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A less discussed feature of the Mr. Trump’s much discussed travel ban from January 27, 2017 (See full text here) [1] imposes a temporary (120 day) ban on the US Refugee Admissions Program [USRAP]. The suspension can be found in section 5 of that order. Section 5, subsection B contains the following language:

Upon the resumption of USRAP [US Refugee Admissions Program] admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize 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 [emphasis added by GC]. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

Subsection E has this language,

Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution [emphasis added by GC], when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.

These clauses seem to prioritize admitting Christian refugees in preference to Muslim refugees. As far as I know, the refugees the US is most likely to receive right now come from Muslim-majority countries. That fact (if it is a fact) suggests Christian refugees have one more tool to draw on than Muslims do when claiming asylum. These clauses also  reinforce Mr. Trump’s statement elsewhere, on the Christian Broadcasting Network that he intends to prioritize Christians over others when it comes to admitting refugees [2].

On balance I think this preference is probably a bad thing. But it’s a closer call than I believed at first.

Is this constitutional?

That question is more for the lawyers in the audience, although my lack of legal training won’t prevent me from answering. There’s a lot I’d need to know, that I don’t know, to answer that question. The practical function of these religious exemptions would be to prioritize Christian refugees over Muslim ones. Whatever one thinks of such prioritization as policy, I don’t think it’s a slam dunk to say that it’s unconstitutional. Here, by “unconstitutional” I mean a federal court will strike it down.

My layperson’s understanding is that the federal judiciary grants wide latitude to the executive and to Congress in determining who gets let into the country. My layperson’s understanding might be incorrect. But I can imagine a non-specious argument to support the above-referenced clauses from the EOse in court. That argument would run like this:

  1. Religious persecution is a legitimate reason to grant asylum.
  2. Religious persecution must be defined somehow.
  3. Limiting “religious persecution” to minority religions is a commonsense way to make that definition, inasmuch that a member of a majority religion is unlikely to be persecuted because he or she is a member of that religion.
  4. The language of this exemption would enable members of other religions, including Muslims, to request asylum for religious reasons presuming they are fleeing states in which Islam is a minority religion.

If it so happens that the “he religion of the individual is a minority religion in the individual’s country of nationality” language has been a standard test used by past administrations (and I don’t know if it is), then one can advance a point number 5 to the argument above that the EO is only following precedent.

Even if such language is standard practice and even if courts have generally deferred to the “political branches” on such matters, standard practice and deference can change. But I do think that speaking strictly in legal terms, it’s not at all clear to me that this portion of the EO is unconstitutional.

More things I don’t know

In a discussion Over There on this matter, I was notified of a few things I didn’t even realize I didn’t know. I had trouble finding the exact comment, but someone suggested that “refugee status” ans “asylum status” are different things. I didn’t know that.

In another thread, or subthread, some people argued that I misconceived of how asylum/refugee status gets assigned and suggested that pre-Trump, the standard practice and statutory/treaty obligations were to grant asylum for religious persecution because people are targeted for their religion, regardless of whether theirs is a minority religion. Those comments–right or wrong, probably neither wholly one or the other–are further reminders that I’m not an expert in the legalities or the history of the matter.

But it’s a bad idea anyway

While I’m not prepared to say those portions of the EO are unconstitutional (again, using my constricted definition of “unconstitutional” as “something a federal court will likely strike down”), I’m prepared to say those exemptions are bad ideas.

My first concern is practical. As some said in the above-mentioned Ordinary Times subthread, the “religious minority” standard seems to assign to immigration officials the duty to define what is and isn’t a minority religion. How much does a religious practice have to differ from that of the majority to constitute a new religion? Can someone who practices a non-standard form of Islam (say, e.g., Wahabbism) claim religious asylum because it’s a “minority religion”? Is there some sort of creed people have to profess? Do they have to know how to say “shibboleth” [probably safe for work, but it is a Youtube video]?

My other concern builds on the practicalities. Does this impose in practice a religious test? To me, a religious test for obtaining asylum strikes me as wrong. If we generally accept applications for asylum for religious persecution, perhaps those who apply ought to demonstrate they face persecution for their religion, but ought not to have to demonstrate they profess a certain religion as a precondition.

But still I hedge my bets

In the original draft of this post, I contemplated saying the “Christian preference” clauses appeal to Christians who believe the Golden Rule comes with an asterisk:

Do unto others* as you would have others do unto you.

*….unless those others aren’t Christian, then do whatever the hell you want.

But two concerns suggest my inclination to oppose those clauses of the EO is not quite as defensible as I thought.

First, my “ought’s” here conflict with each other. What if a non-Christian is persecuted because they are believed to be Christian? Ought that person be able to claim religious asylum even though they’re not persecuted for “their” religion?

Second, what if a religious group or ethno-religious group faces persecution directed specifically at it? In that case, it doesn’t strike me as beyond the pale bad for the US to adopt a policy to help members of that group and it doesn’t strike me as beyond the pale bad to define that policy in such a way as to make it easier for them to claim asylum.

Consider this comment from Phil Ebersole at Unqualified Offerings:

….I have no problem with prioritizing Christian refugees, if that is the intent [of the clauses I mentioned above, which I had introduced into discussion there–GC]. Christians are subject to horrible persecution in the countries named under the order, as a result of the jihadist wars instigated by the United States and Saudi Arabia. They are persecuted even in the refugee camps, which is why they are under-represented among refugees admitted to the United States. They are 10 percent of the population of Syria, for example, but only a tiny number of the Syrian refugees admitted to the United States.

