Trump, Congress, and the Supreme Court: The Day of Reckoning Looms

                There is a looming day of reckoning for Donald Trump and the Supreme Court, and it will

be a moment of truth for both.  Will the Supreme Court follow legal precedent and rule against the president, or will it show its partisan colors and side with Trump?  This is the ultimate for Chief Justice Roberts and the Court’s conservatives, a moment that no doubt the former dreads.

            The Supreme Court will perhaps have its moment that defines the fate of the presidency much in the same way it did back in 1974 and then in 1997.  In the former, President Nixon during House impeachment hearings refused to turn over to Congress and a special prosecutor taped White House conversations, claiming executive privilege.  Nixon counted on winning this battle.  After all, his Chief Justice Warren Burger headed the Court.

            Yet the Court did the right thing.  In United States v. Nixon, 418 U.S. 683 (1974) the Court ruled that while executive privilege did exist as part of the constitutional power presidents had under Article II, such a privilege could not interfere with the Article III powers of the judiciary to do its job and investigate possible criminal activity within the executive branch.  The opinion was 8-0, with Nixon’s own Burger writing the opinion.  For many, the Supreme Court’s U.S. v. Nixon was the final straw that brought down Nixon and led to his resignation.

            Second,  Paula Jones sued President Clinton for sexual harassment for event arising out of when he was governor of Arkansas.   The Supreme Court was asked to rule on whether a sitting president could be subjected to a civil lawsuit.  In rejecting claims of presidential immunity, the Supreme Court unanimously ruled in Clinton v. Jones, 520 U.S. 681 (1997) that he could be.  That decision was critical eventually to testimony that would implicate the president in committing perjury and being impeached by the House.  Both the Nixon and Clinton decisions were critical Supreme Court affirmations of limits on presidential power.

            Similar Court battles are now looming with Trump.  A New York prosecutor has demanded Trump’s tax records from his account.  Congress wants them too.  Trump refuses to let his staff testify before Congress or honor congressional subpoenas.  He or his administration has gone to court to challenge the requests.  In many case lower courts have ruled against him, and now Trump is asking the Supreme Court to intervene.  There are at least four areas or issues in which the law is settled by past precedent or where decisions by the Supreme Court  could tip the balance of power between Trump and Congress.

            Congressional Investigatory Power.  Cases such as McGrain v. Daugherty,273 U.S 135 (1927) Barenblatt v. United States, 360 U.S. 109 (1959), and U.S. v. Nixon, 418 U.S. 683 (1974) stand for the proposition that Congress has broad investigatory powers backed up subpoena power to enforce compliance.  In both Daugherty and Nixon, the investigations involved investigations into possible criminal activity in the executive branch perhaps involving the president himself.  In these cases the Court ruled for Congress.   There is also  Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C.2008) ruling that executive branch senior officials must comply with congressional subpoenas to testify.  Since these decisions few question the authority and scope of congressional investigatory authority and current precedent suggests requests that at least in cases when it involves possible criminal activity, White House officials must comply with the subpoenas.

            Prosecutorial Subpoena Power.  Prosecutors  have broad power to investigate crimes and gather evidence of it.  This is the case  in when the president is the target of investigation.  While there may be Office of Legal Counsel Memoranda contending a sitting president may not be indicted for a crime, they did not dissuade the Supreme Court in U.S. v. Nixon from ordering the president to comply with a federal prosecutor’s subpoena.  It should not matter now that the prosecutor demanding Trump’s tax records is a state one, the same principle applies.

            Congressional Impeachment Power.  In Nixon v. United States, 506 U.S. 224 (1993) Chief Justice William Rehnquist wrote the plurality opinion  for a unanimous Court ruling that matters of impeachment are political questions and not subject to review by the federal courts.  This case involved a constitutional challenge by a federal judge  over procedures  used when he was impeached by the House and convicted by the Senate.  The significance of this ruling  is that the House and Senate have broad leeway to undertake impeachment investigations and trials.  They suggest that challenges by a president that he is not getting due process, or that there are specific evidentiary or other procedural issues that must be followed (no admission of hearsay or secondary accounts), or that what counts as a high crimes and misdemeanors can be reviewed the federal courts should be  dismissed.

