New York is looking at forcing Tide (and other such companies) to stop making their product look like candy:

Teenagers and some young adults have started an Internet trend called the “Tide Pod challenge,” in which they post videos online of themselves with Tide Pods in their mouth. Although the source of the problem is clearly the fact that reckless stupidity can get you internet fame, New York State Sen. Brad Hoylman and Assemblywoman Aravella Simotas — both New York City Democrats — believe that the problem is that people somehow do not understand the danger associated with swallowing commercial cleaning products, or perhaps that Tide Pods actually look appetizing to some people because of their colorful design.

According to the American Association of Poison Control Centers, there have been over 80 cases of intentional misuse of Tide Pods reported so far in 2018, up from only 53 cases in all of 2017.

I thought the consumer rights people were exaggerating, but then I saw one and was gobsmacked. Yes, they really do look like candy. On the other hand, they don’t feel like candy once you pick them up. Tide has apparently made some movement towards fixing this by changing the colors up. I saw some the other day and instead of a white base they were green. Except for sour apple, there isn’t a whole lot of green candy out there. It did not look appetizing. So it seems like the problem self-corrected. For what really isn’t a huge problem, given the lack of actual incidents.

That said, I am not especially bothered by this government interference. The laundry pods we were using – which were not Tide – were black. So I know it’s possible, and it’s a pretty small revision for them to make.

I should note that the vaping community was on to this scourge well before the media. Back when there was concern about kids drinking ejuice, a lot of vaping advocates looked up the CDC statistics and found everyday things that were proving to be more of a problem. And so laundry pods would get mentioned:

Gregory Conley, president of the American Vaping Association, a nonprofit group dedicated to education about e-cigarettes and vapor products, said the concern about e-cigarettes is overblown.

The child who died, he said, consumed a homemade nicotine liquid concoction that’s much stronger than retail versions that are easily available in the United States. And, he added, laundry detergent pods and prescription medications are bigger poisoning risks to kids.

Which is my main concern about cracking down on laundry pod manufacturers: The fact that we regulate them will be later used to justify regulating other things where (unlike here) the proposed regulation is a burden. The regulation for ejuice packaging turned out okay, for whatever that’s worth. Basically, suppliers sidestepped them by shipping them in the child-proof containers but including an alternative top you could replace it with. And I suppose if they did start actually putting ejuice out in attractive colors I would be a little concerned.

Ben Joravsky at the Chicago Reader (a weekly “alternative” newspaper in Chicago) has written an article purporting to show how Illinois Governor Bruce Rauner is trying to cripple the Democratic Party.[1] The gist of Joravsky’s argument is this. Rauner is using his pro-choice policies to gain neutralize opposition from liberals and gain support from those Illinois Republicans who lean pro-choice. At the same time, however, he has done a lot of work to destroy public employee unions in Illinois. Exhibit A for that is his role in initiating the pending US Supreme Court case, Janus v. AFSCME, which could (and probably will) end compulsory fair share dues for public sector employee unions.

In sum, Joravsky is saying Rauner is using abortion to distract people from union policy. here’s the clincher:

As for Rauner’s friends at Planned Parenthood—well, with a drop in membership, unions will be less able to help elect Democrats. So really the assault on unions is an attempt to cripple the Democratic Party. You don’t think the Koch brothers actually give a hoot about workers like Mark Janus, do you?

If Democrats can’t beat Republicans, they can’t enact liberal-minded measures, like—oh, just to pick one—reproductive rights.

Think about this, Planned Parenthood. Your good friend, Bruce, is throwing you under the bus once again. Only this time he’s got a more roundabout way of doing it.

There’s an irony here that Joravsky doesn’t acknowledge. He seems to play right into the notion that unions are adjuncts to the Democratic Party. That notion is grist for the plaintiff in Janus v. AFSCME. Janus, in Joravsky’s own words,

is a state employee who argues that his First Amendment rights are being violated because state law requires him to contribute a “fair share” portion of his paycheck to the union that represents him—in this case, the American Federation of State, County and Municipal Employees. In particular, he doesn’t think he should have to donate money to a union with which he disagrees politically.

