Friday, February 24, 2017

Tu Madre! Trump’s Crueler and Coarser America


President  George H. W. Bush was once mocked for envisioning a “kinder and gentler” America and then failing to do anything to realize it or produce the “thousand points of light” that he wanted for the United States.  If only we could have such rhetoric again from a president we would be much better off than we are.

Trump’s America is a mean and petty country.  We learned that during the election with his demeaning of almost everyone under the sun, ranging from immigrants and Muslims to military personnel who were prisoners of war.  He denigrated and vilified women by reducing them to their sexual organs, and he mocked the physically handicapped. It took him days to acknowledge that anti-Semitism is wrong. And now, with his reversal of a Obama legal interpretation of the 1964 Civil Rights Act, he displays insensitivity and cruelty to transgender children.  And his base cheers.

Why is Trump so cruel, why is his base so hateful?    Why do they think it is okay to be mean to those who are weak, to those with whom they disagree, to those who are the less fortunate.  The quality of mercy should not be strained; it should be the mark of real strength and leadership to reach out to those with whom we disagree and embrace them.  As Abraham Lincoln beautifully said in his Second Inaugural speech regarding the South:

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

Trump does nothing to appeal to the better angels in all of us.  His is not a JFK speech of asking “not what this country can do for us but what we can do for our country.”  It is even worse than asking if you are better off now than four years ago.  Instead, his “America first” is me first and the rest of you can “F–k off.”  I want to believe that the United States and most of its people are better than that.   But the real danger of Trump is the lack of leadership when it comes to respect for human dignity,  embolding instead hateful rhetoric and behavior.

Sunday, February 19, 2017

The Two Walls of American Political Discourse

The Trump presidency shows how the United States is trapped by its own
political walls and  tradition, creating a problem both for the Democratic and Republican parties.  The problem is that the current range of political options to address many of the most entrenched policy issues in the United States is caught between failed fundamentalist market solutions of the Republican Party and the neo-liberal regulatory proposals offered by the Democratic Party.

Louis Hartz’s The Liberal Tradition in America is a classic book often forgotten.  It describes a country that was born of a liberal tradition indebted to the political philosophy of John Locke. This is an ideology of limited government, protection of individual rights, and a belief in the centrality of private property.  Hartz contends that the American political tradition demonstrates a core political consensus around these values, with historians such as  Richard Hofstadter, Daniel J. Boorstin, Clinton Rossiter, and Henry Steele Commager argue the same, alleging that there is a powerful core ideology in the United States favoring these liberal values, along with a commitment to market capitalism.   Hartz once correctly argued that the reason there is no viable socialist tradition in the US is because of the strong consensus and support for market capitalism.   McCarthyism and disdain for truly progressive politics are both a product of the liberal consensus and xenophobia and the paranoid style of politics that historian Richard Hofstadter described.  In effect, there is a left wall to American politics beyond which is appears no politician can go, with market fundamentalism describing the right wall.

At its core, American politics has that of a liberal capitalist (representative) democracy.  Markets are presumed good, government bad, and government intervention into the economy to address market failures is a last resort, not a first policy option.  New Deal and Great Society regulation is the exception and not the preferred first approach to solving social, political, and economic problems.  Contrary to what many may think, both the contemporary Democratic and Republican parties ascribe to this belief, with the latter clearly favoring more market fundamentalist solutions while the former endorses more regulatory approaches at times.

How its political tradition affects politics in the United States is playing out now under the Trump presidency.    In many ways the reason why Trump got elected and his message resonated so well with so many is that the political-economic institutions have not benefitted the majority of Americans for the last 40 years.  It is not necessary to recount here the statistics pointing to the widening gap between the rich and poor since the 1970s, producing what is today the most maldistributed US economy since the 1920s.  Many feel they are no longer living the American Dream, and there is ample evidence to support that.  In part, the reason why so many have been left behind is that American public policy since the 1970s has not favored the middle class or the poor, working instead to the advantage of the already most affluent.