                Presidential Pardoning Power.  Perhaps the one area where one hopes the Supreme Court deviates from existing precedent is in regard to presidential pardoning power.  Article II, section 2 of the Constitution grants the president pardoning power.  In cases such as Ex Parte Garland,  71 U.S. 333 (1867), and Murphy v Ford, 390 F. Supp. 1372 (1975), the judiciary gave the president “unlimited” authority to  issue pardons.   These cases did not raise significant interbranch or separation of powers issues that hindered the powers of Congress or the federal courts.

            However, assume that the Trump administration continues to resist congressional subpoenas and Congress eventually holds officials in contempt, as it is allowed to do.  Can the president issue pardons to  overturn the contempt citations?  Current precedent either supports this if Garland and Murphy are read broadly, or we do not know if read more  narrowly.   If the Supreme Court were to uphold presidential pardons to thwart congressional contempt citations it would vastly undermine  the latter’s investigatory powers and tilt power significantly in the direction of the president to undermine oversight.  One would hope that while the Supreme Court would continue to give broad discretion to presidents to issue pardons, it cannot come at the expense of diminishing congressional authority.  One hopes that the Court would follow the logic of U.S. v. Nixon and rule that pardoning power must yield to the needs of Congress to do its job and to allow for investigation of possible criminality in the executive branch.

                In these four areas of law the Supreme Court will potentially decide the fate of the Trump presidency, and the scope of presidential power going forward.  Trump’s refusal to cooperate with investigations flies in the face of legal precedent and rests upon dubious executive branch Office of Legal Counsel memos that do not have the force of law and which have not been tested in court.

We know that Justice Roberts is acutely aware of the impression that the Court is increasingly seen as a political body, and he pushed back against Donald Trump who contended that there were “Obama judges.”  He has done so despite the fact that there is overwhelming evidence that the conservatives on the Roberts Court are voting ideologically, and with a current Supreme Court stacked with five Republican presidential appointees, including two by Trump.

            Were this Court to overrule or, more likely distinguish current precedent when it comes to congressional investigations, impeachment power, or prosecutorial power, or expand presidential pardoning authority in ways that favor the president it would not only tip the balance of power in favor of Trump, but also cement the image of the Court as no more than partisans wearing robes. 

Chief Justice Roberts is facing a day of reckoning, and one wonders whether he can rise to the challenge.

Whistleblowing, Anonymity, and Impeachment

Donald Trump and the Republicans want to out the anonymous whistleblower who first reported

on the president’s telephone conversation with the Ukrainian president.  Exposing him along with subpoenaing Hunter Biden in the Trump inquiry are at the heart of Trump’s impeachment defense.
The demand to call Biden is diversionary.  By that, try to argue he did something wrong as  an excuse for the president’s demand that Ukraine investigate Biden.  Besides the fact Hunter Biden  was already investigated and cleared, even if he did do something wrong it does not excuse the president’s behavior.  He called on another country to investigate a political opponent and conditioned military aid on it.  This is either abuse of power or a violation of federal campaign laws,  both possible causes of impeachment.
Two, part of the demand to expose the whistleblower is legal–asserting that constitutional  due process demands that the  president has a right to confront his accuser.  This argument fails for an obvious reason–impeachments are not criminal inquiries.  No less an authority than Alexander Hamilton in Federalist number 65 made this point.   The criminal due process protections of the Bill of Rights do not apply.  Two, even if exposed it would not matter because other sources and testimony have independently corroborated the whistleblower’s original report.
But more important, the purpose in outing the whistleblower is simple–we hate snitches.  In labeling the whistleblower as a traitor hits at a culturally deep seated belief in American society. From the time we are very young the most dreaded thing to be called is a tattletale, fink, or stool pigeon.  Remember times in school when someone threw an eraser and the teacher asked who threw it?  No one confessed and all of you detention.  You sat there thinking it was unfair but you never dared raise your hand and snitch on who did less recess would not have been pretty for you that day.
The point is that culturally we hate snitches and Trump is trying to play on the hate.  One of my professors Edward Weisband long ago pointed this out in his Resignation in Protest.  In the US we claim to care about ethics, integrity, and individualism, but then punish the principled public official as disloyal or not a team player who exposes the corruption.  The way to evade culpability for corruption is to expose  the whistleblower, argue he is disloyal, and therefore discredit him.
In attacking and exposing the whistleblower something more dangerous is being undermined–the historical importance of encouraging individuals to report fraud and abuse, often with the need to guarantee anonymity in order to prevent the very type of retaliation that Trump and the Republicans are trying to do.  Dating back to the early days of America, in 1777 Congress passed a law encouraging members of the military to report to them suspected cases of prisoner abuse.  The 1863 False Claims Act encouraged reporting of profiteering and abuse during the Civil War.    The Sarbanes-Oxley Act of 2002 created mandates in the private sector for anonymous reporting of suspected illegal behavior in the corporate world.  The 2010  Dodd-Frank law strengthened these provisions.  Finally, the Inspector General Act of 1978, the Intelligence Community Whistleblower Protection Act of 1998, and the Whistleblower Protection Enhancement Act of 2012  all were adopted to encourage the exposure of political corruption within the federal government.  In many cases, they guarantee the anonymity of the whistleblower.  They do so to prevent reprisals and attacks against them because we hate tattletales. 
American history thus shows the importance of laws to encourage whistleblowing.  Exposing  corruption and abuses of power is critical to the promotion of a free society.  The Trump-Republican  attack on the legal protections afforded to whistleblowers is powerfully shortsighted, both in terms of how exposing this specific whistleblower will not alter the case against Trump, but also in terms of the damage it does to exposing improper and perhaps illegal behavior in government.

