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The Lesson Ryan Won’t Learn

For seven years, Congressional Republicans have been obsessed with the Affordable Care Act – that is, with their desire to repeal it. After Republicans took majorities in the House of Representatives in 2010 and in the Senate in 2014, each house voted almost innumerable times for bills that would repeal Obamacare. Republican unity was ensured by the certainty of President Barack Obama’s veto, which meant that voting for ACA repeal was an act of opposition to President Obama and not an act of policy-making. While Obama remained president, Obamacare repeal bills had no substantive connection to health care policy.

Now of course Donald Trump is president. But Obama’s presidency is still recent enough that repealing Obama’s signature legislative achievement still operates as an act of opposition to the former president, feeding conservatives’ deep psychological need to erase every legacy of the Obama presidency. But since President Trump will sign pretty much any bill that Congress sends him under the rubric of Obamacare repeal, Republicans are now responsible for the policy consequences of repeal.

Here is what it looks like when Republicans take responsibility for ACA repeal: 24 million fewer Americans would have health insurance in 2026 than under Obamacare. Not surprisingly, the Republican “repeal and replace” bill was enormously unpopular: just 17 percent of Americans want the Republican bill to become law. It’s hard to find any piece of legislation that unpopular – Obamacare itself never dropped below 37 percent. Even in the reddest of red states, Republican representatives and senators were met at town halls by firestorms of opposition to ACA repeal.

Faced with a humiliating loss in the House of Representatives, Speaker Paul Ryan today withdrew the ACA “repeal and replace” bill.

The most important thing to understand about the House bill was that it wasn’t about improving Americans’ health care. Obamacare opponents have dressed up their opposition with talk about the cost of premiums, deductibles and co-pays, but that wasn’t truly their concern. If costs were the true concern of conservatives, we’d have heard lots of discussion of questions like these: are costs higher under the ACA than they would have been without the ACA; are premiums going to rise every year as much as they did last year, or was that (as many economists believe) a one-time correction for the fact that premiums rose very slowly in all the previous years of Obamacare?

The hard-right Obamacare opponents dressed up their opposition with talk about “freedom” – their professed concern being that consumers should have the freedom to buy insurance that covers what they want to cover. There’s some appeal to the proposition that men shouldn’t have to pay for maternity insurance. But the idea that consumers should have the “freedom” to buy insurance that doesn’t cover hospitalization and emergency room care is hard to defend.

In fact, the best proof that the goal of ACA repeal was not to improve health care was in the deal that Trump and Ryan made with House conservatives earlier this week – the repeal bill was revised to eliminate the mandate that insurance policies cover “essential health benefits.” The ACA requires that health insurance policies cover ten essential health benefits: outpatient services, emergency room care, hospitalization, maternity, mental health and substance abuse services, prescription drugs, rehabilitative services, lab tests, preventive care such as vaccines, and pediatric vision and dental care.

Not covering these services would certainly make health insurance cheaper, just like auto insurance would be a lot cheaper if it didn’t cover car crashes. It would be cheaper, because it would be almost worthless.

ACA opponents love to repeat their mantra, “Obamacare is a failure.” The problem is, Obamacare is a success in several important respects.

First and foremost, at least 20 million more Americans have health insurance than before Obamacare. Republicans like to claim that deductibles and co-pays are so high that the insurance has little effect, and there is some truth to that for a small slice of the insurance pool: those who don’t have group insurance policies through their jobs, and whose income is just above the maximum to be eligible for federal subsidies. People in that position have little choice but to buy the cheapest possible individual insurance policies – and of course the cheapest policies provide the least benefits.

There are a number of possible solutions to that problem. But the Republican proposal to convert premium subsidies to tax credits and then slash them drastically is no solution.

Those who gained health insurance under the ACA are more financially secure than they would have been without it. Medical debt and medical bills in collection have declined. The reduction in unpaid medical bills has to be good for the health care industry as well.

To the extent that children and young adults have gained access to health care, the ACA constituted an important measure against inequality. Employment opportunity and financial security throughout life depend in very large part on access to health care and education in youth. Access to neither should depend on the accident of birth.

Incidentally, the ACA has reduced the federal deficit below what it would have been without the ACA. This is because the ACA has reduced the rate of growth of health care costs generally, including those health care costs paid by the federal government. Federal health care cost savings under the ACA have been greater than the federal costs of the ACA – which means that the savings have been considerable.

The ACA does have problems. The individual health care insurance market remains almost impossibly complex, confusing to all but the most expert among consumers. And American health care remains by far the most expensive in the world, without achieving anything close to the world’s best outcomes. (For example: Cuban life expectancy is essentially equal to ours, but Cubans pay 93 percent less for health care than Americans do.)

Despite the individual mandate and the tax penalty that backs it up, young, healthy Americans have not signed up for insurance in sufficient numbers to maintain a sound risk balance in the insurance pool. It’s fair to wonder how much of this is due to the constant trash-talking of the ACA by its opponents, now including the President of the United States. It’s also fair to wonder how much is due to the expectation that the now-predominant Republicans would repeal the individual mandate and the tax penalty.

Those speculations aside, the problem has a number of fixes, perhaps the simplest being to increase the tax penalties.

Finally, the state exchanges for individual health insurance policies have not sustained a desirable level of competition – hundreds of counties now have just one provider in the exchanges. It’s impossible to separate out the inherent effects of the ACA from the insurance companies’ expectation that the ACA was about to be repealed. In either event, there surely are fixes to this problem that don’t involve scrapping the exchanges altogether.

Medicaid expansion has been a huge success. Medicaid is easier to understand than the individual policy market, it is government-paid (not single-payer, like Medicare, but jointly federal- and state-paid, and largely state-administered). The ACA made Medicaid benefits available to more Americans – although 19 states opted not to take advantage of it.

The only problem with Medicaid expansion is that it costs money – federal tax money. And therefore ACA opponents proposed not only to prohibit more states from agreeing to expanded Medicaid, ACA opponents proposed to slash Medicaid funding and convert the remaining funding from payments for medical care to block grants to states.

Congressional opposition to the ACA has been largely ideological, not operational. Conservatives objected to the ACA’s expansion of federal authority, increases in federal taxes, and federal intrusion in to the free market. The opposition was not founded on concern for the quality or availability of health care.

Since their problem was ideological, Republicans didn’t even try to get Democratic support for their “repeal and replace” solution to that problem. (Republicans often accuse President Obama and Congressional Democrats of enacting the ACA without Republican support, but that wasn’t for lack of trying. Democrats tried hard, for more than 18 months, to work out a bill that Republicans would support. Only when it became clear that Republicans would support no bill that substantially expanded health care did Democrats go it alone.)