While I don’t read Ebersole’s blog much, it’s worth looking at and I think if you do, you’ll agree with me that Ebersole is no fanatic, right-wing or otherwise. Combine that with the fact that I’m just mostly ignorant of the situation in Syria or most of what goes on in West Asia. Yeah, I know there’s a civil war, and I know that ISIS exists, and I know probably enough facts to earn me at least a B- on the final exam for a current affairs 101 class. But that’s about it. If Ebersole is right, then perhaps that preference should somehow be policy. And because Congress dithers, maybe it is appropriate for the president to use what authority he has to expedite the policy.

What to oppose and why….that’s an important question

I fall back on my criticisms against the religious exemption” clauses of the EO as bad policy. If things are as bad as Ebersole describes, Mr. Trump could do better than restrict most refugees but make special exemption that in practice seems designed to favor Christians. Why not a blanket religious exemption? Of course, I’m pro-admitting more refugees than the US has already and have no particular objection to them being Muslim or Christian. So my priors are very different from Mr. Trump’s.

I also fall back on what’s unstated in the EO but stated at such events as that reported on the Christian Broadcasting Network. Whatever effect the EO may have in practice, and whatever policy I might theoretically support would be consistent with the EO, the spirit animating it seems to be malicious in a way that similar policies implemented by Mr. Obama would not seem to me to be. I’m not sure citing that “spirit of malice” would or should be a viable strategy to contest the EO in court, but it is, in my opinion, to be opposed.

If I or we are going to criticize what Mr. Trump does, we need to focus on the particulars and why. Do we oppose the EO because it’s unconstitutional, or is it unconstitutional because we oppose it? Do we oppose the EO because it seems to carve out a specific religious exemption, or do we oppose it because the exempted profess Christianity? Do we oppose it because it’s bad policy, or because it’s Mr. Trump’s policy? Maybe these contrasts aren’t as stark and “rhetorical” as they probably sound. Maybe Mr. Trump is so bad that even on-balance good (but still questionable) policies ought to be opposed.

In the meantime, of course, I realize that other people’s lives and livelihoods are affected much more immediately than mine are. I’m in the cheap seats and am able to write these notes from my computer without really having to face (at least for now, knock on wood) the reality of what the US chooses to do.

[1] Executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” January 27, 2017, <https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states> [accessed February 4, 2017]

[2] David Brody, “Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority as Refugees,” The Brody File [blog], January 27, 2017  <http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees> [accessed 1-30-2017]


Category: Statehouse

[UPDATE: 1-29-2017: I stated in the original post that the EO has no list of countries. That was incorrect. It names Syria, and it refers to “section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12).” Upon inspection of that statute/code, I find that it refers to a program for visas that makes certain people ineligible, namely those who have “been at any time on or after March 1, 2011″ in Iraq or Syria or “in a country that is designated by the Secretary of State under section 4605(j) of title 50 (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 2780 of title 22, section 2371 of title 22, or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism” or “in any other country or area of concern designated by the Secretary of Homeland Security.” In my quotes, I’ve left out references to certain paragraphs, etc.]

[UPDATE #2, 2-6-2017: Here’s the memo. Not sure when it was added, but I checked this morning.]

As you may have heard, there’s an uproar over Mr. Trump’s decision to issue a travel ban on Friday (Jan. 27, 2017) from selected countries and over that decision’s affect on people arriving within the last two days. See this WaPo article [paywall] [1] The why’s and wherefore’s of the ban and the impact it will have on immigrants and those who have been granted permanent resident status are being debated, and that’s where the key point of concern ought to lie.

But a question for Mr. Trump: Where is the order on your whitehouse.gov page? I couldn’t find it on the “presidential actions” tab that your press office uses to update citizens on what you’re doing. I had to hunt elsewhere for it and finally found the text of it at the New York Times. It’s probably listed somewhere at the Federal Register online, but I’m still a novice at navigating those pages.

Here’s the text the New York Times offers, saying it was supplied by the White House.[2] That text itself doesn’t list the banned countries. I presume that list is found in an order issued by, say, the Department of Homeland Security.

I’m obviously implying that the White House is less than eager to be transparent on this issue. However, it’s quite possible that it’s my own inexperience at monitoring executive orders that’s making me have to rely on media sources. At any rate, now you have a link to it in case you wanted to read it. (Disclosure: I haven’t read it yet.)

[1]  Brady Dennis, Jerry Markon, and Katherine Sahver, “Despite growing dissent, Trump gives no sign of backing down from travel ban,” Washington Post, January 29, 2017.  https://www.washingtonpost.com/national/health-science/trump-gives-no-sign-of-backing-down-from-travel-ban/2017/01/29/4ffe900a-e620-11e6-b82f-687d6e6a3e7c_story.html [Accessed 1-29-2017].

[2] “Full executive order text: Trump’s action limiting refugees into the US,” New York Times, January 27, 2017 https://www.nytimes.com/2017/01/27/us/politics/refugee-muslim-executive-order-trump.html [accessed 1-29-2017]


Category: Statehouse

[Note: I’ve changed the title of this post on January 29, 2017. The original title was “Mr. Trump’s memos, #1: deportation priorities and sanctuary jurisdictions”]

On January 23, 2017, Mr. Trump issued an executive order, “Enhancing Public Safety in the Interior of the United States.”