Ten Questions on Impeachment and the 2020 US Elections

1 - One year out from the 2020 elections, what does it look like?

One year out from the 2020 elections American politics is very polarized.   The US is experiencing the greatest gap in income and wealth at least since the 1920s and studies point to a nation with rigid social mobility.  The result is a nation divided geographically, racially, and most important, politically.

The country is very divided across a range of issues including health care, the economy, foreign policy, and most important, over the performance of President Donald Trump.  Democrats and Republicans have very different views on Trump’s performance, and the coming 2020 elections to a large extent will be a referendum on him.



2 - What are the big election themes?

Really the 2020 elections are about Trump–a referendum on his performance and whether he should get a second term, or even impeached or removed from office.  But beyond Trump, the major issues seem to be health care, both cost  and access, the economy, which seems to be slowing, immigration, and perhaps foreign policy or how the US engages with the rest of the world.

3.  On Thursday the Democrats in the House formally voted to authorize an impeachment inquiry.  What was the significance of that vote?

First, this was not impeachment, merely formalizing what has been going on for several months.  The Constitution gives Congress broad investigatory and oversight powers and the line between those functions and their constitutional power of impeachment is thin.   There is amble case law on this as precedent.  Thus, for a legal perspective the vote on Thursday meant little, but politically it was significant. 

With that vote Donald Trump is only the fourth president in US history subject to a formal impeachment inquiry.  That is not a great club to be in.  But also politically, the vote is important for other reasons.  Trump and the Republicans have thus far complained that the impeachment process is not legitimate and transparent, thereby justifying the president’s refusal to cooperate.  Never ask for something because you might regret getting it. Those reasons not disappear.  Again, from a legal perspective, none of this mattered, but now politically if the president or Republicans refuse to cooperate when they have the ability to do so it looks bad for them politically.  Also, the president’s decision not to cooperate looks even more like possible  obstruction of justice.

Also, now the formalizing of the impeachment inquiry sets up a long process of educating the American public about the president’s behavior.  If the president fights the inquiry, it drags the process further into 2020, placing impeachment into the center of the primaries and perhaps the general election.  The more Trump fights, the more it drags on, the more it gets into the center of the  election.  How the impeachment and the 2020 elections intersect is a great question.  Will it mobilize Republicans or Democrats?  Or is the issue really how it impact party base mobilization and swing voters in a few swing states such as Pennsylvania, Ohio, Michigan, and Wisconsin?  This latter scenario may be the real issue.


The impeachment complicates the ability of the two parties to work together, which was already bad.  It also complicates the electoral picture because it is not clear which party the impeachment process favors.  Will it boast Democratic or Republican base voting.  How will it impact swing voters, especially in a cluster of swing states such as in Wisconsin, Michigan, Ohio, and Pennsylvania.  Finally, the timing of a possible impeachment and Senate trial is critical to how it impacts politics.