Both the Democrats and the Republican Parties have been guilty in not addressing the needs of the former, but the Republicans clearly have pursued  policies more supportive of the rich than the working or middle class.  And now under Trump, Ryan, and McConnell, their embrace of market fundamentalism will do little to help those who voted for them.  Instead, if the history of the last 40 years has shown anything, less regulation and more markets fail to address issues such as economic inequality, health care, the cost of higher education, and the loss of jobs overseas.  There is little evidence that even if the Trump-Ryan-McConnell agenda gets enacted, it will help those who most need help.  The right wall of American politics–market fundamentalism–cannot solve many of the most entrenched problems the United States confronts.

But conversely, the Democrats are trapped by a different wall.  In many ways the crisis of this party is all about the limits of regulation.  The timid regulatory politics that mark Democratic politics from Carter to Obama had limited benefit to the poor, working class, and the middle.  At some point, minor redistributive politics and limited market regulation is not enough. Bolder and broader solutions may be required.  Yet there is a left wall–the wall that defines the limits of progressive politics– as political scientist Charles Lindblom calls it, which imprisons what the Democrats can offer as policy solutions.

The irony of the Trump era is that his call for a wall is a wonderful metaphor for the limits and poverty of American political solutions offered not just by him and the Republicans, but also by the mainstream Democratic Party now.

Saturday, February 11, 2017

Constitution 7, Trump Administration 0.

But it is still early in the first quarter and we know what happened to the
Atlanta Falcons in the Super Bowl.
It was no surprise at all that Trump lost in the Ninth Circuit Court of Appeals when it came to his travel ban.  Even though the decision was not on the merits but only on the stay, the Court indicated that the challengers were more than likely to win on the merits when it came to two constitutional claims–a Fifth Amendment Due Process claim regarding revocation of travel privileges without hearings, and a First Amendment Freedom of Religion claim.  The Trump administration lost because it was sloppy.  The executive order–as with most of them–are more showmanship than substance.  His Administration is full of a bunch of amateurs who do not know how government works and they think they can flout the law and rules and do whatever they want.  And Trump himself is unwilling to listen and take advice from those who k ow their way around Washington.
Trump’s performance after three weeks is a reminder of what I have been arguing for weeks.  There is this amazing document out there called the Constitution and the Bill of Rights that has nifty things such as checks and balances, separation of powers, due process, equal protection, federalism, and an independent judiciary.  These structures actually do work and mean something.  They were meant to frustrate rapid political change, to make it difficult for a–as James Madison described in Federalist Paper number 10: “[M]majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
For all those liberals or conservatives who moaned that they could not get rapid or significant political reform accomplished, in part the reason was the structural design of the Constitution meant to prevent that. Thus, for the Trumps and Jason Lewis types of the world who whine that politics in the United States is played between the 40 yard lines, guess what?  It was designed to do just that.  We may live in a time of polarization where many want to go for the Hail Mary pass but the reality is that in politics as in football, such plays seldom work.
But having said all the above, remember it is early still in the first quarter and lots can happen in this political game.  There will be many forces converging that will tame Trump.  The foreign policy establishment that is so powerful in Washington is already constraining Trump when it comes to China.  Week three into his term and the Iran Nuclear deal is not torn up.  No one sees the first brick being laid along the Mexican border.   Free markets and returns on investment will largely doom many of the ideas to bring back coal and kill off renewable energy.  
Yet complacency is a real danger, and Democrats are hobbled by it.  Across the country one hears repeated talk of impeachment, or of the idea that Trump will be so inept that he will bring himself and Republicans down in 2018 and 2020.   Thus, the complacency is the idea that Trump is so bad voters will return to their senses and vote for Democrats and the DFL in two or four years.   One might as well wish for a pony.  This was Clinton’s strategy in 2016. Remember, in part she lost because she had no narrative, no message.  She assumed voters were hers.  The Democrats thought their policies for the last eight if not more years were fine and that they did not need to do anything wrong.   If only it were not for the FBI Director Comey letter or some other freak occurrence such as the Electoral College, she would be president.  She was not the problem, the message was not the problem, the strategy was not the problem, it was someone, somebody, or something else that was to blame.  That seems to be the message of the 2017   Minnesota DFL listening tour according to my friends who have attended.  It is less listening and more about what we were right and the tide is now turning to the DFL and Democratic party advantage.
The reality is that  Democratic party policies, narratives, and strategies,  for the last generation were part of the problem.  From Bill Clinton to Barack Obama the Democrats failed to treat seriously the needs of the working class.  The bailed out the banks but ignored the homeowners after the crash of 2008.  Obama never moved on minimum wage when he could, he failed to push for the Employee Free Choice Act to help the labor unions, he did nothing to address the role of money in politics.  Democrats across the country supported tax cuts that favored the rich.  No, they did not support the wholesale attack on the welfare state but neither did they endorse a major restructuring of it to improve it.  Instead, they went along with the thousand nicks and cuts that undermined it.
Obama and Clinton left the Democratic Party in the weakest position it has been in since the 1920s.  Hoping to run out the clock when it is only in the first quarter is not a viable game plan.  Yes, the Constitution has won and it should be recognized that it sets the rules for the game of American  politics.  But Democrats if they are to be successful, they need to have a real team with a real game plan and strategy beyond one that assumes that Trump and the republicans will simply continue to fumble or commit fouls.