Summary

The executive order does many things, and I will focus only on two of them. First, it declares that his administration will seek

Ensure that jurisdictions that fail to comply with applicable Federal law [concerning immigration–GC] do not receive Federal funds, except as mandated by law

Second, the EO also sets guidelines for deportation priorities. The department of Homeland Security and the Justice Department are to prioritize for deportation those immigrants who

(a)  Have been convicted of any criminal offense;

(b)  Have been charged with any criminal offense, where such charge has not been resolved;

(c)  Have committed acts that constitute a chargeable criminal offense;

(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e)  Have abused any program related to receipt of public benefits;

(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

My thoughts

It is unclear to me what federal funds can actually be denied. What I would need to know is how federal funds are currently granted to local jurisdictions and under what conditions. I suspect Congress allocates such funds either by directly dispensing it, by creating agencies that dispense the funds through prescribed rules, or by granting the executive branch the discretion in certain cases to allocate funds to local jurisdictions. Funds dispensed the first two ways, I presume, are “mandated by law” while those dispensed the second way would fall under Mr. Trump’s discretion.

I would also need to know whether a local jurisdiction would be able to sue in court if funds typically allocated for reasons unrelated to immigration enforcement are denied because that local jurisdiction refuses to comply with that enforcement. There may be a 10th amendment issue at stake. My non-lawyerly reading of NFIB v. Sibelius  and of how the SCOTUS arrived at its decision in South Dakota v. Dole suggests the feds can go only so far in conditioning a local jurisdiction’s receipt of funds upon that jurisdiction performing certain actions.

I suppose if certain funds are allocated to enhance a jurisdiction’s enforcement of federal law, and especially federal immigration law, then it will be relatively easy to withhold funds. But the further the funds’ purpose strays from immigration enforcement, the harder it will be for the administration to deny the funds. In short, I think Mr. Trump probably has an uphill battle if he wants to deny even discretionary federal funding to “sanctuary jurisdictions.”

For deportation priorities, one thing I don’t know is how much the priorities are mandated by law and how much truly reside in the executive’s discretion. It seems to me that absent some legislative directive that the executive “shall” deport someone, the president has the discretion to decide against whom he wishes to act. If someone is in the US illegally, that fact in itself makes him or her a candidate for deportation.

I suspect–or hope–that deportation involves at least some due process. At the very least, the government should, in my opinion, have to prove that the person to be deported is in the US illegally. I’d also hope that the government must dot its i’s and make sure the paperwork is filled out correctly and that failure to do so would at least frustrate the government’s claim.

When it comes to the actual priorities stated in Mr. Trump’s EO, they can be construed to subject anyone to deportation who is already eligible. Therefore, that portion of the EO seems less like “priorities” and more like a statement that the executive will deport whomever it chooses, especially the statement singling out people who “[i]n the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” The provision that someone who has “been charged with any criminal offense, where such charge has not been resolved” suggests to me that all any officer will have to do will be to accuse someone of a crime then that person will become a “priority.” Do “willful misrepresentation in connection with any official matter or application before a governmental agency” and abusing “any program related to receipt of public benefits” apply to registering one’s children for school or for such things like getting a fishing license?

Here’s what I don’t know. Perhaps the terms stated in the list of priorities have well-established meanings of which I’m ignorant. Perhaps what seems like the widest statement of discretion–the risk to public safety or national security–requires the immigration officer to jump through certain hoops or tests before he or she can invoke it. And perhaps even Mr. Obama had reserved that type of discretion for the immigration officer.

What I’d like to see

I don’t have strong convictions on immigration. I’m not bothered by having to press “1” for English or about people speaking languages around me which I can’t understand. (When I was much younger I had such problems, but I don’t anymore.)

I don’t hold much of a personal grudge against people who are in the US illegally. I get a little testy at the many discussions of “the dreamers” that ignore completely the role their parents played in putting them in their situation. But that testiness doesn’t affect my belief that the humane and necessary thing to do is to accommodate them and regularize their status. I would leave DACA in place, as Mr. Trump, I understand, has decided to do for the time being. I believe that certain people are in the short term facing labor market competition with immigrants and that their suffering ought to be acknowledged. But I believe that in the long term and in the aggregate, immigrants contribute more than they take.

I do have a philosophical view that having borders implies restricting access somehow. I believe that there are more and less humane ways to do it and that we ought to opt for the more humane. But I also believe that any form of restriction, no matter how fair or how humane, is going to catch some good, decent people in a bind they don’t personally deserve.

When it comes to denying funds to “sanctuary jurisdictions,” I don’t have a problem with, say, denying immigration enforcement funds to local jurisdictions that refuse to comply with immigration laws. I’d have a much greater problem the further one goes from “immigration enforcement” to funds for other purposes. Even if I’m right that the president will face an uphill battle in an attempt to deny such funds, it’s likely that there will be a battle and a number of years of uncertainty. And while I suspect my prognosis is probably right, I’m not certain. And even if I am mostly right, perhaps the battle will move the needle. Trump might not be able to deny a whole loaf to sanctuary jurisdictions, but he might be able to deny a much bigger portion than I’ll have anticipated.

When it comes to the priorities, I’d set them differently. My highest priority would be, in descending order of priority, the following:

  • Those convicted of, or who confess to, violent felonies
  • Those convicted of, or who confess to, violent misdemeanors
  • Those convicted of, or who confess to, felonies
  • Those convicted of a conspiracy to commit a violent crime

I would also want to reaffirm certain due process guarantees that I believe people in the US illegally should already have, as I noted above. I would also expand asylum options and admit more Syrian refugees.


Category: Statehouse

Some Trump opponents argue that we shouldn’t “normalize his election.” It’s a losing argument and not likely to convince anyone of anything. In fact, it’s likely to make some people defensive who can otherwise be brought to oppose Mr. Trump or at least some of his most egregious actions.