4 - Three months are left before the primaries begin and four months before Super Tuesday, which this year will have California and Texas.  Where are the Democrats?

Right now the Democratic field for president is wide and deep, but there are really only a handful of serious candidates.  Generally, Iowa and then New Hampshire are the two states that have the biggest influence on the presidential nomination process in the US.  The Iowa caucuses are February 3, 2020.  Yet this coming year California and Texas have moved their primaries to March 30, with early voting in the former coming the day of the Iowa caucuses.   These two primaries may make Iowa less important, or change the strategy of the primary process.  California and Texas will require a lot of money and momentum, and it is not clear that doing well in Iowa will provide either.  In addition, candidates may need to decide whether to commit resources to Iowa–with few delegates–or work to do well in California and Texas, which have more delegates. The change in primary schedules complicates the strategy for 2020.

Moreover, while the Democrats are united again Trump, they lack a defining narrative of what they want to do and what they stand for.  They are missing the elusive narrative.  Right now they are a party divided facing a president who has a unified Republican party behind him.  Despite the slowing  of the economy, a dreary manufacturing sector, and how health care and the trade wars are hurting  his base economically, there is no sign that these factors are eroding his support.

5 - Who are the favorites among Democrats?
At this point it is Joe Biden, Elizabeth, Bernie Sanders, and Peter Buttigieg who are the top tier candidates in terms of money raised and standing in the polls,    Biden is the leader among the more centrists of the party while Warren and Sanders are fighting for the left.  The questions will be who emerges as the candidate of the left and then how will they square off against Biden and then which side–the moderate or the left–prevails within the Democratic party.

What has been surprising is the endurance of Biden.  Despite his weak debate performance, he still is at or near the top in national and many state polls.

6 - What about Trump’s  wall?  Is it still an issue.

The wall was always a metaphor about other things that Trump was forced to own and take literally  as a promise.

The wall will continue to be an issue for Trump and his base, but the impeachment and court challenges to the wall are complicating this as an issue.  Trump will raise it at rallies but he has somewhat moved on to running against his impeachment and Democrats as his core issues along with going after immigrants.

The other issue of possible concern for Trump is the slowing of the US economy, but so far it does not look like it is affecting his support among his political base.

7- How will the China theme impact as elections?

China is a surrogate for immigration, isolationism, and protectionism.  These themes resonate with the Republican base and so far there is no indication that the economic consequences are weakening support among Trump’s base.

8 - Is it possible to apply for an independent (Bloomberg) or a competitive third party to enter the race?
People always talk of an third party candidate or party but the entry barriers, such as costs and legal challenges to get on the ballot, make it unlikely that a third party will emerge.  Bloomberg also dislikes Trump enough that he will not enter as a spoiler.

9 - What about the congressional elections?

It seems unlikely the House will flip, especially with the number of Republicans who are retiring.  The issue is whether the Republican can hold the Senate. Currently that have a 53-47 effective majority.  In 2020 there will be 35 Senators up for election, of which 23 are Republicans.  The impeachment process and possible Senate trial will test their loyalty–support the president or act to protect their own Senate seat.

One should also not forget that many state legislative seats are up for election in 2020. This is the election will determine control of the state houses going into the 2021 census and redistricting.

10–Any last thoughts?
Forget all the national polls.  Remember that the presidential election is about the electoral college and the race to 270 electoral votes. The next president is the only who moves a handful of swing voters in a few swing counties in a few swing states. That is the real presidential election.

Does Rent Control Make Sense for Minneapolis? What Theory and Evidence Tell Us

Minneapolis like many American cities is facing a housing affordability crisis.  Rents  are going up rapidly,  placing middle class and low income households into units beyond what they can afford, if in fact they can even find suitable unit at all.  Among solutions  being considered in Minneapolis and elsewhere is rent control or stabilization.  Is that a viable solution?

            The case for rent control is simple:  Freeze rents or limit increases  to reasonable costs plus indexed inflation.  The hope is that this will squeeze unfair profiteering out of the housing market and  eventually make units more affordable.  Evidence does suggest that rent control  helps existing tenants, including  encouraging them  to remain in their current units for years.  This may stabilize  neighborhoods in healthy ways, perhaps increasing a sense of community and the building of social capital.  Rent control done right, will possibly stem the migration of middle class out of a city, also an important goal.