Supporters of compulsory fair share for public-sector unions often say, quite correctly, that unions are forbidden to use compelled dues for political campaigning and that compelled dues are to be used only for implementing and negotiating union contracts. Opponents of fair share claim that the process of negotiating contracts is inherently political when the employer is the state.

But Joravsky has just reaffirmed another reason to view unions as political. Joravsky bases his argument about Rauner “crippling” the Democrats on premises that lend support for Janus’s views. According to Joravsky, unions prefer and advocate for a political party with which many union members do not affiliate, and they do so in the service to a political position with which many union members might disagree.

[1] Ben Joravsky. “How Bruce Rauner is trying to cripple the Democratic Party.” Chicago Reader. October 17, 2017. <https://www.chicagoreader.com/chicago/how-bruce-rauner-is-trying-to-cripple-the-democratic-party/Content?oid=32566550>. Accessed October 20, 2017.

Walking back

It’s presumptuous to criticize members of a profession for acting “unprofessionally,” especially true when I have not acquainted myself with the specific norms of that profession. I did that when I said recently that some mental health professionals “are acting unprofessionally and to a certain extent dangerously in their public diagnoses” of Mr. Trump. Part of what I meant was that mental health professionals ought not to comment publicly on a public official’s mental health.

I no longer believe that. Dr. X–both in his comments here at Hit Coffee [for example] and in some posts at his own blog [here and here]–has convinced me that it’s sometimes appropriate for mental health professionals to make such public commentary and that whether or not it’s “professional” is more arguable than I allowed.

Cautions are still in order

I still urge caution when it comes to public diagnoses, but before I proceed, I’ll note a few terms I am probably using wrong, or at least too globally. “Mental health”  and “diagnoses” here in this post are catchalls and may not necessarily encompass what public commentary on public officials is really about. “Mental health professional” is a broad term, too. It can include MD’s, PsyD’s, PHD’s, LCSW’s, and probably others–the key point is that I’m referring to people who are licensed or otherwise credentialed to counsel others or to people who study mental health academically. While my use of these terms is sloppy, I ask your indulgence.

Now, on to the cautions…

Caution #1: “can’t” is a sliding scale

It’s important not to confuse the general sense and professional norm that such commentary is “improper” with a strict prohibition against such public commentary. I understand the Goldwater rule is somehow encoded into the American Psychology Association’s code of ethics. I suspect, however, a mental health professional who offers public diagnoses does not usually risk being hauled before an ethics board or otherwise sanctioned in the same way he or she might by, say, inappropriately breaking confidentiality.

Anti-caution: We should presume that professionals take the established norms of their profession seriously. Even if they disagree with the norms and seek to revise or ask others to reconsider them, we should presume the professionals feel in some way answerable to those norms or at least believe the norms something that merit discussion and are not to be  lightly disregarded. Even without a strong enforcement mechanism, these injunctions still act in some ways as a prohibition.

Caution #2: There is never enough information

I submit that any public diagnosis has to be upfront about what is not known and ought to be open to the concern that the diagnosis might be too hasty. In the meta-sense we just cannot see into other people’s minds. In the non-meta-sense, there’s always something we don’t know about others’ history or actions or influences.

Anti-caution: Thus is it always and everywhere. No matter how much is known there are always unknowns. And yet, we have to come to conclusions and mental health professionals are no different.

I am informed that in at least some cases, the mental health professional can diagnose an individual in a matter of minutes. I am also informed that in other cases, mental health professionals may be called upon to create psychological profiles of others whom they have never met (say, psychological profiles of employees or profiles of foreign leaders for state intelligence). And regardless of these examples, some persons’ actions do demonstrate what they are likely to do in the future, and if a mental health professional can yield discipline-specific insights into those actions that a layperson cannot offer, then that’s probably okay.

Caution #3: my corollary to the McArdle rule

Megan McArdle often says that just because there’s a problem doesn’t necessarily mean there’s a solution to the problem. My corollary is that just because a public diagnosis is correct doesn’t mean it tells us what to do with the person so diagnosed. (I’ll add here that a good model is Dr. X. He may offer opinions grounded in his area of expertise, but when he discusses policy solutions he takes care to distinguish what his expertise can and cannot tell us.)