Saturday, February 4, 2017

Trump's America--A Not So Shining City on the Hill

Barely two weeks into the Trump presidency and the United States is already less great and weaker
than it was before he took office.  The reason for that is Trump’s failure to grasp the essence of leadership and the unique role that the United States has a moral exemplar among nations of the world.
MBA and other graduate programs are littered with leadership classes.  A ton of ink has been spilled seeking to describe the essence of leadership, especially for the presidency.  But James MacGregor Burns’ 1978 Leadership is still the single best book that joins these topics.  In it Burns distinguishes between two types of leadership–transactional and transformational.  Transactional  is the quid pro quo of cutting deals, the ordinary game of bargaining, but real leadership is transformational.  A transformational leader literally transforms institutions or the world, forging new ways to look and organize the world.  Presidents such as George Washington, Abraham  Lincoln, Teddy Roosevelt, Franklin Roosevelt, and Ronald Reagan were transformative.
But to be a transformative leader sometime special is required–moral authority. Transforming leadership happens when "one or more persons engage with each other in such a way that leaders and followers raise one another to higher levels of motivation and morality."  Burns once stated succinctly that real transformative leadership is authority guided by moral principle. Authoritarians exert mere power or brute force, but real leadership has a moral dimension capable of transforming and moving people in ways that mere transactional bargaining cannot.
For the most successful of US presidents, the concept of moral leadership is enhanced by the country’s special status in the world.  Maybe it goes back to the concept of American exceptionalism rooted in Puritan John Winthrop’s 1630 speech “A Model of Christian Charity” he gave on the ship Arbella before it docked in Massachusetts colony where he described this new place as a “shining city upon the hill.”  For many coming to America we were as Abraham Lincoln as others declared, the “last great hope” on Earth to found a just and ethical country. Part of what makes the United States great is it moral leadership–the defender of human rights, democracy, and its willing to play fair for the right causes and reasons.  This country’s strength was not simply the hard power of bombs and bullets, but as Paul Kennedy said, it also included our soft power of moral leadership and authority in the world that makes it possible to criticize dictators and despots.  The power to persuade includes a moral position.
None of this is something that Trump understands.  First his concept of leadership is narrow and transactional.  Trump’s entire Art of the Deal is an ode to quid pro quo bargaining in its thinnest sense.  Good negotiators tell you that real bargaining is not zero sum, it leaves both sides feeling good because both are winners.  The Art of the Deal is about how Trump took advantage of others for selfish or personal reasons, not to enhance the position of both sides.  But even if the Art of the Deal was more, it still describes a world of transactions and not transformation.  Trump’s concept of leadership is woefully thin and confined to this narrow notion of quid pro quo.  It is about the US getting better one-on-one deals with other countries that puts American first.  It is hardly a form of leadership that rebuilds or builds structures and institutions in ways to help the country.
But Trump also misunderstands the importance of American exceptionalism and the gravity it exercises in the world.  America’s real authority–which includes its soft power–rests upon its moral status in the world.  If we respect individual rights at home, support freedom of the press, and  obey rule of law, it makes it easier to criticize authoritarians and regimes around the world that fail to do that.  Trump simply does not understand that.  Eschewing respect for the press, his Muslim travel ban, or in his recent prayer breakfast speech declaring only “citizens can practice their beliefs without fear of hostility or a fear of violence,” Trump undermines not only domestically the values that are important to American democracy but he vastly weakens the moral position of the United States and his presidency in the world.