What Republicans have failed to appreciate is that their constituents aren’t as ideological as they are. Their constituents want affordable health insurance, and if “freedom” means the right to choose between health care and food, their constituents will gladly do without a little freedom.

The lesson that Republicans could learn from this “repeal and replace” debacle is that they need to re-focus from negating the Obama presidency to delivering for voters – and in this case, that means making health care better, cheaper, or both. Republicans could decide to work with Democrats – to improve competition in the state exchanges, for example.

But they won’t. Neither the Congressional Republican leadership nor President Trump is anywhere close to giving up the ambition of undoing the Obama presidency. Maybe the 2018 mid-terms will sober them up. But I’ll give you odds that today’s “repeal and replace” fiasco won’t do the trick.



Whole Lot of Nothin’

The House of Representatives Permanent Select Committee on Intelligence is supposed to be investigating the scope of Russian interference in the 2016 presidential election, whether Donald Trump’s campaign worked with the Russians, and the facts and circumstances of classified leaks to the press. The committee’s investigation has suffered some “scope creep,” and now also includes whether there was any basis for Trump’s allegation that then-President Barack Obama “had my ‘wires tapped’ in Trump Tower” before the election.

Today, the Republican Chairman of the House intelligence committee, Devin Nunes, announced at a press conference that members of the Trump transition team had been picked up “incidentally” in surveillance authorized by the Foreign Intelligence Surveillance Act court. His intention was to show that Trump’s allegation against Obama was well founded.

Trump immediately claimed that Nunes’s allegation vindicated his accusation of Obama. The right-wing Internet media quickly followed suit. But the Nunes allegation did no such thing.

“Incidental” capture of information about a person other than the target of the surveillance occurs when the person comes up in the course of surveillance of the actual target. Monitoring the communications of a target necessarily involves hearing or seeing communications of other people with the target – if you wiretap a target’s phone, you’ll hear both parties to all of the target’s conversations.

If a member of the Trump transition was “incidentally” picked up pursuant to a FISA warrant, that means either that the target of the warrant had a communication with the transition team member or that the name of the transition team member was mentioned during the communication, either by the target or by the person the target was talking to.

The monitored communication is transcribed for review by investigators. The name of anyone not a target – at least of any American not a target – that appears in the communication is supposed to be “masked.” “Masking” a name protects it from being read. If necessary to understand the communication more fully, the name can be “unmasked,” but supposedly only a few very high-ranking officials have the authority to order “unmasking.”

Nunes asserted that the Trump transition team member or members were picked up “incidentally.” Assuming that is correct, that means that Nunes knows that the people picked up were not themselves targets of FISA surveillance warrants. Nunes further claimed that the names were “unmasked,” implying that the names were properly “masked” in the original transcription, but “unmasked” at some later point.

One possibility is that the names were properly unmasked – Nunes offers only his own assessment that the names had no obvious intelligence value. The other possibility is that the names were improperly unmasked.

None of the scenarios implies in any way that President Obama “had [Trump’s] ‘wires tapped’ in Trump Tower.” That accusation was and remains a baseless lie.

First and foremost, Nunes’s own allegation is that Trump transition people were picked up “incidentally” in the course of legal, court-authorized surveillance of other people’s communications. Nunes’s allegation does not imply that anyone in the Trump transition, let alone Trump himself, was the target of surveillance.

Second, although Trump has tried to fuzz up his original accusation against Obama by saying that “wiretapping” refers to surveillance generally, his accusation was unavoidably specific that the surveillance occurred “in Trump Tower.” Nunes’s allegation explicitly related to surveillance of foreigners who were not part of the transition, and, presumably, were not in Trump Tower. (It would hardly help Trump’s case if targets of FISA surveillance warrants were using Donald Trump’s “wires” in Trump Tower.)

The Trump disinformation machine will spend the next few days furiously muddying the waters, claiming that this new information proves that the Obama Administration (no longer President Obama personally) was surveilling the Trump campaign (no longer Donald Trump personally). It is important that the mainstream media not fall into that trap.

There are other questions, though. If Devin Nunes thinks that his new information is relevant to Trump’s accusation against Obama – which is under investigation by his committee – why did Nunes share the information with the White House and not with the rest of the committee? The ranking Democrat on the committee, Adam Schiff, told MSNBC that he learned of Nunes’s allegation by watching Nunes’s press conference on TV.

Nunes indicated that he viewed the supposedly damning documents in a secure location, implying that they were shown to him by members of the intelligence community, which is part of the executive branch. Why would members of the executive branch bring to light material that allegedly supports statements by their president by showing them to a member of Congress, instead of to the President?

If the documents included names that had been improperly “unmasked,” was it legal and proper to show them to Nunes? If the committee is going to pursue leaks that occurred during the Obama Administration, in all fairness isn’t this also a leak, and shouldn’t the committee investigate it?

Most importantly, has Nunes fatally undermined the independence, integrity and credibility of the House intelligence committee’s investigation? The Trump campaign is the target of potentially the most important aspect of the investigation: whether the campaign in any way cooperated or coordinated with the Russian interference into our elections. An investigation that feeds information more quickly to its targets than to its own investigation team is not so much an investigation as it is a cover-up.

Nunes’s ability to conduct a credible investigation was already deeply suspect. He himself was a member of the Trump transition team. He has oddly insisted that his committee will not seek access to the Trump tax returns that could reveal the extent of Trump’s financial debts and obligations to Russian interests. He agreed to a Trump White House request that he speak to reporters to challenge a report about Trump campaign connections to Russia. He has declined to include former National Security Advisor Michael Flynn’s conversations with the Russian ambassador in the committee’s investigations, opining that by those conversations Flynn did our country a favor for which we should thank him, not investigate him. Nunes said that Flynn’s conversations occurred after the election, so were not relevant to the investigation. But Nunes’s allegations today explicitly concerned the Trump transition, not the Trump campaign, and therefore also post-dated the election – still, Nunes thought these allegations relevant to Trump’s claim that Obama wiretapped Trump Tower before the election.

To me, it is axiomatic that a Trump transition official cannot credibly lead an investigation into the Trump campaign. This would be true if the investigation concerned something relatively mundane, like campaign finance impropriety. But the subject of this investigation is anything but mundane. At a minimum, the investigation must determine the scope of our exposure to Russian influence over future elections, and if that means that the propriety of President Trump’s own election falls into question, so be it.

But even more fundamentally, the investigation must determine whether the campaign of one of our two major parties assisted, or even just knew about, Russian interference – whether, in short, a presidential candidate colluded with a hostile foreign power to corrupt an American presidential election. If so, this is Watergate plus treason – the most serious assault on American democracy since the Civil War.