The intention behind the argument

Trump’s campaign was based on an unprecedented appeal to racism, xenophobia, and violence. (Or “unprecedented” for the candidate of a major party since World War II.) A good number–perhaps small, but still too many for comfort–of his supporters identify openly with the “alt right” or other white nationalist creeds, and one of his “senior” advisors used to be an editor for an online magazine that gave a voice to some alt right groups. Further, it appears that Mr.Trump has either declined to disavow them, waited too long to disavow them, or has been too equivocal in disavowing them. (For a dissenting view, see Scott Alexander.)

There are other sins, too, and I haven’t even touched on the in some ways more disturbing implications of Mr. Trump’s presidency for foreign policy.

Those who say “don’t normalize” the election are saying this is no ordinary transfer of power. They’re pushing back against a tempting story that goes, “well, two people ran for election and one of them won, so let’s all come together and support the new president, and better luck next time to the losers.” The “don’t normalize” people are saying that approach is insufficient. It doesn’t represent the gravity of what has already happened and doesn’t create a bulwark against what might happen. In a very real sense, that approach makes “normal” that which ought never be normal and until recently wasn’t even openly sayable.

An unnecessary hurdle

But raising the “don’t normalize” argument creates an unnecessary hurdle for Trump opponents. With the “don’t normalize” argument, they now have to explain what normalization is, why it’s bad, how not to normalize, and how any given action a “normalizer” undertakes actually constitutes normalization–all that before and in addition to criticizing anything of substance.

And the what’s, why’s, and how’s are more difficult than it might seem from a Trump opponent’s perspective. For one thing, what does it mean as a practical matter to “normalize”? As Noah Millman has said,

If people who opposed Trump refuse to “normalize” his government, what does that mean? That they will, literally, refuse to recognize its authority — refuse to pay its taxes, resign from service in its military, and so forth? Surely not.

I’ll add that it’s impossible NOT to normalize (for certain values of “normalize”) without making some very difficult decisions. If you have a 401k or an investment account, are you prepared to disinvest from any stocks or bonds that have a stake in “normalizing” the new presidency–which is pretty much all of them? Are you prepared, as Millman says, to refuse to pay taxes, etc.? Do we start a civil war? If so, who do we kill? (For the record, I disavow killing or civil war. I’m pointing out that one reductio to which the “don’t normalize” talk can go is to a call for violence. Again, that’s not something I’m willing to endorse.)

More from the same Millman article:

I think what people mean when they say that we can’t “normalize” Trump’s behavior is some some version of “we need to keep reminding people that this is not normal.” But the “we” and “people” in that sentence are doing all the work.Whoever says that Trump shouldn’t be “normalized” is implying that somebody — the press, perhaps? — is in a position to decide what is normal, and to inform everybody else of that fact. But that’s not how norms work, and neither the press nor anybody else is in a position either to grant or withhold recognition to the new government.

In fact, the word is a way of distracting from one of the crucial jobs at hand. Trump, for example, is on strong legal ground when he says that he is exempt from conflict of interest laws. But laws can be changed — and in this case, perhaps they should be. To achieve that requires making a case, not that what Trump is doing isn’t “normal,” but that it is a bad thing worth prohibiting by law. Saying “we mustn’t normalize this behavior” rather than “we need to stop this behavior” is really a way of saying that you don’t want to engage in politics, but would rather just signal to those who already agree with us just how appalled we are.

What is to be done?

I don’t know the answer to that question. Perhaps because Trump hasn’t even assumed office yet, “don’t normalize the election” might be a more winnable or at least plausible argument because he hasn’t had a chance to do much yet other than signal certain policies and criticize people’s acting ability. Maybe when the time comes, we can follow Matt Yglesias’s suggestion and focus on the actual policies and humdrum of politics.

Or maybe we could do more than that (although we should probably do that). Take Rebecca Trotter’s blog. She’d possibly disagree with my admonition against the “don’t normalize” argument, but even if she does, she offers concrete things we can do in her series of “daily acts of resistance” posts and her ideas on “what resistance to Trump looks like.” I’m don’t read her as often as I should–and I’m not prepared to say I necessarily agree with her ideas for resistance–but she’s offering something concrete.

Envoi

Maybe Trump is an authoritarian who may bring us closer to the coming next presidential tyranny. Maybe he’ll turn out to be the weak-willed, thin-skinned, incompetent his actions so far suggest he is. A third possibility is that he’s just a regular politician who’ll both modify, and fit in to, the institutional norms and incentives that are the presidency.

I realize there is real fear out there. Perhaps events will prove that fear unfounded, but I can’t and won’t deny that the fear is genuine and plausible. I’m not part of the demographics most likely to be targeted by what’s going on, and I realize that this fact gives me a detached view that others can ill-afford to take. My historian’s sensibility warns against judging people who are in circumstances I can never understand perfectly. But I do believe the “don’t normalize” argument at best will simply not work and at worst will help foster a defensive reaction in favor of Trump.


Category: Statehouse

The forbidden analogy.

According to Godwin’s law and its corollaries, Hitler and Nazi analogies are almost always a bad idea. They are more likely to derail a conversation than add to it.

If you’re trying to convince someone of something, comparing them to Hitler and the Nazis is probably the wrong way to get them to listen to you. It also leaves room for one objection. If someone is so like the Nazis that the comparison is apt, they might not amendable to argument anyway. (Actually, I’m not so sure. I see some moral distance between the German who didn’t approve of but who acquiesced to Nazi rule and high-ranking leaders of the party. This might be offensive, but most citizens of the United States acquiesce to some pretty brutal policies who if asked would claim not to approve. Not saying that’s the same thing….which is one of the problems with Nazi analogies in the first place.)