Tuesday, January 31, 2017

Presidential Executive Orders and the Constitution: What Can Trump Really Do?

What is an executive order and what can presidents such as Trump do with them?
            Article I, Section 7 of the Constitution describes the process for how a bill becomes a law.  The process requires both houses of Congress to pass legislation with identical language and for it to be signed by the president.  In the alternative, Congress by two-thirds majorities in both Houses can override a presidential veto to make something a law, and in some cases bills the president has not signed but not vetoed and returned to Congress may also become a law (if the president refuses to return a bill adopted in the last 10 days of a session, the president has exercised what is known as a pocket veto). Once a bill becomes a law it is legally binding, enforceable by the executive branch.
            Yet the congressional route is not the only way law is created.  Orders by the courts become binding and enforceable as law by the courts.  In some circumstances, orders issued by the President of the United States too carry the force of law.  These executive orders have been issued by presidents since the time George Washington became president, and over time they have been used by almost every president, often either with support or controversy.
            The legal or constitutional basis for executive orders has several sources.  The first is in Article II, Section I, Clause 1,which vests in the president the executive power, and  Article II, Section 3, which requires that presidents “take care that the laws be faithfully executed.”   While lacking precise definition, the executive power gives  presidents broad enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the executive department.  Second, executive orders have a legal basis in power delegated by Congress to the president or executive department agencies.  Congress may delegate to the Environmental Protection Agency, for example, authority to make determinations about what constitutes clean air or water under the Clean Water Act of 1972 or Clean Air Act of 1973. This delegation power is subject to the constitutional limits outlined by a host of Supreme Court decision.
           Third, since the adoption of the Administrative Procedures Act (APA) in 1946, there is a complex process and structure for how administrative agencies and members of the executive branch can make rules and have then become legally binding.  Taken together, these constitutional clauses, specific congressional delegation, and the rule making process of the APA form the legal basis of presidential executive orders.
            With the exception of President William Henry Harrison who died barely a month after being sworn into office, every president has issued executive orders.  George Washington issued the first one, directing officers of the Articles of Confederation government to compose a report for his administration on the status or state of affairs of America.  Other famous orders included Thomas Jefferson ordering the Louisiana Purchase, James Knox Polk ordering the annexation of Texas, Abraham Lincoln’s Emancipation Proclamation, Franklin Roosevelt ordering the internment of Japanese-Americans during World War II, and John Kennedy creating the Peace Corps.  The numbering of executive orders began in 1907, and not until the Federal Registration Act of 1936 was there a formal process for recording executive orders.  Prior to 1936 and 1907 executive orders were issued less formally.
            From 1789 to the end of the Obama presidency there have been nearly 14,000 executive orders. Franklin Roosevelt holds the record with 3,721 orders, with second place going to Woodrow Wilson at 1,803, and third place to Calvin Coolidge with 1,203.  Among recent presidents, Bill Clinton issued 364, George Bush 291, and Barack Obama fill in.  The American Presidency Project at http://www.presidency.ucsb.edu/data/orders.php maintains a list of all executive orders.
            In the last several years, partisan and political gridlock between Congress and the president has led the latter into using executive orders as a way of addressing issues or creating rules of laws in the absence of explicit congressional action.  The Obama Administration through the EPA issued rules regulating carbon emissions. Yet in Murray Energy Company v. Environmental Protection Agency,      U.S.,      ;136 S.Ct. 999; 194 L.Ed.2d 18 (2016) in a suit brought by more than two dozen states and several utility company, the Supreme Court in a 5-3 vote issued a stay on the rules pending review by the Court of Appeals.  In United States v. Texas,      ___ U.S.     ; 136 S.Ct. 2271 (2016), the Supreme Court deadlocked 4-4 and issued a per curiam decision that upheld a lower decision that issued an injunction to prevent enforcement of an executive order or program entitled Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would provide legal presence for illegal immigrants who were parents of citizens or lawful permanent residents.  This decision effectively ended President Obama’s effort to use an executive order to effect immigration reform.  The lower court decision is provided in this book.
      While many criticize executive orders as a way to circumvent Congress and the separation of powers process, there is no question that these orders are a major part of federal executive power that is unlikely to disappear in the future.  However, as should be clear, presidents are not kings and do not have any inherent power to issue orders.  Their authority must come from the Constitution or law, subject to limits.  Nor are presidents like Captain Pikard able simply to say “Make it so” and it will happen.  Once presidents do issue executive orders they carry the binding force of law and they are hard to repeal or undue.  This  will make it difficult for Trump to undo except a very few of Obama’s recent executive orders.  Conversely, moving forward , any of Trump’s orders will have to follow a specific process to have the force of law, and there are many things he simply cannot order.
Finally, when one looks at the executive orders Trump has already issued, they really are so vague and general that they really do not do anything.  His first on Obamacare did not really order anyone to do anything, and the executive order on the Mexican wall too was vacuous and could not really command anything, especially when it required an appropriation of money that Trump did not have.  In many cases these “executive orders” seem more like press releases or public relations than real legally-binding executive orders.