A few Republicans have joined Democrats’ call for investigation of the Russian election interference and Trump campaign collusion by an independent, bipartisan commission along the lines of the 9/11 commission. Nunes’s actions today puts Republicans in Congress to the test – whether at the end of the day the security of our country and the integrity of our democratic institutions is ultimately more important to Republicans than the partisan advantages to be gained by continuing to downplay the Russian cyberwar against us.

Wildfire on the Great Plains

The southern Great Plains endured an unusually wet summer last year, followed by a very dry winter this year. That combination is dangerous – the summer rains thicken the growth of prairie grass, which the winter dries to kindling. By January, Kansas had already endured three large wildfires – a “large” wildfire being one that burns at least 300 acres of grassland.

On March 4, the Lawrence, Kansas, Journal-World ran a prophetic Associated Press article describing fire officials’ worry that the potential for wildfire this year was worse than last year, which saw record wildfire destruction in Kansas. The volunteer fire chief of Marquette, Kansas, told the Associated Press, “It’s really, really getting dry out there, but holy cow, there’s so much fuel out there on some of these pastures it’s just unbelievable. If we get the wrong wind, we could have some big problems.”

The “wrong wind” came sooner than the fire chief might have hoped. The next day, March 5, gusting winds fed a number of wildfires across Kansas. Over the next few days, wildfires set new records for destruction: more than 1,500 square miles of grassland were burned across Kansas, Oklahoma, Texas and Colorado, including the largest single wildfire in Kansas history – 861 square miles, versus the previous record of 488 square miles in 2016. Scores of homes and barns were lost, thousands of head of cattle killed, and seven people died – from the three Texas ranch hands who died from smoke inhalation and burns while trying to save their cattle, to the 63-year old Oklahoma woman who died from a heart attack while fighting the fire alongside her husband.

The worst devastation was concentrated in Clark County, Kansas. An estimated 85 percent of the county’s land was burned, and more than 3,500 head of  cattle were lost – first in the fire itself, then afterward as ranchers shot animals that were found alive but badly burned.

It is perhaps excusable, given all else that is going on just now – but still, perhaps not – that this story of devastation and loss has gotten so little attention in the national media. As far as I can tell from internet searches, the first national report of the wildfire came in today’s New York Times, two weeks after the fires raged through the plains.

But it’s not only the media who have paid little attention: the Trump Administration has been MIA. As lame as was George Bush’s response to Hurricane Katrina, he did inspect the damage two days after the hurricane hit New Orleans. A Kansas State University agricultural agent put it this way: “This is our Hurricane Katrina.”

The governors of Kansas, Oklahoma and Texas have declared states of emergency, but the federal government has not. Private aid has begun to flow, in forms from donations of hay to feed the cattle that survived the fire to donations of money to pay for the funerals of the dead ranch hands. But no federal aid has arrived.

The Times reports that devastated ranchers are eligible for assistance from the federal Department of Agriculture: up to $200,000 to replace a rancher’s burned fences; up to $125,000 for livestock losses. One Clark County rancher estimates that replacing 200 miles of burned fencing will cost him $2 million; the auction value of his lost cattle (that is, not including their breeding value) is another $1 million. “Like many ranchers,” the Times notes, this rancher insured his house and his ranch equipment, but not his livestock or his fence, because premiums would be “impossibly expensive.”

President Donald Trump’s budget outline for fiscal year 2018 calls for a 21 percent reduction in the Department of Agriculture budget. None of the aid programs that are now critical to southern plains ranchers are on the list of programs Trump proposes to eliminate, but they may well be on the list of programs Trump proposes to reduce.

Some of us believe in a vigorous federal government, not just in national defense and national security, but also in national health, education and welfare, and we’re willing to pay the taxes that are needed to sustain such a federal government. High on the list of the priorities of a vigorous federal government must always be disaster relief. When terrorists strike New York, when a hurricane devastates New Orleans, or when wildfires decimate Clark County, a vigorous federal government is quick to assist.

Even if the ranchers of Kansas can make good on their staggering financial losses, they are facing years of clean-up and restoration. Ranchers are facing what the Times called “an existential threat to a way of life that has sustained them since homesteading days” in the late 1800s.

It makes no difference that 83 percent of Clark County voters cast ballots for Trump. It is not relevant whether Clark County voters see a connection between a vigorous federal response to prairie fires and a vigorous federal response to urban problems. Ranchers on the Great Plains have suffered a terrible blow, and we should be able to count on our federal government to go to their aid.

Kansas ranchers are feeling forgotten by our federal government and by a president who ran on a campaign to remember our “forgotten men and women.” They’d like a little financial assistance, of course, but at this point even just a little recognition would be nice. Trump could pay a visit, one rancher suggested. Or he could mention the disaster in one of his tweets: “Two sentences would go a long way.”


The Texas State Girls Wrestling Champion is a Boy

You can blame North Carolina – they started it.

On February 22, 2016, the Charlotte, North Carolina City Council passed an ordinance that expanded protections against discrimination based on sexual orientation, and added new protections against discrimination based on gender identity. One provision of the ordinance specifically allowed students to use the bathroom that aligned with their gender identity instead of with their sex at birth. The ordinance was to become effective on April 1, 2016.

The North Carolina governor and legislature were not amused. The image they pandered to the public was of adult male sexual predators using the law to gain access to female restrooms in order to molest North Carolina’s girls. The notion has its comic aspect, since it logically depends on the premise that child molesters wouldn’t dare enter girls’ bathrooms without the cover of the Charlotte ordinance. Child molesters don’t care so much about felony rape laws, but they are apparently quite persnickety about the legality of their access to bathrooms.

Then-Governor Pat McCrory (since unseated by now-Governor Roy Cooper) got the North Carolina legislature to enact a bill called H.B. 2, mandating that the use of single-sex bathrooms in public buildings be determined by the sex recorded on a person’s birth certificate.

The law went considerably farther than that, for instance prohibiting North Carolina cities from taking measures to protect lesbian, gay and transgender people that exceeded North Carolina’s state laws on the subject. Since North Carolina law allows discrimination on the basis of sexual orientation or gender identity, H.B. 2 effectively repealed existing local protections and barred future protections as well. (For those interested in the reasons that H.B. 2 is unconstitutional, I refer you to the U.S. Supreme Court’s 1996 decision in Romer v. Evans. A state may not target one segment of its population by depriving them of the opportunity to lobby for, and win, municipal legislative protections.)

