating was even harder than arriving two hours early for a flight.

Herr Drumpf says we should bring in more people from a place like Norway.  But, for some reason, people are not trying to sneak into America from Norway.  Maybe that's because, with all due respect to Disneyland, Norway is by all accounts the happiest place on Earth.  No, people are trying to get into America by any means necessary from places where people do not want to stay.  That's where immigrants come from.

Which brings me to the visa lottery.  I'm not sure why Trump is opposed to this program, but as an alleged branding expert, he should know better.  What better way is there for a country to demonstrate its wonderfulness than to run a raffle where the prize is a green card?  Does Russia have such a program?  I know a wonderful woman from Ukraine who got her green card through the lottery and became a citizen as soon as she could.  Ukraine is a shithole.  It's people aren't brown, but it's a shithole.

So, yes, Trump's comments were racist, but there's nothing new there.  We already knew that he favored racist policies that appeal to his racist base.  And I guess we already knew that he was stupid.  But still, if we have to pick one thing about shitholegate to go apeshit over, I nominate the man's utter ignorance of what immigration is about, what (not where) we came from, and what our generosity of spirit means to our national image and, therefore, at the end of the day, to our national self-esteem.  Having elected this fool is embarrassing enough.  But to have our noses rubbed in it daily by our leader's noise and our leaders' silence is really a bit much.

Shit.

It's a Wonderful Party

I get it now. Frank Capra is directing our politics. It's 2008 and, having let a skinny black kid with a funny name ascend to the highest office in the land, the GOP is considering political suicide.  The party intends to destroy itself in two ways. First, it will gerrymander Congressional districts so that Republican idiots can win seats by appealing only to other Republican idiots. Second, it will steadfastly refuse to act as the loyal opposition to the aforementioned SBKWTFN. As a result, the party will become politically dysfunctional and ideologically irrelevant.

But the GOP's guardian angel has come to show McConnell, Ryan, et al. how the world would be without it. Eight years of ineffective government, Harry Reid using the Nuclear Option to get lower court judges confirmed, an infrastructure that continues to crumble, and, then the coup de grace - the occupation of the party's empty husk by a snake-oil salesman who has seen the potential of appealing to idiots.

About Trump replacing Obama, wags have been saying that orange is the new black,  But more important, anger is the new savvy.  If you can get the torch and pitchfork crowd to vote for you, you don't need soccer moms.  And you can get the mob to follow you if, in fact, one party has gone off in search of every last vestige of unfairness anywhere in the land, and the other has inexplicably shot itself in every vital organ it could find.

Donald Trump is every sane American's nightmare.  Not just because he is so bad, but because his election was not a fluke.  We don't deserve better.  We applaud the gerrymandering that seems so good for our parties, whichever one is doing it in our name, never thinking that anti-democratic behavior might be, well, bad for democracy.  We believe it's better to bequeath crumbling roads to our kids rather than the obligation to pay for good ones.  We have sequestered the money our military needs. We elected bozos, and now we have a bozo-in-chief.  It's not only he who is uniquely unqualified.  So are we.

Sadly, the GOP does not yet appear to be losing its resolve to do itself in.  Paul Ryan still grits his teeth and says nice things about the usurper.  John McCain still points to the few things Trump's national security team has done right.  (That part of the screenplay needs a rewrite: in addition to the President going off half-cocked on twitter, Mike Flynn should have remained in charge of defense until he could sell us out in a more noticeable way to make the point.) 

Yes, there are straws in the wind - Sen. Corker, for example.  But is the lesson being learned? I suspect not.  In the final reel, Democrats will realize that their apathy and pique made Trump possible.  They will come out to vote and teach the Republicans the lesson that they seem unable to draw from Trump's awfulness.  Whether there are any better angels left in the GOP by then remains to be seen.

On Nativism

I am not sure what to make of Alt-Right.  I'm a third-generation American Jew.  To blacks I'm white and to "Whites" I'm not.  I was born here to people born here.  I am an unhyphenated American.  My ethnicity has nothing to do with it.

"Nativism" has been getting some bad press recently.  But I'm a nativist.  I believe that American culture - a common language, certain common values, a commitment to self-government and individual liberty - is essential to the society to which I belong.  The staunchest opponents of American nativism today seem to me, ironically, to be the Americans least comfortable with how Native Americans were treated in the past.  Can we say that those Native Americans who militantly opposed the European colonists were wrong to do so?  Do we have any doubt that they had a reason to be worried or the right to defend their culture from invasion?  Was Sitting Bull a racist?  What, exactly, distinguishes the noble Native American who fought Custer from the hated racist who would fight multiculturalism today?