Anti-caution: My corollary doesn’t mean such public diagnoses are worthless. A diagnosis might very well and very rightly warn us, for example, against false assurances that someone will “pivot.”

Caution #4: there will be blowback and it will be unfair

In one of my posts, I referred briefly to objections that Rabbi Michael Lerner of Tikkun magazine has about public diagnoses. I don’t agree with everything he says there, and I agree with less of it now that I’ve heard Dr. X’s counterpoints. Still, the following objection from Mr. Lerner rings true to me:

I believe that making these kind of diagnoses without the benefit of having a carefully constructed private relationship with the public political  personality being analyzed leads many of the tens of millions of supporters of the political character who has been labeled in this way to believe that implicitly they too are being judged and dissed. This plays into a central problem facing us in the liberal and progressive world….When we use the kind of psychiatric labeling suggested by those who insist that Trump is a clinical narcissist, that is heard by many who support him as just a continuation of the way the liberal and progressive forces continually dismiss everyone who is not already on our side as being racist, sexist, homophobic, xenophobic, Islamophobic, anti- Semitic, or stupid.  This makes many of these people feel terrible, intensifies their self-blaming, but then often generates huge amounts of anger at those who have made those judgments without ever actually knowing the lives and details of the people that are thus being dissed. And this contributes to the ability of right-wing demagogues like Trump (not a psychiatric term, but a political judgment) to win support by telling a deep truth to  many Americans: “many on the Left know nothing about your lives, but they have contempt for you, think that if you are white or if you are a male you are specially privileged and should spend your energies learning how to renounce your privilege.”….

First, I should say my quotation is deceptive. The ellipses elide quite a bit. If you go back to read Lerner’s comment in full (I’m quoting from his point no. 4, but I recommend reading all his points), you’ll see his argument is not merely pragmatic, but enmeshed in a broader, ideological critique of the faults he finds with capitalism and meritocracy. I don’t necessarily share that broader critique and if I hadn’t elided those points, the quote would have been not only longer, but would have seemed more contestable as well.

Second, what Lerner seems to me to be saying (in part) is that however accurate a public diagnosis, it might elicit a stronger reaction and in the process do little good. His point is at least partially about prudence. We live in the world, and the world is going to react. It’s not fair, but that’s what will happen.

Anti-caution: We out not overlearn that lesson and make an idol of prudence. If someone speaks the truth, that is a value unto itself. The truth is an end. If that truth is commanded or informed by one’s professional memberships and professional training, then sometimes (maybe always?) it must be uttered and pursued, regardless of prudential considerations. And as Mike Schilling Over There has reminded me, the principal bearers of blame are those who don’t acknowledge the truth and those who create or pursue or gainsay the lies.

If you’re right, you’re right

I’ll probably never be comfortable with public diagnoses. But that said–and in contrast to a point I made very recently–those public diagnoses of Mr. Trump that I’ve seen seem to be correct. Even if they’re not correct, they’re correct enough. Mr. Trump’s actions have shown him to be a dangerous, petty man. So I’ll end where I began above. I retract my blanket statement that mental health professionals ought never issue public diagnoses of public figures.

I better be quick about writing this because the underlying facts probably have a short shelf life. I learn that Mr. Trump now is expressing support for NATO [hat tip Noah Milman], seems to be taking a seemingly less extremist stance stance regarding China, and seems to be distancing himself from his alt-right advisor, Steve Bannon [paywall probably applies]. Are these indications of a sometimes-discussed “pivot” toward more responsible governance?

Maybe….but we have to decide what kind of pivot we’re talking about.

Then there’s the personal pivot. This is personal change resulting from an honest self-assessment.  It can come quickly, as in a road to Damascus conversion experience. Or it can come gradually, and observable only long after the pivoting began. I don’t see any fish scales falling from Mr. Trump’s eyes, and if he is on the painful, gradual road to a personal reevaluation, we won’t know for at least a few years.