            But the textbook  economist’s  answer to whether rent control works is no.  For an economist, housing is like any other commodity that responds to market forces of supply and demand.  The only way to decrease the cost of housing is to increase the supply.  However,  this solution does not always work.  Developers, left to their own devices and market incentives, will build units that yield the highest profit  margin, and that is not necessarily middle class or low income housing.  Housing markets are segregated by income or class, and simply building more units will not translate into serving the overall housing market or populations.  The best way to provide affordable middle class or low income units is to build them to serve that market.

            But economists will argue that rent control does not work because of the market externalities it produces.    One, place caps on the rent that landlords can charge, and they will delay maintenance.  Two, rent control creates disincentives to build new units since the profits will not be there.  Three, owners will convert existing rental units to condos or coops in avoid rent control, thereby exacerbating the rental shortage.  Four, developers will move housing construction outside of the rent control jurisdiction, again  aggravating shortages.  Five, rent control make encourage tenants to stay in units for too long or in units that no longer serve their needs, creating a mismatch between apartments and occupants.  Empirical studies of what happened in San Francisco, California  and Cambridge, Massachusetts lend evidence to these claims.

            Overall, economists and critics assert that while rent control might benefit current tenants or occupants, longer term its impact is more destructive.  A parallel to this is what happened in 1978 with California’s Proposition 13 that froze property taxes on existing housing.  Its impact was to shift property taxes to new construction, driving up its cost and leading to some of the rental shortage and cost problems one sees lingering to this day.

            Moreover, in the case of Minneapolis, rent control cannot be examined in isolation, but in conjunction with other policies, such as the 2040 Comprehensive Plan.  It calls for significantly new construction through the elimination of single gamily zoning. The hope is that increased densification of housing will, among other things, reduce or stabilize rents.  Simply rezoning will not necessarily produce the type of housing units that help middle class or low  income households or ensure that  historically segregated neighborhoods will equitably integrate.  Here, rent control may counteract and benefits  that come from Minneapolis 2040 by again decreasing incentives to build more units of any kind.  It may push development into higher end condos or shift development outside the city.

            Finally, rent control may work well when there is a surplus of units to prevent speculation.  But as in the case of Minneapolis where there is already a shortage of units, squeezing rents will not solve a pre-existing problem, only make it worse.

            How can one address the lack of affordable housing?  Specifically building those types of units combined with rent stabilization policies is one way to do it.   Rental subsidies are another solution.  Three, Minneapolis is part of a larger metro-wide housing market and it needs to operate in concert with other jurisdictions or the Met Council to fix the problem.  Four, consider alternative housing strategies, such as  encouraging the construction of  micro-housing.  Five, more creative development solutions, such as waivers on height or unit  numbers in return for dedicated construction of middle class or low income units, should be considered.  Six, allow for pre-fab units, which are cheaper to build, to be sited in Minneapolis.

            Rent control alone is a crude solution to a serious problem.  The real problem is that  housing is a basic human need commodified, meaning its delivery is mostly subject to the laws of marketplace.  Rent control is a band aid on a larger problem  and if implemented wrongly it produces secondary effects that distort housing markets for decades.  Used more carefully and in conjunction with  other strategies, it may serve as a partial tool to addressing the problem that a free market delivery of housing produces.

The Myth of Partisan Backlash: The Real Lessons of Past Impeachments

Nancy Pelosi=s decision for so long not to pursue impeachment against Donald Trump   The basis of this wisdom is the 1998 Republican impeachment of Bill Clinton.  The real lesson of 1998 and other prior impeachments  may far different than what the national media and Washington insiders may believe, and, in fact, past impeachments may provide little clue to what might happen this time.was based on national media Washington, D.C. conventional wisdom that it will backlash against Democrats, ensuring his reelection in 2020, if not the loss of the House.

Each impeachment and trial is politically unique, taking place under specific factual circumstances.  Consider the three impeachments of presidents that have thus far occurred.