H.B. 2 was introduced, passed by both Republican-dominated houses of the state legislature, and signed by Republican Governor Pat McCrory, on a single day – March 23, 2016. Reaction was fast, and furious. Rock stars like Bruce Springsteen and Ringo Starr canceled concerts in North Carolina. Corporations canceled conventions in North Carolina. The National Basketball Association pulled its 2017 all-star game from the state. Apple, IBM, American Airlines, PayPal, Dow Chemical, Google, Bayer, and a host of other corporations strongly opposed H.B. 2. Five states and 37 municipalities banned non-essential travel to North Carolina on governmental business. (And really, when would travel to North Carolina ever be “essential” for governmental business?)

All told, reaction to H.B. 2 cost North Carolina thousands of jobs and tens of millions of dollars, contributing to McCrory’s narrow electoral loss last November.

*          *          *

Growing up in the Dallas-Fort Worth area of Texas, young Mackenzie Beggs felt that she wasn’t really a girl. She told her friends to call her Mack, and she told her grandmother she was going to be a man when she grew up.

At 15 years old, Mack Beggs began the transition to male, which included taking testosterone supplements. Mack “fell in love” with the sport of wrestling, and tried to join his high school’s boys wrestling team. But the Texas regulatory body in charge, the University Interscholastic League, ruled that he had to join the girls team, since his birth certificate said he was a girl.

Mack is now 17 years old. Without detracting in any way from the discipline and rigor of Mack’s athletic training, there can’t be any doubt that his testosterone supplements gave him an edge against the girls he was forced to compete with. This week in Houston, Mack won the girls state-wide high school wrestling championship in his 110-pound weight class.

Many cheered Mack on, but some were remarkably bitter toward Mack personally. One wrestler’s mother was quoted in the Washington Post: “She’s standing there holding her head high like she’s the winner. She’s not winning. She’s cheating.” A local lawyer went to court to try to get Mack suspended from the competition – which, the lawyer acknowledged, was not the competition Mack had wanted to enter in the first place.

The lawyer naturally argued that Mack’s testosterone supplements gave him an impermissible advantage over his competitors. Testosterone use by Texas scholastic wrestlers is barred except for medical reasons. The lawyer argued that since the American Psychiatric Association had eliminated “gender identity disorder” from its catalog of mental disorders, Mack’s use of testosterone was not medical. The lawyer, who insists on referring to Mack as “she,” conveniently overlooked the fact that the APA replaced gender identity disorder with “gender dysphoria.”

The APA explicitly regards gender dysphoria as a mental disorder; one of the treatments is gender reassignment. Gender reassignment is what Mack Beggs is doing, and testosterone supplements are part of it. He tried to join the boys wrestling team, according to his gender identity, but was given a choice between wrestling girls or not wrestling at all.

I think we can start from the premise that you don’t get to have things both ways. If the rule is that all people forever belong to the sex recorded on their birth certificates, then it seems to me that the rule has to apply equally to bathroom use and high school wrestling team membership. If you’re uncomfortable with transgender females getting a gander at the girls in the female bathrooms, then you have to get comfortable with transgender males mashing their sweaty bodies against the bodies of female wrestlers. Conversely, if you’re not too keen on the body-mashing, then you need to get comfy with the bathroom gandering.

*          *          *

It has been widely reported that President Donald Trump revoked protections for transgender students adopted by former President Barack Obama. The New York Times, for instance, ran this headline: “Trump Rescinds Rules on Bathrooms for Transgender Students.” This reporting is incorrect.

The document that Trump rescinded was what is called a “dear colleague letter.” It was sent on May 13, 2016, jointly by the Department of Justice and the Department of Education, to advise state and local education officials around the country of the Obama administration’s interpretation of federal law – specifically how federal law applies to transgender students. The letter stated the administration’s opinion that Title IX of the 1964 Civil Rights Act requires that sex-specific educational facilities and services be open to students according to gender identity. The Trump administration says otherwise.

Neither the Obama administration nor the Trump administration is the arbiter of the scope and meaning of federal legislation; that role is reserved to the courts. Neither the Obama administration letter nor the Trump administration’s superseding letter determines anyone’s legal rights.

Title VII of the 1964 Civil Rights Act prohibits sex discrimination in employment. Title IX prohibits it in education. To me, the question is a relatively simple one: is sex an immutable characteristic that is fixed at birth, or is it possible for a person to change sexes? If it is possible to change sexes, then it seems inarguable to me that people are entitled to be treated according to their current sex.

Those who oppose transgender rights tend to assume that it is not possible to change sexes. So, for instance, the following statement is made in transgender rights litigation: “when Title IX was signed into law, neither Congress nor agency regulators and third parties believed that the law opened all bathrooms and other intimate facilities to members of both sexes.” In other words, transgender females are not really female, and transgender males are not really male; freeing them from the gender they were assigned at birth constitutes “opening all bathrooms and other intimate facilities to members of both sexes.”

Every single one of Mack Beggs’s female opponents this season, all 56 of them, lost to him – and the matches generally weren’t even close. The Post said Mack “cruised” to the state championship. In the championship tournament, he won by scores like 18-7 and 12-4. He won the championship bout by 12-2: he beat the best female high school wrestler in his weight class in the entire State of Texas by ten points. For the uninitiated, the scores of scholastic wrestling matches tend to look like the scores of baseball games: a ten-point win is a thumping big victory. I suppose we can ask Mack’s wrestling opponents whether Mack is really and truly still a girl.

I do have to note one irony: the irony of opponents of transgender rights pinning their case to the intentions of the authors of the 1964 Civil Rights Act. The Civil Rights Act as written and introduced into Congress did not cover sex discrimination. Southern Congressmen who opposed a federal prohibition against race discrimination amended the bill to add the prohibition against sex discrimination, expecting that the amendment would make the bill ridiculous, so the whole bill would be defeated. And in fact, the Congressional Record tells us that introduction of the amendment prompted laughter on the floor of the House of Representatives.

The authors of the sex discrimination provisions of the 1964 Civil Rights Act did not intend to prohibit sex discrimination at all. Looking to them to determine whether they intended the “sex” in “sex discrimination” to be determined by birth or by gender identity is disingenuous; it is absurd – and therefore, I must say, it is so fitting of the times in which we now live.



What Delaware’s 10th Senatorial District Means

An important election was held today in Delaware, the first in the country since Donald Trump took up part-time residency in the White House. The election, a special election to fill a vacancy in the tenth state senatorial district, was won by Democrat Stephanie Hansen, an environmental lawyer and former president of the New Castle County Council.

The state Senate seat in question was held by Bethany Hall-Long until January 17, when she became Delaware’s lieutenant governor. Hall-Long was first elected to the seat in 2008.

The tenth district is a suburban district in northwestern Delaware, extending from the south of Newark to the towns of Odessa and Middletown. The district leans distinctly Democratic, so it is not an especially big deal that the Democratic candidate won today’s election. What is a big deal is that Hansen beat her Republican opponent by a much larger margin than Hall-Long beat the same Republican in 2014.