The analogy is distracting. If someone is to be opposed because he is “a lot like Hitler,” then it shouldn’t be too hard to point out the ways he is objectionable without saying “and this is what the Nazis did, too.” If someone really wishes to single out an ethno-religious groups for “special treatment,” or if he endorses politically motivated violence, or if he threatens to revive something like the Palmer raids, then it shouldn’t be too hard to argue that that person is proposing something wrong. If it is hard, then your problem is different from mere analogizing.

Finally–and I’m not sure I’ve heard this objection raised before–the analogy can normalize Nazism. For the purposes of naming things as they are, of course, Nazis should be called Nazis. Neo-Nazis should also be called Nazis. The “alt right”….maybe call them Nazis, I guess, depending on who we’re talking about and what they advocate.

I’m not sure how far down the ladder it’s okay to go, though. If someone is in principle persuadable to your view, or if they supported the “unsupportable” for non-Nazi’ish reasons, then it’s possible overusing the word “Nazi” in describing that person might make less illegitimate a term that heretofore has been an automatic insult.

In a sense, overuse of the word grants Nazis “official opposition” status. If that’s how things are, then that’s how they are. But we shouldn’t overdetermine the result.

Please don’t misunderstand me. If someone comes to think the term “Nazi” is now “less illegitimate” than it was before, the fault lies primarily with that person. People sometimes choose evil, and if we make it easy for them to do so, we share some of the blame. But the principal responsibility lies with the chooser.

The analogy revived.

In two fairly recent posts Over There, I’ve seen something like that analogy used for our present situation.Before I discuss them, I’d like to point out that I am citing only the parts that speak to the issue of Nazi analogies. Each post makes more complex arguments and should not be judged solely by what I excerpt here. So read the whole thing(s).

The first post is Saul De Graw’s reflections on how bad the new presidential administration might be:

We also like to think that our laws and Constitution will protect us from the worse from happening but laws and Constitution are only as strong as the people themselves. A friend of mine posted another story on Facebook. The author of the post’s grandmother was a Jewish elementary school student in Hitler’s Germany. She needed surgery in 1932 and 1933. In 1932, all of the girl’s classmates and teachers came to visit her in the hospital. In 1933, no one did.

This story might seem hyperbolic (and it does raise Godwin’s Law) but it demonstrates that the norms of bigotry can change rapidly and seemingly overnight. Maybe the girl’s classmates and teachers did not become more anti-Semitic, but they knew it would be a serious social cost and possibly a physical cost to visit their Jewish classmate in the hospital. Most people are go along and get along types. You don’t need a nation of willing executioners. You just need enough people willing to commit acts of violence with the consent of government, and most of the rest of the people will just put their heads down to save themselves and their families.

The second is Mike Schilling’s takedown of the argument that liberals’ alleged smugness played a role in the president-elect’s victory. (In my opinion, the Nazi analogy lurks in the background, although Mike himself makes no explicit reference to it and the person he’s referring to is a post-World War II “scholar.”):

In case you’re not familiar with the work of Kevin Macdonald, let me summarize. In analyzing the recurrence of anti-Semitism through history, he found the usual explanations wanting, and hit upon one that, while not new, had been oddly absent from almost all recent academic discussions: they deserve it. Jews really are awful, he observed: clannish, avaricious, and amoral, with disdain for societal norms and non-Jews in general that makes them a cancer on any society foolish enough to admit them. Anti-semitism is an entirely natural response, in effect the immune system working to fight an infection.

Much of the reaction to the recent election has included a similar insight, which, much like Dr. Macdonald’s, is moving beyond the area that once hosted it. [The president-elect’s] popularity among voters is explained by the fact that liberals are smug. Of course voters dislikes liberals: who wouldn’t? They’re whiny losers, overeducated but lacking any sense, haters of patriotism, religion, and everything genuinely American, nanny-staters, Godless socialists, baby-killers, special snowflakes who need safe spaces. And worst of all, smug. No wonder their political fortunes are slipping; no one can stand them. (Even worse for fans of Dr. Macdonald, liberals are often… Well, you know.)

What surprised me wasn’t so much that the analogy was used (or in Mike’s case, implied). That’s to be expected on a liberal-leaning blog in which almost all authors and contributors opposed the president-elect and believed his campaign represented an unacceptably racist, xenophobic, or authoritarian turn in US politics.

What surprised me slightly more was that no one, as far as I can tell, actually complained about Godwin’s law. The closest was one comment to Mike’s post, which complained that “[i]t seems like the point of this article was to stack the concepts of liberalism, smugness, and anti-Semitism on top of each other in so many combinations that it will seem like anyone who accuses liberals of smugness is anti-Semitic.”

A lot of things could explain the unwillingness to call out Godwin’s law.  It is a liberal-leaning blog, after all. And for each OP, the main point wasn’t the Nazi analogy but some other thing. In Saul’s case, he forthrightly admits the dangers of “Godwin’s law” and in Mike’s case, as I’ve said, the analogy was only implicit. And maybe those posts just happen to show up on the right day/time so that no one chose to discuss the analogy’s aptness.

Directing the analogy inward.

I’m not inclined to call Godwin’s law, either. Whatever differences I might have with Saul’s post, I have no standing whatsoever to tell him that he doesn’t really fear what he says he fears. I’d go even further and say his”…and most of the rest of the people will just put their heads down to save themselves and their families” is too charitable.It’s far from clear that the question was always saving oneself and one’s family. It might have been more like “saving oneself the inconvenience and opportunity cost” of raising even a token opposition.