The first was Andrew Johnson in 1868.  He was a Tennessee Democrat, Abraham Lincoln=s 1864 vice-president who  became president upon the latter=s assassination.  Lincoln chose him as appeasement to the border states to hold them within the Union.  Yet Johnson opposed the abolition of slavery, impeded  Reconstruction, and did his best to stymie it via vetoes, non-administration, and the firing of holdover Lincoln  appointees.  While the 11 Articles of Impeachment that the House voted on were mostly about the firing of Secretary of War Edwin Stanton contrary to congressional law, the real issue was a congressional-presidential fight over Reconstruction.

The impeachment came at a time when many southern states from Confederacy were effectively under federal control, with 10 of them not readmitted for representation in Congress.  The House of Representatives voted 126 to 47 (with 17 members not voting), to impeach.  Given how few Democrats in the House, this was mostly a Republican effort.   The Senate acquitted Johnson by one vote.  It was a body heavily dominated by Republicans.

There was no partisan backlash among voters that appeared in the 1968 election.  The Republican Ulysses S. Grant won the presidency, Republicans lost two seats in the House, the Democrats picked up 20, mostly from reseating of the South.  In the Senate, Democrats gained no seats while the Republicans picked up 20.

In July 1974 the House Judiciary Committee voted on three Articles of Impeachment against Nixon, for obstruction of justice, abuse of power, and contempt of Congress.  These articles arose from Nixon=s  ordering of the Watergate break-in and seeking to hide the crime and hinder congressional  investigations.  The Committee  recommended the three articles  to the full House, mostly along party lines. Before a full impeachment vote, Nixon resigned.  However come November Democrats retained a large majority in the House even as they lost 13 seats, while in the Senate they increased  their control by five seats.

Finally, in 1998 House Republicans led by Speaker Newt Gingrich impeached Bill Clinton  on Articles of Impeachment arising out of his perjury before a grand jury and obstruction of justice.  The charges were the result of investigations undertaken by special prosecutor Kenneth Starr and whether Clinton had lied under oath about a sexual relationship with Monica Lewinsky.  Impeachment proceedings began before the 1998 election although the actual vote to impeach occurred in December.  The vote followed mostly party lines.  The Senate trial began in January 1999, concluding in February with an acquittal again mostly along party lines.

What is significant about the Clinton impeachment is that Newt Gingrich reportedly said that Republicans would pick up 30 seats by doing it.  They lost five and eventually Gingrich had to resign, some claim, because of this.   In the Senate, Republicans lost no seats. Clinton went on to serve out his term and left office in 2001 with one of the highest presidential approval ratings in years.

The conventional wisdom from 1998 was that the Republican impeachment was viewed as purely partisan, mobilizing Democratic voters to Clinton=s and their party=s defense.  This is the lesson or specter that supposedly haunts Democrats nowBimpeach Trump and fail and he survives stronger, wins re-election, and Democrats pay in the 2020 elections.

Yet this morale is too simplistic.  As much as 1998 was so different from 1868 and 1974, so it 2019 or 2020.  Yes, all three previous impeachments have been brought by the opposition party and many of the votes fell along partisan lines.  Perhaps this means that opposition parties are doing what they are supposed to doBhelp check the other party.  All three took place in highly partisan times, and all three centered on congressional-presidential struggles for power.  But there the parallels end, especially with 1998 and the present.

Trump is less popular now than Clinton was at impeachment time.  Lying about a sexual relationship (at least then) was seen as less serious than potential Articles of Impeachment against Trump involving abuse of power connected to his conversation with the Ukrainian president.  America now is a different kind of partisan country than 1998.  It could also be the case this impeachment mobilizes Democrats, especially after a probable Republican acquittal in the Senate.  Also, other variables, such as a slowing economy, concern over foreign affairs, and a host of other issues might mean that 2020 is far different than 1998.

 But also, given that the 1998 impeachment occurred after the elections that year, it might be better to look at what happened in the 2000 elections where Republicans lost two seats in the House, five in the Senate, but won the presidency in a contested George Bush/Al Gore election that came down to Florida.  In reality from 1998 to 2000 Republicans only lost seven House and five Senate seats and took by the presidency.    Yes sets were lost, but it is hard to attribute solely to Clinton=s impeachment.  The real issue may have been Gingrich=s over-promise and creating unreasonable expectations.