There’s the institutional pivot. This doesn’t preclude a personal change, but it relies on the sets of incentives and constraints that work on the presidency. As I have tried to argue before,

But the argument that Mr. Trump will grow into the presidency doesn’t rely only on the proposition that he’ll become a better person. It also relies on the claim that our system of checks and balances might actually work and that the federal bureaucracy will do what bureaucracies do and somehow condition what Mr. Trump can accomplish.

I’d add other factors to “checks and balances’ and “federal bureaucracy”: federalism, civil society, the press, individual acts of resistance. In this second sense, it’s possible we’re about to see a pivot.

However and as with the first sense, we probably won’t really know it’s a true pivot for several years. One reason among many I distrust Mr. Trump is that he seems to change his mind on a whim. Pivoting hither and yon from one day to the next isn’t the type of pivot I’m hoping for.

We also need to keep perspective. I think it’s a good thing that Mr. Trump seems to be (this week) distancing himself from Mr. Bannon. But he shouldn’t have hired him in the first place. He should have laughed away the suggestion when it was made. And “distancing himself from” isn’t the same as firing.

There’s finally the disturbing point that we are–or at least I am–looking for any sign of change and clinging to it, hoping it’s change for real or at least contenting ourselves that it’s not quite as bad at he moment as it seemed and may again seem at other times. Maybe the king won’t show up to parliament in his underwear. Maybe the emperor will put on some clothes for once. I suppose it’s kind of like dreading the moment an abuser comes home only to be relieved that tonight he’s in a good mood.

Dr. X, a friend of Hitcoffee, has warned against what some mental health professionals call the Dark Triad. This triad is, to quote Dr. X, a “personality organization that comprises three psychological traits: psychopathy, narcissism and Machiavellianism.” People with that personality organization are dangerous. They are a problem that needs to be dealt with, especially if they are a coworker or in a position of responsibility.

What do we do with such people? In the comment thread to that post, Dr. X suggests that we fire them. To me, the obligation to fire implies that we shouldn’t hire in the first place. If the dark triadic person is not independently wealthy and yet can’t or shouldn’t be hired, how should he or she fend for themselves? Perhaps once properly identified–either through that person’s actions or through some sort of deep analysis–then we ought to consider civil commitment, or prison if justified. Or you can do the Philip K. Dick option: hunt down the androids and eliminate them. I reject that “solution” as does Dr. X and most (all?) others I”ve heard speak on it. But the terms of the discussion are consistent with certain conclusions.

Absent in the discussion on that thread and in the material Dr. X cites (or at least in the quoted portions of that material…I didn’t read the linked-to articles), is a discussion of whether this personality organization is just how or what someone is, or if it has a (personal) history. If people develop into that organization or develop out of it. Not to call this an illness–it’s not clear to me that the language of “personality organization” is a language about illness–but…is there a cure? Or are people just like that?

I’m obviously uncomfortable with the idea. Maybe it’s naivete or wishful thinking. If such people exist, then they exist whether I like it or not. If almost by definition such people don’t seek to change or improve or grow, then they don’t. Sometimes survival and defense of the common good are important. My wish that such people who would imperil either don’t exist doesn’t mean that they don’t.

These discussions remind me of the “mark of Cain” from Genesis. I thought it would be cool to incorporate an allusion to that story when talking about such people. But then I actually read the story, probably for the first time since I was a child. The story starts out as I remember. Cain kills Abel out of jealousy or envy or whatever. The Lord punishes him: “When you till the ground, it shall no longer yield its strength to you. A fugitive and a vagabond you shall be on the earth”

But it doesn’t end there. Cain complains that it “will happen that anyone who finds me will kill me.” To that the Lord commands that “whoever kills Cain, vengeance shall be taken on him sevenfold.” And he sets a “mark” on Cain to warn people not to harm him.

I’m no expert in Biblical interpretations, and I imagine that that passage has been interpreted and reinterpreted through the ages. There’s also a point of unclarity. The referent “him” on whom vengeance is to be meted sevenfold strikes me as amphibolous, at least in the version I’m quoting: I assume the vengeance is to be meted against the one who would harm Cain, but perhaps Cain is the recipient of the vengeance?