For Mike’s post, a more charitable reading of his analogy is that he’s identifying a prior instance of fallacious reasoning and noting how in his opinion current commentary succumbs to similar reasoning. I’m not sure I agree completely–and I see more disanalogy than analogy–but I can’t say he’s wholly wrong, either.

In fact, looking to myself, the chance that the analogy might have some teeth haunts me in our present situation. My insistence on “understanding the voters, my own “gut” preference for the president-elect, and my perhaps too cheerful optimism that (to use what seems to be our newest cliche) “our institutions can survive the stress test”–these all suggest to me something similar to the German citizen who silently disagreed with the Nazis’ racial policies or who complacently believed Hitler might not be so bad or that his ministers and the institutions of civil society could control him.

The dangerous thing is that I could probably get away with complacency. I’m not a member of the demographics most likely to be targeted, although some of my loved ones are. And Saul said, who’s targeted and who’s not targeted can change, sometimes very quickly.

I really want to agree with Scott Alexander. He has written that as bad as the president-elect is likely to be, he’s not the white nationalist wolf some people are crying. And on paper, Mr. Alexander is right. As far as I can tell, the last president who indulged in overt racism and white nationalism was Woodrow Wilson, and the next president ain’t no Wilson. That’s probably both a good thing and a bad thing. But I also fear the new guy is as much of a wolf as he can be.

More to the point, I do realize that the way things happen in the US are different from how they happen in Europe. Not “exceptional,” just different. Our persecutions and oppressions tend to be more decentralized, though no more benign for that. And I must keep things in historical perspective. Maybe a few months from now I’ll find the new president is just a regular politician with a populist streak, of the sort we’ve had before and have survived.

Conclusion.

Even flirting with the Hitler analogy by implication compares those of my family, friends, or readers who voted for the president-elect to Germans who voted for national socialism in the 1930s. I ask only that they realize I’m directing this analogy to myself and my own complacency. I disagree strongly with their decision, but I refuse to direct the analogy to them. As an analogy, it works best for removing the beams in the eye of those who use it. Motes in others’ eyes require a more precise instrument.


Category: Statehouse

I don’t like Donald Trump. I hope he’ll be merely a bad president and not a disastrous one. I don’t like Trumpism, either. I hope (but am not optimistic) the anecdotes of racially and sexist motivated violence are either exaggerated, reported only because they’re topical, or at least don’t represent a new trend. The night of the election I was depressed and worried. You might not believe it, but I didn’t sleep at all. Not a wink. I just lay awake in bed thinking about the future.

And yet, when people in my life criticize Trump or his supporters, I get very defensive for some reason. By “people in my life” I mean family members, close friends, coworkers, and people on the blogosphere. Even my belief that we do indeed need to understand our opponents represents a certain defensiveness because my go-to (with some past exceptions) is usually to understand Trump supporters or non-liberals in general and not to understand the liberals who oppose Trump.

Perhaps some of this has to do with “flippism,” an idea I got from Jaybird, a commenter Over There. In relevant part,

It’s the basic idea that if you don’t know which of two choices are before you, you should flip a coin. Not because you should do what the coin says, mind, but because the moment the coin is in the air, you’re a lot more likely to say “OH I HOPE IT’S HEADS” at which point you’ll know which choice you actually prefer in your gut.

Then you just have to figure out how much weight to give your gut.

I bring that up because hypocrisy can work that way for people who are on the fence. Let’s say that you’re torn on a particular policy. There’s this way, there’s that way… you don’t know which is the best one… then you encounter a hypocritical politician. Are you inclined to snort and reach conclusions about all those people? Are you inclined to get defensive and start defending the guy even before you read a single attack? Well, now you know what your gut thinks.

As upset as I was about Trump’s victory, I can’t deny that somewhere in my gut I wanted him to win, if not the presidency, then at least the GOP nomination, and not in the way that some liberals wanted him to win the nomination in order to ensure a Democratic victory. In the voting booth, even though I voted for Clinton, part of me wanted to vote for Trump just to be contrarian. In Sangamon that vote wouldn’t have affected the outcome, but it’s still something I might have done.

Some of this defensiveness and “gut support” is a luxury. I’m not among the demographics most likely to be hurt by Trumpism if the worst (or even just the “moderately bad”) predictions about what it means come true. Some of it is probably also due to what my co-blogger Oscar recently described as the “-ism-lite,” which is the type of racism (and other ism’s) that are not quite as nefarious or bad as the more obvious or open kinds, but are still wrong and withal easy for its practitioners to overlook. As he puts, it instead of rejecting out of hand, “I have to parse it, process it, and then I recognize it and decide it’s not OK.”

I realize that in this post, other than noting that I do get defensive, I haven’t really explained the defensiveness or even the types of situations that elicit that defensiveness. I’m simply noting that it’s there and I’m not sure what to do with it.


Category: Statehouse

Sometime during the GOP primary races–probably after I wrote this— I started to sign on to the view that we need to stop “understanding” Trump supporters and focus on defeating them. I had forgotten two things.

First, while “defeating” (and winning over) the opposition are the principal goals in a political contest, it’s not always about “defeating.” It’s also about trying to live in the same world with others, being open to what they have to say, and when possible, convincing them to listen to what I have to say.

Second, understanding the opposition is always important. There’s the utilitarian reason. You’re more likely to win if you understand your opponent. But there’s also the intrinsic rightness of aspiring to empathy. People are people in their own right. I never said and never really believed that Trump supporters were the caricatures of racist reactionaries that others portrayed them as any more. But I probably acted that way.