The point is that there is no one clear message about partisan backlash that can be told from the three prior impeachments.  This too includes 1998.  The conventional wisdom that a potential coming impeachment of Trump will necessarily benefit him and Republicans and hurt Democrats is either groundless or speculative at best, with at least a potential scenario it helps Democrats in 2020.

Why Bolton is Out--and does it matter?

John Bolton’s departure–whether fired or resigned-- as National Security Advisor for US President Donald Trump is only the latest example of a presidency that is disorganized and incoherent when it comes to American foreign policy.  His departure will do little to change the basic tone or goals of an administration whose chief characteristic when it comes to foreign policy is one at war with itself; or more accurately, a president in conflict with the US foreign policy establishment.
There are two ways to think about US foreign policy–its goals, strategy, and tactics, and then its decision making style.  While much has been made of how much Trump represented a significant break with past foreign policy practice, he still comes within the normal range of a board set of goals that goal back decades.    Before Trump the US was committed to super power supremacy and support for free trade policies that favored its interests. It supported multi-national alliances such as NATO, and support for western democratic principles remained a core foreign policy objective for the US.
Despite Trump’s political rhetoric, the basic goals of US foreign policy did not change.  This was true  part because Trump’s selections for his advisors have come from the traditional US  foreign policy establishment, including John Bolton.  Although there may have been many within the US foreign policy establishment and then Trump administration who wished to take more aggressive and perhaps in some cases a more militaristic approach toward Russia, Iran, North Korea, and Venezuela, such as Bolton, those who advocated more diplomatic means, both camps shared common US goals regarding these countries to contain their influence or limit nuclear capacities.
But the real problem within the Trump administration was not so much a difference of tactics or strategy among his advisors so much as it was the personal foreign policy style of Trump.  Repeated stories reveal how he ignores his advisors, does not read intelligence reports, and how he acts on personal instincts and emotion.  Trump also demands personal loyalty.
Bolton’s problem was twofold.  One, he had very strong opinions and he was not afraid to share them, even with the president. This raised the question of personal loyalty.  Second, the Trump administration’s foreign policy team has already changed over several times in less than three years, reflecting the erratic nature of the president’s personality driven approach to making decisions.  These shifts in teams reflect Trump’s own lack of a worldview or consistent way to think about foreign policy.  He has ranged from more military muscle when he brought in all the generals, to less militaristic and more focused on trade wars.    Trump right now seems focused on trade, the economy, and a more isolationist foreign policy that relies less on threats of military might than what suited Bolton.
In some ways, Bolton was out of fashion with this period of Trump’s presidency.  In reality it does not matter if Bolton was fired or resigned.  This debate is for the issue of appearances.  If he resigned, Bolton becomes another former Trump advisor who gets to criticize  the president, if he was fired the president gets to show leadership and claim Bolton failed to do his job.  The difference in resign or fired is in whose is actually making the decisions in US foreign policy, the bureaucrats and advisors or the president.
In terms of Bolton’s replacement it is not clear what foreign policy phase Trump is now in.  But at least short term Secretary of State Mike Pompeo will become even closer to the president in advising on national security matters.  Pompeo and Trump appear for now to work well together, and perhaps Bolton is out because he lost the battles he was picking with the Secretary of State.  Any replacement for Bolton will have to be someone who get along with Pompeo, suggesting perhaps Brian Hook, Pompeo’s advisor, might be a leading candidate.
Overall, look for little change in the Trump administration’s post Bolton foreign policy.  It will remain a presidency where decisions are intensively personality driven and where Trump is at odds with his own foreign policy team and establishment.

Are They High? Why the Minnesota DFL is pushing marijuana legalization

            The Minnesota DFL is making legalization of marijuana a 2020 election issue. Governor Walz has instructed his agencies to prepare for it and Democrats are kicking off a statewide listen tour to tout legalization’s benefits.  Does such a strategy make political sense or are the Democrats high?