European America is a multi-ethnic society, but it is not a multi-cultural one.  (I find the idea of a multi-cultural "society" oxymoronic.)   The USA is a melting pot.  Why should we Americans share our societal bounty with people who do not wish to become culturally American?  ESL, sí, bilingualism, no. Yes, we have subcultures, and that's fine.  If black people want to jump the broom at weddings, that's their business; I recall stomping a flashbulb.  Just so we agree that monogamy is right and wife-beating is wrong.  (The polyamorists among us are outliers.  There's always room for outliers.  That's part of our culture.)

It's easy to see how colonists - real, alien colonists - can pose a threat.  But what are we to make of cultural invasion?  We are already ethnically and spiritually diverse; everyone coming here already "looks like" some large group of assimilated Americans.  And yet, some people coming here are different from us natives.  Shall we not defend our culture from these invaders?

People who come here with no intention of learning English should not be welcome here.  Language has semiotic significance way beyond the simplicity of communication.  Our shared language is how we share our culture.  By choosing not to speak and understand it, you announce that you do not care to be one of us.  Yet you expect us to provide the blessings of liberty to you as if you were the posterity of our founders.  But our founders' posterity speaks English.

Why would we admit anyone who believes America should be subject to Sharia law?  Is the arrival of such a person not an invasion?  This is the problem posed by the horrid Donald Trump.  He has latched onto a form of nativism that subsumes all of what I would call appropriate cultural nativism, and then altered it to appeal to those who don't really understand that ethnicity and nominal religious affiliation are beside the point.

Race and religion become screening proxies for bad ideas because people can lie about their ideas but not their ethnicity.  If we can keep out all the "mud" people and all the Muslims, then we will keep out every non-White person who would not assimilate, i.e., most of those who would not assimilate, which is enough.  We'd keep out a lot of good people, too, but those denied admission are not marked for extermination, just sadly excluded because we have no better screening tool.

But it is in the nature of our species not to believe in proxies.  We are not capable, in large numbers, of understanding that we might choose to ban all Muslims simply as an engineering solution to the problem of excluding bad Muslims.  To resolve this cognitive dissonance, we simply assume that all Muslims are, in fact, bad people.  It's easier that way for a large number of human beings to implement an exclusionary policy that may be necessary to cultural survival.

The flip side of this argument is the claim that multi-culturalism does not threaten native culture but seeks rather to enhance it.  But we come back to human nature.  The concept is fine, but the reality is balkanization and, eventually, a battle for cultural primacy.  People want to be "normal," and that requires norms.  Multi-culturalism eschews norms.

This, then, is the dilemma of philosophical nativism: if it isn't racism, it doesn't happen.  And if it is racism, well, then it's racism.

President Doughtard Does the Dozens

[It's my blog, and I'll be un-PC no matter how many thousands of followers it costs me.]

Kim Jung Un's Korean language insult to our Feckless Leader has been translated as "dotard," an old fool, someone in his dotage.  But I prefer the homophone "doughtard," which does not exist, but would exist if it were not politically incorrect to attach "tard" to things, and, if it did exist, would mean someone with more money than brains.

I googled "doughtard" before writing this and discovered that it already has its own hashtag; so obviously apt a pun was hardly going to go unpublished.  I don't use the twitter, but I hereby virtually retweet any tweets that call our Head Twit a "doughtard."

Watching Trump play the dozens with Kim is more than dispiriting.  This is not a school-yard where young males sort out their pecking order by creative public name-calling.  I suspect that Trump senses the advantages that accrue to the best blusterer in less august settings, and, having no sense of place or occasion at all, he acts as if those same advantages apply on the world playground.  He is wrong.  And he is dangerous.  He has more money than brains - no matter how much (or little) money he actually has.

While I bemoan the President's name-calling, I admit that the urge to label him is overwhelming.  There must be a way to capture the essence of this guy with a trope we have all seen. The common expression "What's it like to ...?"   is literally deep.  We know what we know, and we have experienced what we have experienced.  We want to know which of the things in our personal database we should consult to grasp this unknowable thing.  Name-calling is one way of doing that, and, because our need to understand the President is so great, the need to put a "what he's like" label on him is powerful indeed.

Good communicators are experience brokers.  They look for a name that matches the man and matches something in their own experience that matches something in their audience's experience, too.  I am blessed to have a small enough audience that I don't really have to go for a common denominator.  I can find my label and apply it because it works for me, and let readers take it or leave it.