In 2014, Hall-Long beat Republican John Marino, a realtor and retired police officer, by just over two percent of the votes cast: 6,230 to 5,963, or 51.1 percent to 48.9 percent. Returns as of 9:30 tonight, with all 16 precincts reporting, show Hansen beating Marino by 7,314 to 5,127, or 58.1 percent to 40.8 percent.

By itself, of course, a special election for a Delaware state Senate seat has no national importance. But today’s special election has two-fold national importance.

First, Delaware is one of only six states where Democrats control the governor’s mansion and both legislative houses. Had Marino won today’s election, the Delaware Senate would have slipped from Democratic to Republican control, leaving only five of fifty states fully controlled by Democrats. (Republicans fully control 25 states, their most since 1925.) Marino campaigned hard on the need for “balance” – the need to end Democratic one-party rule in Delaware – but voters in the tenth Senate district slammed the door on “balance.”

Second, today’s special election was the first electoral test of voter reaction to the Trump presidency. Both parties poured money into the race – total spending will certainly exceed $1 million, about 20 times what a Delaware state Senate race ordinarily costs. Spending for Hansen exceeded spending for Marino by three or four to one.

Voter turnout was not nearly as heavy as turnout in the tenth district for a presidential election, but still was substantial, especially given that there was nothing else on the ballot. Today 12,171 votes were cast, compared to 12,193 in the state Senate race in 2014 – which was not a special election but a state-wide general election in which one of the state’s U.S. senators was up for re-election. And Hansen’s margin of victory was considerable – almost eight times greater than Hall-Long’s margin in 2014. Given very similar turnout numbers and the same Republican candidate in both races, and given no obvious reason that Hansen would ordinarily out-poll Hall-Long by so much, the results suggest at least the possibility of a reaction against the Republican Party in Washington.

This is an off-year in American elections: in 2017, only two governors and three state legislative houses are up for election. But before we get to any of that, we’ll have at least four special elections for Congressional seats:

  • April 4, to fill the Congressional seat vacated by Xavier Becerra, who became California attorney general. The district has been held by Democrats since 1983.
  • April 11, to fill the seat vacated by Mike Pompeo when he became director of the CIA. This seat has been held by Republicans since 1995.
  • April 18, for the seat vacated by Tom Price to become secretary of health and human services. The seat has been Republican since 1979; it was former House Speaker Newt Gingrich’s seat.
  • June 20, to fill the vacancy created when John Mulvaney became OMB director. The seat has been Republican since 2011.
  • If Montana Republican Ryan Zinke is confirmed as secretary of the interior, a special election will have to be held for that seat, which is state-wide, and has been held by Republicans since 1997.

The importance of these special elections is unlikely to be their winners. Barring something extraordinary, the incumbent party is likely to hold each of those seats. The importance of the special elections is likely to be what they reveal about popular reaction to the Republican Party now headed by President Trump.

In the off-year of 2017, only two states are holding regular elections in November. In New Jersey, the governor and both houses of the legislature are up. Republican Governor Chris Christie is term-limited, and the seat is certain to be hard-fought with national-level attention. As of now, electoral new-comer Phil Murphy is leading the Democratic field, and Lieutenant Governor Kim Guadagno is leading the Republican field – although hyper-kinetic 1980s Saturday Night Live star Joe Piscopo is considering a Republican primary run.

It’s unlikely that Republicans will be able to take over either house of the New Jersey legislature, but again the importance of the legislative elections lies in what they tell us about popular reaction to Trump’s Republicans.

In Virginia, Democratic Governor Terry McAuliffe is term-limited, and the lower house of the legislature is also up. Several viable candidates are contesting the Democratic gubernatorial nomination, but on the Republican side a clear early lead has gone to former Republican National Committee Chair Ed Gillespie. All of the viable Democratic candidates are leading Gillespie in early polling. Interesting, at least, and potentially quite important, is the fact that every Democrat’s poll standings jumped after the November 2016 election – in the case of Lieutenant Governor Ralph Northam, for instance, he led in no poll taken before Trump won; he has led in three of four polls taken after Trump won.

With Republicans holding 66 of 100 seats in the Virginia House of Delegates, it’s beyond unlikely that the chamber will flip to Democrats in November. Again, the importance of the legislative vote will be in any indication it gives of national sentiment.

Sixteen of our largest 100 cities hold mayoral elections this November. Fourteen of the incumbents are Democrats; three (Albuquerque, Miami and San Bernardino) are Republicans, although of those only the mayor of San Bernardino is running for re-election.

There is plenty of evidence of popular discontent with President Trump in particular and with national Republicans in general. Republican senators and representatives are spending their Congressional recess getting yelled at by some very angry constituents. Anti-Trump marchers in Washington on the day after Trump was inaugurated far outnumbered pro-Trump inaugural attendees. Popular opposition to Trump’s executive order travel ban was impressive, probably unparalleled in intensity and focus since the Vietnam War protests. Trump’s approval ratings are lower than any previous president’s this early in his administration – a polling comparison that is possible back to Dwight Eisenhower’s early presidency. Trump’s approval ratings one month in are literally about half of Barack Obama’s approval ratings in February 2009.

The question for 2017 is whether these signs of discontent will translate to the voting booth. If in 2017 the Congressional special elections, the state-wide elections in New Jersey and Virginia, and the mayoral elections around the country show a movement away from Republicans, and away from Trump, then Republicans will be in serious trouble in 2018. On the other hand, if 2017 is a status quo election year – or worse, if 2017 shows movement toward Republicans – then Democrats are in for a very long, hard Trump tenure.


Flynn and the Logan Act

A few years after assisting the 13 American colonies in our Revolutionary War against the British, France entered into its own revolutionary period, ending its monarchy and establishing the First Republic in 1792. The Republic spent the first ten years of its 12-year life at war with the monarchies of Austria, Britain and Prussia, which were displeased at the spread of revolutionary ideas to Europe.

Although the United States proclaimed its neutrality in the war, the U.S. stopped paying its Revolutionary War debt to France, arguing that the debt was owed to the previous regime, not to the Republic. The Republic responded with an embargo on American trade, and French privateers began seizing American ships to be sold to pay the debt to France. American attempts to initiate negotiations were unsuccessful, ending when President John Adams informed Congress in April 1798 of the XYZ Affair, in which three French diplomats demanded bribes before negotiations could begin.

On Adams’s warning of the possibility of war, Congress created the Marine Corps and re-created the Navy, to protect American shipping. On July 7, 1798, Congress revoked the 1778 treaty of alliance with France. On July 9, Congress authorized the Navy to attack French warships in American waters.