Still, the “mark” of Cain seems on my uninformed reading to be the opposite of what I had thought. It strikes me as a mark of mercy, or perhaps mercy tempered by a warning. People are not expressly forbidden to be wary of him or to stop him from further crimes, but they are forbidden to harm him.

Again, there may be other ways to interpret that story, and one might legitimately question whether that story ought to be a guide to anything. But that story exists and I can’t shake it, just like I can’t shake the possibility that dark triadic persons exist.

Rabbi Michael Lerner warns against psychoanalyzing/diagnosing Mr. Trump (or any political leader, for that matter), especially when such psychoanalysis is intended as a tool for opposition. He points out that it’s questionable to diagnose people without working with them for a long time in a therapeutic setting. Rather, he says, one should focus on actions instead of on the internal demons of one’s opponent. (Mr. Lerner lists other reasons as well. Read the whole thing.)

I’m inclined to agree. I get very uneasy when I read of a psychotherapist or other mental health professional diagnose a politician with a disorder.

Occam’s Razor can do some good here. If Mr. Trump is unstable, erratic, or unpredictable, his actions by themselves speak to how much we can trust him or how competent he is. Whether the diagnosis is right or wrong, we don’t need it.

Or mostly we don’t. Mr. Lerner’s warning is an “editorial note” to another piece, “Trump as Narcissist,” by Michael Brenner, also found at the above link.* Brenner makes several arguments that stand or fall on their own. But his key point is that Mr. Trump is a narcissist and we cannot expect the demands and incentives of the presidency to tame his narcissism.

That argument is marginally informed by whether Mr. Trump really and truly suffers from narcissism. If he does, there’s less hope that he’ll mature and grow into the presidency. If he doesn’t, there’s slightly more hope. And if a 25th amendment solution is at all in the offing, then maybe psychological unfitness is a way to invoke that process. (At the same time, I’m not sure we really want to invoke that process, and I am especially wary of admitting to that end testimony from mental health professionals who have not even met with Mr. Trump personally.) So…maybe diagnoses of the sort Mr. Brenner offers do some good after all.

But the argument that Mr. Trump will grow into the presidency doesn’t rely only on the proposition that he’ll become a better person. It also relies on the claim that our system of checks and balances might actually work and that the federal bureaucracy will do what bureaucracies do and somehow condition what Mr. Trump can accomplish. We may of course doubt whether any of this will happen or if it does, whether we’ll welcome what the country would look like afterward. (For example, I’m glad that Michael Flynn has quit the National Security Agency, but I also share Noah Millman’s concerns about the intelligence leaks that seem to have prompted his ouster.)

And for the record, I don’t believe there’s something epistemologically magical about the “months, or sometimes years” of working with a client that Mr. Lerner says is necessary to determine if a person suffers from a disorder. I acknowledge that the the diagnoser probably has to always base his or her decision on incomplete information. So maybe it’s not entirely fair for me to claim the public diagnoses lack sufficient information.

That acknowledgement, however, doesn’t change my mind that such health professionals are acting unprofessionally and to a certain extent dangerously in their public diagnoses. They’re contributing to a discourse in which mental illness is seen as something shameful or to be feared. To my mind they’re weaponizing techniques that originally were meant to help or at least understand people.

Such is not their intention, and it’s not everything that they’re doing. Some mental disorders and perhaps even “personality organizations” ought to disqualify a person from certain positions of responsibility, among them the presidency. When an apt case presents itself, then maybe these mental health professionals are doing a service in highlighting it. And as even Mr. Lerner notes, there is something to be said for noting certain “styles” of politics and cultural expression. He cites Christopher Lasch’s study of the American “culture of narcissism, and I could cite Richard Hofstadter’s essay on the “paranoid style” of American politics.

Maybe there’s no “pure” approach. Maybe some harm has to be done for a greater good. I will probably not convince these mental health professionals otherwise. But I urge them to at least acknowledge and more forthrightly address the dangers of what they’re doing.

*If you read Tikkun Olam a lot, you’ll find that Mr. Lerner often attaches editorial comments to essays he publishes but disagrees with.

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]

[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]

[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.

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.