So, I keep coming back to "Rough Beast," as in:

The Second Coming  By William Butler Yeats

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst   Are full of passionate intensity. 

Surely some revelation is at hand;
Surely the Second Coming is at hand.
The Second Coming! Hardly are those words out
When a vast image out of Spiritus Mundi
Troubles my sight: somewhere in sands of the desert
A shape with lion body and the head of a man,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Reel shadows of the indignant desert birds.
The darkness drops again; but now I know
That twenty centuries of stony sleep
Were vexed to nightmare by a rocking cradle,
And what rough beast, its hour come round at last,   Slouches towards Bethlehem to be born?   

[Because poets do tricky things with orthography, I note that the color was added by me for emphasis.]

Or in terms our literarily challenged President might understand, Yo' mama, Doughtard.

President Chemo

I must applaud President Trump for his deal with the Democrats on Harvey aid and the three-month delay of the fiscal cliffs before us.  The most interesting thing about the deal is that Republicans fell in line behind it.  Why didn't McConnell and Ryan say "Sorry, Don, but we're not going to bring that bill to the floor"?  My guess - they don't want to say that.  My guess - they do want to return to regular order.  My guess - they don't want an approval rating of 19% or whatever it is.  All they needed was political cover, and the President, nominally of their own party, has given it to them  This is how the fever breaks in American politics.  If it breaks.

The Republican party has destroyed itself, and race remains at the heart of the problem.  When Lyndon Johnson and the Democrats signed the Civil Rights Act in 1964, the GOP became the party of the unreconstructed South.  The votes were there, and, having no scruples, Richard Nixon and his pals went for them.  A voting (but not philosophical) coalition arose among white voters, even those who hated what the Yankee business interests in the party actually stood for.  From Nixon onward, the GOP has been on the wrong side of domestic history, bailed out in the 1980's by being on the right side of world history.   Now, the party is on the wrong side of everything, all because it has put "winning" over deserving to win.

No doubt, the Democrats lowered the bar, and they get no praise for becoming the party of the disenfranchised and no one else.  The Democrats abandoned Big Labor and its members in favor of victims of "oppression."  Oppression is a bad thing, but a party devoted to its remediation is a makeweight, a group whose support one seeks - like the Greens, or the Libertarians - not one of two "major" parties.  Yet here we were, with one party representing racists and plutocrats and the other representing victims and moralists, and nobody representing Joe Sixpack, except to the extent he was also a racist or a moralist.

Without big strategies, the parties descended into color war - winning and losing as institutions and not as ideologies.  The Red side - our right wing, ironically - won via Operation Red Map.  Now, our local and Congressional elections can be won by the biggest wack job on the right, because the winner of the Republican Primary doesn't need swing voters. That sends Tea Party morons to Congress and makes Congress dysfunctional.  Which gives the very same voters who elected the Tea Party morons the idea that "Congress" is broken, but not because their bozos are breaking it.

And so the stage is set.  Everyone hates Congress, but no one blames his or her representative.  Someone has to come along and tell the idiots who elected the Tea Party that they have elected morons without telling them that they are idiots for doing so.  Trump pitched his candidacy perfectly for that purpose - racist enough to get the white vote but also anti-establishment enough to peel off the unorganized mass of opponents, several of whom are more competent and deserving of high office, but none of whom would have had the balls to do what Trump didn't need any balls to do last week.

Trump is chemotherapy for the cancer of intransigence that afflicted the Congress.  He is going to make Congress work by freeing non-Tea-Party Republicans to compromise without being primaried.  The toxic side effects include denigration of just about everything that makes America great - free speech, checks and balances, the truth - but that's how sick we have become.  Trouble is, the side effects won't be felt for years, so we may get eight years of what we only needed for one week: someone who says it's ok to compromise.  Because, make no mistake, by going along with the Trump/Schumer plan, the GOP is compromising, and the voters are going to like the result.  Especially if the next step is elimination of the GOP's annual hostage-taking when it comes time to raise the debt ceiling.  (Sad to see Ben Sasse lament the loss of his party's ability to threaten to kill our credit rating in order to get its way.  And he calls himself a patriot.  Yikes.)

So, score one for President Chemo.  Perhaps Congress will figure out that he will sign anything he can take credit for, and praise everyone who participates in getting it for him, including "compromising" Republicans.  That shifts the game away from satsifying the GOP base to satisfying the electorate.  At least, it would, if Operation Red Map had not been so successful.  It remains to be seen whether the GOP majorities in gerrymandered districts are ok with compromise once "their" President has blessed it.  One hopes so, but only time will tell.