A Pennsylvania state legislator, George Logan, who was a pacifist and a member of the Democratic-Republican opposition to Adams’s Federalists, had sailed for France on June 12, 1798. Acting as a private citizen, Logan met with French officials in an effort to head off the war that was almost certainly on its way. Logan informed them of the degree of anti-French feeling in America, and urged France to take steps to ease tensions.

History tells us that the Directory of the First Republic had already decided to back away from its hostile position toward the United States. But as it happened, within days after Logan’s last meeting with French officials, France lifted its embargo against trade with America and released American merchant seamen from detention.

Logan’s unofficial and unauthorized mission thus appeared to have been a big success, and he was greeted as a hero upon his return to the States, especially by Thomas Jefferson’s Democratic-Republicans, who were generally pro-French, in contrast to Adams’s generally pro-British Federalists.

Federalists were incensed at Logan’s reception. Even former President George Washington condemned Logan’s actions. The Adams administration urged Congress to “act to curb the temerity and impudence of individuals affecting to interfere” in disputes between the United States and other countries. The result was the Logan Act, which was quickly passed by Federalist majorities in both houses of Congress, and was signed into law by President Adams on January 30, 1799.

The full text of the Logan Act reads:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

The Act thus clearly prohibits entry into discussions with a foreign government or its representatives, with intent to influence that government’s conduct “in relation to any disputes or controversies with the United States.” And because the Act was motivated by Logan’s peace-making efforts, it is clear that nobility of intention does not remove private diplomacy from the scope of the Logan Act’s prohibition.

*          *          *

On December 29, 2016, President Barack Obama imposed sanctions against Russia in retaliation for Russian interference with the 2016 U.S. presidential elections. Russian officials, including the foreign minister, responded almost immediately by promising reciprocal sanctions. But the next day, Russian President Vladimir Putin announced that there would be no retaliation; instead, he said, “we will proceed from the policy pursued by the administration” of incoming President Donald Trump.

In all probability, the FBI was already investigating the propriety of contacts between the Russian government and various Trump transition officials. In any event, the FBI quickly began to look into Putin’s unexpected, and historically anomalous, response to American diplomatic sanctions. One of the things the FBI looked into was communications with the Russian ambassador to the U.S., Sergei Kislyak – specifically, recordings made from wiretaps on Kislyak’s phones.

What the FBI found was that Trump’s national security advisor-designate, Michael Flynn, had a series of conversations with Kislyak right after Obama announced the Russia sanctions on December 29, including one in which Flynn asked that Russia not retaliate. Judging by Putin’s non-retaliation statement the next day, it appears that Flynn’s mission was successful.

Of course, Russia passing up sanctions against the U.S. is good for us. Still, as George Logan established for posterity, nobility of intention does not decriminalize private, unauthorized diplomacy. One can argue that Flynn’s actions were legitimate because the Trump administration was then just 22 days from taking office, but the fact remains that we have just one administration at a time, and, until just about noon on January 20, the one we had was not Trump’s. Flynn ran a risk, however small, that he didn’t then know all that the Obama administration knew about Russian intentions, and that his apparently benign interference might in some unexpected way produce bad consequences for the country.

No one has ever been prosecuted under the Logan Act, for a variety of reasons, and I would guess it’s unlikely that Flynn will be prosecuted under the Logan Act. But Flynn may have much bigger problems.

On January 12, the Washington Post reported that Flynn might have discussed sanctions with Kislyak; the next day, the Trump transition team responded with a flat denial. That Sunday, January 15, Vice President Mike Pence was asked about the issue on Face the Nation; his response was that, based on his conversation with Flynn, the Post report was not true.

These denials implied that Flynn had lied to administration officials about his conversations with Kislyak – which I would expect to be a capital offense in any White House. Worse, the FBI already knew that the denial was false, from the Kislyak wiretap. And if the FBI knew, then the Russians knew – and Flynn was at least potentially compromised by vulnerability to pressure or even blackmail by a Russian threat to expose Flynn’s lie. This raised the stakes from the possibility of wrongdoing by Flynn to the possibility of risk to the American national security.

On the Obama administration’s last full day in office, January 19, Yates discussed the situation with James Clapper, the Director of National Intelligence; CIA Director John Brennan; and FBI Director James Comey. Yates, Clapper and Brennan wanted to inform the incoming Trump administration of the content of the Flynn-Kislyak discussions, and the compromise of Flynn’s position. But Comey was concerned that disclosure could impair the FBI’s investigation, so the Trump administration was apparently not informed.

On January 20, Clapper and Brennan left office along with Obama; Comey stayed on as FBI director and Yates remained as acting attorney general pending Jeff Sessions’s confirmation by the Senate – or, as it happened, pending Yates’s firing by Trump when she instructed Department of Justice attorneys not to defend Trump’s travel ban. On January 22, the Post reported that Flynn was under investigation, and on January 23, at his first press briefing, White House Press Secretary Sean Spicer repeated the previous denials that Flynn had discussed sanctions with Kislyak.

Spicer’s continued denial prompted Yates to go back to Comey, who this time agreed that the White House should be informed, and Yates did inform the White House counsel. We don’t know exactly when, but it had to be sometime between January 23 and January 30, when Yates was fired.

On February 8, the Washington Post interviewed Flynn for an article to be published the next day. Flynn repeated his denial that he had discussed sanctions with the Russian ambassador. But before the article ran, Flynn called the Post back to modify his denial: he could not be completely sure that sanctions didn’t come up. On February 13, Flynn resigned.

The New York Times is now reporting that Flynn was interviewed by the FBI about his conversations with Kislyak, and that the interview occurred “in the first days of the Trump administration.” I’m betting that “the first days of the Trump administration” was before February 8, the date of Flynn’s last known denial that he had discussed sanctions with the ambassador. And I’m further betting that Flynn gave the FBI a denial, too.

Logan Act prosecutions may not exist, but prosecutions for lying to the FBI most certainly do exist, and the offense is a felony.

Congressional Republican leaders have promised to investigate, and Democrats are pressing hard the old Watergate cover-up question, “What did the President know and when did he know it?” The answer, if we ever get it, will be illuminating.

Press reports raised red flags: the report on January 12 that Flynn might have talked sanctions with Kislyak; the report on January 22 that Flynn was under investigation. Certainly by January 30, the day that Yates left office, the White House knew for a fact that the National Security Advisor had been compromised. Spicer claims now that Trump was told at the end of January that Flynn had lied to Pence. I would hope that Trump was told within hours, if not minutes of Yates informing the White House counsel. Yet Flynn was allowed to remain in office until February 13.