            From a public policy perspective, the current criminalization “war on drugs” has failed. I argued that in a Texas Tech Law Review Article 26 years ago, well before it was fashionable to advocate for legalization.  The current criminalization approach has failed to stop drug usage, imposed racially arbitrary sentences, and cost hundreds of billions of dollars in government enforcement and lost personal freedom and productivity due to incarceration.  Maybe for some, usage of marijuana is a matter of personal freedom to use a harmless drug.  However, as we have seen with the opioid crisis and some research on prolonged use of marijuana, use of any drugs ought also to be viewed as a public health issue with the question being what is the best way to regulate a specific drug to address it real or potential health issues.  Criminalization has failed with marijuana and legalization of some sort is the answer.  From a public policy perspective the question is what type of legalization.

            But policy change requires political opportunity.  The DFL sees the time as now to advocate for it., despite the fact that the Republican State Senate Leader Paul Gazelka has said legalization will not happen next year.  So if legalization is dead next year why push it?

There are several reasons.  The first is polling data that suggest 64% of those surveyed by  Gallup favor legalization, including in Midwest states such as Minnesota..  However, what legalization means varies by person.  A Mason-Dixon poll found recreational legalization support only at 37%.  Neither poll indicated that recreational legalization was a top issue for many voters.  Thus, while it appears that there is majority support for legalization, it is less clear that recreational use is a top political or policy priority for a large percentage of the voters. 

For the Minnesota DFL, they may be hoping that supporting marijuana legalization is the 2020 equivalent of the 2012 marriage amendment.  In that year the Republicans placed on the ballot a state constitutional amendment banning same-sex marriages.  The theory was that support for the amendment would be so strong that it would help the GOP maintain control of the state legislature and win Minnesota for presidential candidate Mitt Romney by energizing the party base.  It backfired.  Instead, it energized the DFL, especially young voters, and it resulted in flipping the state legislature to Democrats who in 2013 legalized same-sex marriages in the state.

More specifically, though, Democrats may be reading numbers from the 2018 election.  That year two pro-legalization parties in Minnesota qualified for major party status.  In the race for State Auditor, the Legalize Marijuana Now Party received 133,913 votes, whereas in the race for Attorney General,  Grassroots Legalize Cannabis received 145,748, or 5.28% and 5.71% of the statewide vote for those offices respectively.  In running for office, the two pro-legalization parties opted  not to run against one another to prevent splitting of votes.  This is important because one can argue that those who voted for one of the pro-legalization parties are those who view the issue as their top priority. This means not that 10% of the voters supported pro-legalization parties, but something around 5-6% of those casting votes in either the State Auditor or Attorney General races.

The Minnesota Secretary of State indicated that 2,611, 365 individuals cast ballots in 2018.  Assume that the 145,748 Grassroots Legalize Cannabis vote is a fair estimate of those who support legalization as a primary or top issue.  This works out to 5.58% who voted for a pro-legalization party.  In the counties of Hennepin, Ramsey, and St. Louis,  31,976, 14,720, and  5,471 respectively voted for a pro-legalization party or candidate.  In total, these three counties constituted 62,167 or 42.7% of the pro-legalization vote in the state.  The other 56.3% was clumped in urban areas or college-town areas, with thin support in more rural areas.  Even in suburbs, support was  less.  For the Attorney General’s race, in Edina and Eden Prairie, two typical and more affluent suburbs that might be likely to support legalization, 2,462 out of 62,523 voters or 3.94% of the voters went for the Grassroots Legalize Cannabis Party.

What do all these statistics suggest?  Perhaps they underestimate support for recreational legalization as a top priority.  But they do indicate a small percentage of the population cares about the issue and the DFL feels it cannot ignore it.  Failure to support legalization may mean more voters drift away from the party, making it harder to pick up a Senate majority or mobilize voters for statewide races.  Yet, the geographic distribution of support for legalization  is clumped, strongest in areas where the DFL are already strong.  Moreover, if the race for control of the state, especially the legislature, goes through the suburbs, especially with suburban women, it is not clear that a  strong legalization approach makes sense.  In talks I have given, when legalization is raised, many suburban women exclaim “Another thing I  have to protect my children from.”

Perhaps marijuana legalization will do the same in 2020, mobilizing young voters to come out and vote. Or perhaps it will alienate suburban (female) voters, or it leads to a counter-mobilization by the GOP who are already motivated to come out to support Donald Trump.  This is the gamble the DFL is taking going into the 2020 elections in its advocacy for recreational marijuana.