Sunday, January 29, 2017

The case against billing protesters

Today's blog appeared originally in the Pioneer Press.

Respect for individual rights is the hallmark of a constitutional democracy such as the United States. Among the most sacred of those rights are the expressive ones found in the First Amendment guaranteeing freedom of speech, press, petition, and association. Free societies require free expression, including the ability of individuals to protest government action they find wrong. That is why legislation aimed at billing protesters for the costs of policing when they break the law in a nonviolent fashion is ethically and constitutionally wrong.
The price of a free society is permitting and respecting individuals’ rights to express their views through civil disobedience, including peaceful breaking of the law. America’s independence begins with an act of civil disobedience when colonists in 1773 dumped tea in Boston harbor to protest an unjust British tax. It includes abolitionists Henry David Thoreau who challenged slavery by refusing to pay taxes, civil rights advocates who sat at lunch counters and at the front of buses to contest Jim Crow laws, and pro-life individuals who blocked the entrances of abortion clinics to defend the rights of the unborn. Not all of us necessarily agree with their causes, but those who broke these laws were not common criminals. Common criminals are individuals who break the law for personal gain, with the intent to harm others, or simply for the sake of breaking the law. Protesters who break the law do so for different reasons and should be treated differently than common criminals.
Protesters break the law to demonstrate that a law is unjust, or that the government is acting wrongly or unconstitutionally. They break the law to appeal to the sense of morality or justice of the political community, demanding the government or others to recognize the injustice and correct it. The power of civil disobedience is the willingness of individuals to face punishment for a cause, testing both the content of their character and the courage of their convictions that they believe are moral and political wrongs. This is not mere hooliganism, it is a patriotic act of political action, aimed at invoking the deeply held constitutional values of American society, demanding that the current law or practices be changed.
Such activity is critical to the functioning of a free society as the United States. Such protest is consistent with and furthers the constitutional morality upon which this nation was founded.
That is why legislation aimed at billing individuals for the costs of their protests is wrong.
Across the country and in Minnesota elected officials are introducing bills that would do that, or enhancing penalties for breaking the law when protesting. Even if the laws were limited to billing individuals convicted of breaking the law, that is still wrong. In cases where the validity of the laws is doubtful one should never bill protesters for civil disobedience because such activity serves to chill expressive rights. It is an effort to squash the ability of individuals to act in ways to draw attention to unjust or unconstitutional activity and thereby prevent social and political change.
Even in cases where the law is clear and protesters have clearly broken the law, yes, in many cases they should be charged and convicted for breaking the law, but they should not be billed for policing or face enhanced penalties. These protesters are not criminals as defined above; they are challenging laws for ethical and constitutional purposes. Even in violating laws that are valid they perform an important function in exposing wrong. Imagine if abolitionists were billed for policing, or if Rosa Parks and Martin Luther King Jr. were assessed. American society is better for their actions, our constitutional system is stronger, our respect for individual rights more entrenched, and our respect for human dignity furthered.
These laws establish bad precedents. Why not bill for the cost of police protection for the 100,000 who marched in St Paul against Donald Trump or for the thousands who showed up for his airport rally last November? Assess a process fee for petitions submitted to the government? Bill the press for time government officials spend answering their questions? These acts are core to a free society and billing for them would damage First Amendment rights.
The price of a free society is respecting differences of opinion. It recognizes that dissent – including breaking the law – is often capable of being more ethical and just than blindly and passively obeying it. In some cases, breaking the law invokes and promotes a shared sense of ethics that underlies the legal regime of the United States. That is why it would be wrong to treat protesters as mere criminals and force them to pay for the exercise of their First Amendment rights.