Trump supporters have their own feelings and their own complex views of the things in their lives that affect them. They are humans just like me, though on average they probably got a lot fewer breaks in their lives than I have. I don’t mean that last point condescendingly, either, as in “they are so underprivileged that they must turn to somebody like Trump.” But it’s probably the case that I stood and stand to gain a lot than they from the type of policies that Clinton would have enacted or maintained. (It’s probably also the case that from a purely personal perspective, I stand to gain a lot from some policies Trump supports.) I also have resources to fall back on should I experience some reversals in fortune. So maybe I should withhold judgment when someone sees things differently. That’s what I ask of others before they judge me.

I do maintain some fundamental disagreements. Whatever their personal views, people who voted for Trump at the very least determined that his racist and sexist-bordering-on-pro-rape-apologetics statements weren’t deal breakers. For me, they would have been deal breakers even if Trump’s views aligned with my own on other matters. Some of my nieces, nephews, and in-laws are Latino or black. Those statements of Trump suggest either that they don’t have a place in our society or that their “proper” place is below white males. (That said and while I don’t know for sure, one of my Latina in-laws probably voted for Trump.)

I need to get out of my bubble more often. As the cliche goes, to understand someone is to forgive–or at least legitimate–them. “Understanding” can sometimes lead to apologetics or agreeing with that with which I should not agree. But it can also put things in perspective and force me to recognize others’ humanity.


Category: Statehouse

For me it’s Johnson vs. Clinton. I know Johnson isn’t going to win and I believe Clinton will probably win.

The advantage with voting for Johnson is that the more votes he gets, the more some of the issues I like will be highlighted, like decriminalizing drugs, ratcheting down police militarization, promoting civil liberties more robustly, and evincing skepticism about policies that might lead the US into another land war in Asia. It will also remind Clinton (assuming she wins anyway) that she needs to fight for our votes.

The disadvantages. Aspects of Johnson’s message I don’t agree with might be highlighted even more. I’m not too keen on decreasing the size of the federal government in the way that he’d probably do it. I don’t know of any explicit statement he’s given on Obamacare this election cycle, but I assume he’s hostile to it and is likely to want something much different from me.

More important, this election requires me to take a stand against Trump in a way that I haven’t really had to take a stand against a major party presidential candidate before. While in general Johnson may take away more votes from Trump than from Clinton, in my case a vote for Johnson takes away a vote I would have cast for Clinton. A vote for Clinton is a repudiation of Mr. Trump in a way that a vote for Johnson isn’t.


Category: Elsewhere

UPDATE: Please see my version of this post Over There. The short story is, I was wrong and I retract my argument.

My wife got a piece of mail yesterday addressed to “[her name] or current resident” and the return address said, “paid for by the Democratic Party of Sangamon.” The bottom of the envelope had a note that said “From the desk of [Joe Schmoe],” who is Sangamon’s secretary of state. Inside the envelope were a vote-by-mail application, a postage-paid envelope in which to send the application, and a form letter from the Sangamon secretary of state explaining the vote by mail process. At the end of the letter is a postscript:

P.S. No matter who you vote for, voting matters. It’s the backbone of our democracy. Fill out your Vote By Mail application and send it back TODAY! You can apply online or find your early voting site at [Sangamaon]Dems.com/Voting-in-[Sangamon]

While I have mixed feelings about vote by mail, it’s an option open to people in Sangamon and I offer no complaint about it here. And because, as I understand, the state’s secretary of state is charged with voter registration and running the vote by mail service, I find it entirely appropriate that his office sends letters and applications to citizens.

But it’s unseemly, in my opinion, to have this thing paid for by the Democratic party. It’s also unseemly that she was the only one to get the application. While my wife is registered to vote, I don’t know if she’s registered as a Democrat. (If I understand right, in Sangamon, you don’t have to declare an affiliation when you register, but you may if you wish.)

I’m not a registered Democrat. I’m also not particularly friendly to the local Democratic party. Several months ago, a precinct captain was in the neighborhood asking for my signature on a petition for someone to run for Democratic the ward committeeman. I politely explained that I was uncomfortable with the quasi-official “party committeeman” form of governance. Equally politely, he didn’t pursue the matter or harangue me.

It’s possible I was put on the list of “not likely to vote for our person and therefore shouldn’t waste campaign resources on him.” When it comes to things like voter canvassing or who to hit up for donations, that’s a perfectly acceptable way to designate people. But if, as may be the case here, it might determine who receives vote by mail applications “paid for by the Democratic Party of Sangamon.”

Or not. There may be other, mostly innocent or innocuous, things going on. Our landline is registered under my wife’s name, so it’s listed in the phone book under her name. So if that kind of record is gotten by the same pool of information as the phone book, then I can see why the default would be to send the application to her. I also understand that in Big City, the Democratic Party is the main organization and its quasi-official role in governing the city gives it certain responsibilities. So it’s not completely bad that it helps meet operating expenses for public services like vote by mail applications. And Sangamon’s budget is pretty strapped, although I seem to recall similar notices sent to my wife years ago when the budget troubles weren’t quite as bad.

And the envelope was addressed to her “or current resident.” Presumably, I or anyone residing at that address could comfortably open the envelope and get the benefit of access to the application.