At an absolute minimum, that delay reflected crisis-management incompetence, and the possibility of incompetence is hardly dispelled by the unprecedented chaos of this administration’s first weeks. And consider this as a display of incompetence: a career military man, a retired general who had served for two years as the director of the Defense Intelligence Agency and who was 22 days from taking office as the national security advisor to the president of the United States, either was not sophisticated enough to know, or at least suspect, that the American intelligence community might monitor phone calls to the Russian ambassador, or was not cautious or risk-averse enough to find another way to converse with the ambassador. Either way, it says a lot about the competence of the vetting done for Trump appointees, or not done, that Flynn was able to spend 24 days in the national security advisor’s office.

There are those who suspect worse than incompetence – the accusation is afloat that Trump only acted on Flynn because it became clear that his lies were going to become public, and that absent publicity the compromised Flynn would have kept his office.

The other remaining question is whether anyone in the administration, including President Trump himself, knew about Flynn’s conversations with Kislyak when they happened – or worse, in the case of the President, whether he instructed Flynn to have those conversations. If not, of course, then we are left with this: the Washington Post knew more, earlier, about Flynn’s actions than the President-Elect and then President, and his entire transition team and administration.

 *          *          *

Just in case you were wondering whatever happened to George Logan: after leaving the Pennsylvania legislature, he spent six years in the Senate, where he tried unsuccessfully to get the Logan Act repealed. Then in 1810, three years after leaving the Senate, he traveled to Britain in a private effort to head off the War of 1812. As you may have read, this time he was not successful. Still, he was not prosecuted for violating the Act he had inspired.


The Ninth Circuit Slam Dunks Trump

In considering yesterday’s federal appeals court decision on President Donald Trump’s Executive Order 13769, it’s important to be clear about two things.

First, yesterday’s decision concerned the implementation of only five sub-sections of the executive order. The executive order consists of 11 sections and 27 sub-sections, most of which have not been challenged in any court, and many of which are indisputably valid and within the scope of presidential power.

Second, the appellate court’s decision was very, very preliminary. Politically, the decision may be the biggest judicial smack-down of any American president in his first three weeks in office; legally, the decision is nowhere close to the last word on the case.

There’s another important point that, although not especially relevant to yesterday’s decision, has been all but lost in the media coverage: Trump’s executive order deals entirely with legal entry into the United States. Even if fully and flawlessly implemented, the executive order would keep not so much as one undocumented alien from entering the country.

Now, let’s consider last night’s decision.

President Trump issued the executive order on Friday, January 27. The State of Washington sued the following Monday, claiming that portions of the executive order violate several federal constitutional and statutory provisions. At the same time, Washington asked the federal trial court in Seattle for a temporary restraining order blocking implementation of five sub-sections of the executive order. A temporary restraining order is an emergency measure – it is sought and issued on an almost summary basis, without the extended litigation that is necessary for a full exploration of the facts or a thorough debate over the applicable law.

In this case, the federal trial judge assigned was James Robart, a Washingtonian who went to law school at Georgetown, then spent 30 years in private practice, as a civil litigator, before President George Bush nominated him to the federal bench in 2003. The State of Minnesota joined Washington’s lawsuit on February 1, and the two states filed a revised application for a temporary restraining order. Last Friday, February 3, Judge Robart became one of five federal judges around the country to issue temporary restraining orders against implementation of parts of the Trump executive order.

Judge Robart’s order barred implementation of portions of five sub-sections of the executive order:

  • Section 3(c) suspends for 90 days the entry into the United States of aliens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
  • Section 5(a) suspends the entire Refugee Admissions Program for 120 days.
  • Section 5(b) directs that, after the end of the suspension of the Refugee Admissions Program, priority will be given to “refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
  • Section 5(c) suspends indefinitely entry of all Syrian refugees.
  • Section 5(e) states grounds for case-by-case waivers of the exclusion of refugees, including where admission of those refugees is in the national interest, and specifies that admission of a refugee is in the national interest “when the person is a religious minority in his country of nationality facing religious persecution.”

On Saturday, February 4, the Trump administration appealed to the United States Court of Appeals for the Ninth Circuit, and applied for an emergency stay of Judge Robart’s order. The next day, the Court of Appeals denied the request pending briefing. Briefing was done on Sunday and Monday, with oral argument conducted by conference call on Tuesday. Yesterday, in a 29-page decision, the three-judge appellate panel unanimously rejected President Trump’s request for a stay of Judge Robart’s order. Thus the five contested portions of the executive order remain unenforceable pending further litigation.

The three-judge panel consisted of appointees of presidents Jimmy Carter, George W. Bush and Barack Obama. The panel’s decision was issued “per curiam,” which is Latin for “by the court,” which means that authorship of the decision is attributed to the three judges as a whole, and not, as is usually the case, to any one of them. The per curiam form is often interpreted by court-watchers as a signal – one theory is that identifying the decision with the entire court is intended to make it a stronger statement than if it is written by one judge and merely agreed to by the other two. Whether the panel here meant to send such a signal will have to await a memoir yet to be written.

The first big issue facing the court was whether the states of Minnesota and Washington have legal standing to challenge the executive order. Standing generally requires that the plaintiff have a direct injury, not just a theoretical objection. The judges disposed of that question relatively easily: Minnesota and Washington each has a state university system that is legally an arm of the state itself; each university system has both present and incoming students and faculty who are covered by the executive order and whose travel is therefore restricted by the executive order; the universities’ missions of research and education will be impaired if travel by their students and faculty is restricted as provided by the executive order.

Next the court had to consider the Trump administration’s assertion that the executive order was “unreviewable” in court. The court pretty well did that claim in by describing it: “the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” The court called that position unprecedented, and gave a rather long list of precedents that say exactly the opposite. While a president’s national security decisions are entitled to a deferential review, the court concluded, they are not altogether exempt from review.

The court then turned to the most important legal issue: whether the Trump administration is likely to succeed in its appeal of Judge Robart’s order. “Likelihood of success” is one of two essential legal elements to an emergency stay. Although Minnesota and Washington asserted a number of constitutional and statutory claims in their lawsuit, the court of appeals needed to consider only one: the Due Process Clause of the Fifth Amendment to the Constitution.

That clause says that the government may deprive no “person” of “life, liberty, or property without due process of law.” “Persons” does not mean just “citizens”; the Supreme Court has made clear that the Due Process Clause applies to anyone who is physically present within the United States, even if she is here illegally. No one who is here may be sent away without some form of opportunity to contest the sending away.

Furthermore, “persons” includes at least some aliens who have been in the United States, have left temporarily, and are trying to return. This certainly includes resident aliens – that is, green card holders. On this point, attorneys for the federal government argued that the resident alien point was moot, because White House counsel had said that Trump’s executive order didn’t apply to green card holders. The court responded that the government had made no showing that White House counsel had the authority to modify a presidential executive order, or that such a modification would be binding on all of the agencies and officials charged to implement the executive order. “The White House counsel is not the president,” the court concluded with a light touch of sarcasm, “and he is not known to be in the chain of command for any of the Executive Departments.”