Thursday, January 26, 2017

Donald Trump and the End of America’s Century

Donald Trump’s call to place “America first” as he declared in his inaugural speech is propelling him
into direct conflict with his campaign slogan to “Make America great again.”  Already in his first week in office he has undertaken a series of actions that do more to weaken rather than strengthen the United States.
It was Time publisher Henry Luce who proclaimed in a 1941 Life Magazine editorial that the twentieth century would be the “American Century.”  And to a large extent it became so after World War II and then clearly after the fall of the Berlin Wall and the Soviet Union.  In the former case the USA emerged from WW II as the strongest country in the world, in the latter, it was ,as Francis Fukuyama declared in The End of History and the Last Man, because of its dominance as the last standing superpower in the world that had won the Cold War and the battle for ideological ideas.
America’s  strength was not just measured by military might but also by being the  richest and largest economy in the world.  America’s power was also measured by it cultural exporting of its values, it role as the leader of the free world, the leading democracy, and moral leader of the world.  Its willingness to engage in alliances, trade, and political adventures across the world gave it what historian Paul Kennedy in the Rise and Fall of Great Powers the soft power to be great.  To be a world leader the USA had to be hegemonic, and it was.
But the worlds of 1946, 1989, or 1991 are far different than the one that exists today.  The  political world is not bi or monopolar but multipolar.  The EU has a larger GDP and economy than the US, as does China.  Whether anyone likes it or not, the global economy is global as Thomas Friedman pointed to in The World is Flat, with a degree of global interconnectedness that in many ways is impossible to reverse.  And the USA is no longer the best educated, most technologically advanced, or singularly-dominant country in the world.   The USA is a first nation among rivals and friends, and America’s ability to remain a leader resides in adapting to a changing world and continuing to engage with others.
This is what Trump fails to understand.  Whatever “Making America Great Again” means  it is impossible and perhaps undesirable to turn the clock back to some halcyon days of old the US dominated the world, when White guys worked in union scale manufacturing and mining jobs that built  cars, steel, and dug coal, and women stayed home and dressed in heels and skirts like Donna Reed while raising 2.3 children.  That world does not exist anymore and no matter what one does, it is not coming back.  The same is true internationally, especially if Trump continues along the path he has already taken.