But I have a problem with that. I usually won’t open a piece of mail addressed to someone “or current resident” if that someone is not me. I opened this particular piece of mail only because my wife gave me permission. Even if the envelope had been addressed to me, the label “paid for by the Democratic Party of Sangamon” might lead someone to believe it’s just a political flyer or request for a donation. In that case, I’d be disinclined to open such an envelope. Some of that is counterbalanced by the “from the desk of Joe Schmoe” note I mentioned above. And of course, I was curious enough to open the envelope, so I wasn’t deceived.

But if a state service “from the desk of” the state’s secretary of state is being sent out “paid for by the Democratic Party of Sangamon,” that implies something like an official advertisement the party bought from the state, suggesting that for the benefit of paying for this outreach, it receives quasi-official status as the main game in town. This isn’t the most horrible thing ever, but it’s not entirely benign either.


Category: Statehouse

Some terms have a technical meaning and a common meaning, and the common meaning has a “normative slant.” The technicians know how to use the terms in the technical sense. But sometimes the common meaning slips in, in such a way that using the term ends up making two arguments with one word.

If one isn’t careful, using such terms can lead  to confusion. Who’s to blame is not always clear. It could be the technician who uses the term or it could be interlocutor who misinterprets or misidentifies the technical meaning.

I have a list of three terms here, in ascending order of how knowledgeable I am about the technical definitions.

THE TERMS.

Marginal.

Title(s) of technicians. Economist; political scientist.

Technical meaning. The extra amount one is willing to spend to get the next widget. Or, somewhat less technically but still bound up with what technicians mean: the amount of change a given policy will bring about in a given direction.

Common meaning. An amount that is unimportant or trivial.

Normative slant to the common meaning. Mostly neutral, but it can swing either way depending on whether “amount” in question is good or bad.

Possibilities for confusion. When people speak of changes “on the margins” or assert that such and such policy will bring about “marginal” changes, they may have in mind the technical meaning. But sometimes they let slip in or leave unaddressed the common meaning. If it’s a somewhat harmful, but in his/her opinion necessary thing technician is advocating, he/she leave themselves open to the charge that he/she is minimizing the harm.

Sometimes, too: The size of the margin–not whether a marginal change will be brought about–is really what is under dispute. Simply pointing out that change (for the better or worse) will occur along some margin does not 1) demonstrate how much the change will be and 2) whether the change is worth it.

Exploitation (Marxist version).

Title(s) of technician(s). Marxist theorist; activist.

Technical meaning. Expropriating the surplus value of a worker to pay the profits of the person to whom the worker sells his or her labor. (Other technicians may have other meaning, but I’m focusing on the Marxist version.)

Common meaning. Somehow compelling someone to do something that they don’t want to do and that harms them.

Normative slant to the common meaning. Bad.

Possibilities for confusion. One sometime activist I knew who was steeped in Marxist theory often used the word “exploitation” to great emotional effect when describing the treatment of workers and the need for a revolution. And yet if you bring up examples of workers being treated well or workers as a whole benefiting from the prevailing economic system, then that same Marxist will fall back on the more technical meaning of “exploitation” and explain what they really meant was that the workers’ surplus value, etc., etc.

Historical.

Title(s) of technician(s). Historian.

Technical meaning. Representing the phenomenon of change over time. I believe it can represent persistence over time as well. The key point is that change happens (or doesn’t) but it can be explained by people’s decisions or by contingent, unforeseen happenings. This is probably a modern conceit. Historians in earlier times sometimes appealed notions of “forces of history” or “cycles of history” or “spirits of history” (e.g., Zeitgeist, Volksgeist, Ortgeist). I’m not saying my definition is true for all times and places and people, just that it’s the prevailing definition among those who were trained professionally in history and abide by professional history’s norms.

Common meaning. True and factual story of what happened.

Normative slant to the common meaning. Good.

Possibilities for confusion.There are at least two ways we sometimes commingle the technical and common meanings. One is simply using the common meaning when it suits us and then relying on our status (such as it is) of “historian” to claim that it’s truth.

The second is to speak as if merely demonstrating that a given belief or position or attitude is “ahistorical” we have therefore invalidated it. This is wrong, or at least “confusing,” because it assumes that historicality is the only measure by which to judge things. It judges people by the standards of professional historians even if those people did not claim to be abiding by those standards in the first place.

CONCLUSION.

Apologies.

There’s a lot I don’t know about the above terms. I’m least confident with “marginal.” Not being an economist or trained in economics, I suspect I’ve got it wrong on some level. So please correct me.

I feel a little bit more confident about “exploitation” and Marxism. But to be clear I’ve never read Marx to any significant degree, and most of what I “know” comes from reading Marxist-inspired historians and talking with people like my sometime activist acquaintance. And perhaps the “confusion” I talk about is just an anecdatum from my activist acquaintance.

Even with “historical” I might be off despite my training. In my anecdotal observation and experience, historians aren’t usually trained in grad school to examine the assumptions of history. Instead, grad school socializes them into the norms of the profession, and among those norms are the assumptions I mention above. My experience is no exception: I’ve given these assumptions some thought, but haven’t really investigated them systematically.

Envoi.

My takeaway, though, stands. We should beware how we use technical terms. It’s not only that there’s room for confusion, there’s also room for deception or at least lazy argumentation. And while the blame can’t always rest with the technicians, it sometimes can.


Category: Market, Statehouse

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Queenland

Greetings from Stonebridge a fictitious city in a fictitious state located in a tri-state area in the interior Mid-Atlantic region. We're in western Queenland, which is really a state unto itself, and not to be confused with Queensland in Australia.

Nothing written on this site should be taken as strictly true, though if the author were making it all up rest assured the main character and his life would be a lot less unremarkable.


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