And anyway, the court went on, “persons” definitely includes visa holders who are in the United States, who would like to travel abroad but can’t because the executive order would bar their return. “Persons” might also include refugees or other would-be immigrants with relationship to people or institutions in the U.S. that have “rights of [their] own to assert” – like the state universities in Minnesota and Washington, I suppose.

Next the court considered the question of irreparable harm – the second of the two essential elements to an emergency stay. The question here was whether the United States would suffer harm that could not be fixed later in the litigation if Judge Robart’s order remained in effect for now.

President Trump’s central argument is that his executive order must remain in effect to prevent terrorist attacks – not just in the long term, after the suspensions are over and “extreme vetting” has been implemented, but in the short term, during the suspension periods. The court made short work of that argument: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

By contrast, the court observed the obvious fact that people denied entry or re-entry into the United States would suffer considerable harm if the executive order went into effect pending further litigation.

The Trump administration’s last-ditch argument was that Judge Robart’s order was “overbroad,” meaning that it extended beyond the scope of people with constitutionally protected rights. The court’s response was that it is the president’s job, not the court’s, to rewrite the executive order. Given the extensive news coverage of the chaos the executive order caused before judges were called in, the court didn’t need to point out that if President Trump had competently vetted the executive order instead of rushing it out the door, it might not need to be rewritten to avoid the obvious constitutional pitfalls.

Today, in the euphoria of Trump’s decisive political defeat at the hands of the forces of compassion, constitutional order, and common sense, it’s important to remember that the fight is not over – not the fight over Muslim immigration, much less the much greater fight between Trump’s authoritarianism and the forces that won in court yesterday.

President Trump has several options, appeal to the Supreme Court being the one foremost on pundits’ minds. I personally think President Trump would be unwise to go to the Supreme Court at this stage – but then, I’ve made it clear that I regard the drafting and implementation of the executive order itself to have been unwise. Wisdom is not the watchword of this administration.

Commentators assume that the Supreme Court would divide evenly between the four liberals and the four conservatives. Since a tie vote leaves the lower court order in place, the Trump administration needs five votes to get an emergency stay. I also think it’s at least a 50-50 proposition that Justice Anthony Kennedy, Chief Justice John Roberts, or both, would side with the four liberals against an emergency stay.

Trump could try to time his appeal to the Court so that his pending nominee, Neil Gorsuch, is seated in time to vote on the request for a stay. But I don’t think that’s going to happen. Gorsuch’s nomination is likely to be filibustered, and although I think Republicans will eventually change the filibuster rules to get Gorsuch confirmed, I don’t think they’re eager to do it, and therefore they will try to fight through a filibuster before exercising the nuclear option.

Legally, Trump has plenty of time to go to the Supreme Court. But practically, his time to ask the Court for an emergency stay is probably days, maybe a week. That’s because there is a very well established doctrine holding in substance that a party who asks a court to treat a situation as an emergency must himself act like the situation is an emergency. You can’t sit around thinking about it for a month or two then show up in court asking the court to drop everything and issue an emergency order right now.

Next, President Trump could do what he should have done in the first place – vet the executive order with the departments of State, Defense and Homeland Security, and most importantly with the Attorney General, and listen to their advice. It should not be all that difficult to come up with an executive order that satisfies Trump’s political base with an anti-immigrant gesture, without taking on a host of legal questions about the order’s validity.

And let’s be clear: the executive order was an anti-immigrant move, not a national security move, and not a move to “secure our borders.” The executive order was directed solely at legal immigrants – those with refugee entry approvals or visas. These are the folks who did what Trump fans say illegal immigrants should have done: get in line and wait your turn.

One of the unchallenged sections of the order reduces the American commitment to take in up to 100,000 refugees annually to no more than 50,000. Given that the executive order was supposed to suspend all refugee admissions until “extreme vetting” is in place, the reduction in the refugee cap is not an anti-terrorist measure, but an anti-refugee measure – and, of course, the idea was that Christian minorities in Muslim countries would have preference for that smaller number of refugee spots. (I’m quite sure that Trump does not have in mind admitting Sunnis facing religious persecution in majority Shiite Iraq or Iran, or Shiites facing religious persecution in majority Sunni Pakistan or Saudi Arabia. And one of the more irrational aspects of the executive order is its stipulation that priority be given to religious persecution claims asserted by members of religious minorities. In Syria, where the Shiite minority rules brutally over its Sunni majority, or in Bahrain, where the Sunni minority suppresses its Shiite majority, the victims are left out in the cold because they are in the numerical majority, subject to dictatorships of minorities.)

Revising the executive order would be the best move, if the object were to implement actual policy changes. The problem is that revising the executive order would look like conceding or at least compromising, not winning outright – and the core element of Trump’s brand is his claim to be a “winner.” And in any event I question whether the primary objective is policy change, as opposed to signaling to Trump’s base his continuing hostility to people who are not white and Christian.

Finally, Trump could engage in the long-term litigation of the merits of the states’ lawsuits, and the other lawsuits that have been filed. The Court of Appeals noted several times that the administration had submitted no evidence on various important points. The administration could go about developing such evidence – the most obvious being to submit evidence of terrorist attacks, or intention to commit terrorist attacks, by nationals of the seven countries. Most compelling, of course, would be a terrorist attack, or even just a serious crime, committed by someone admitted to the U.S. because of Judge Robart’s order.

Opponents of Trump’s executive order, and of his nativist authoritarianism generally, have to be realistic and understand that yesterday’s decision is just one battle in a very long fight, and a lot of these battles will be lost. Trump will not end immigration, legal or illegal, but he will reduce both. He won’t get his entire wall – the price tag has gone up, again, this time to $21 billion – but he will get additional border patrol agents, increased detention at the borders and increased deportation from within the borders. He won’t get his entire executive order, but he will get parts of it – reducing refugee immigration by lowering the annual cap and decreasing visa-based entries by drawing out the vetting of visa applicants. Trump will likely end Obama’s leniency programs, DAPA and DACA (Deferred Action for Parents of Americans and Deferred Action for Childhood Arrivals).

Still, yesterday was a great day. No matter the long-term result of the litigation, yesterday’s appellate decision was a sobering reminder that we elect presidents, not kings, and that even if the Republicans who control Congress are willing to forfeit the co-equal status of their branch of government, the judicial branch is not willing to forfeit its co-equal status. Yesterday’s decision tells the majority of Americans, who oppose Trump, that resistance is not futile.


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