On the Saturday before Election Day last November, Jason Lary, a former insurance executive, crouched on a rough patch of grass at the center of a busy intersection 20 miles outside of Atlanta in DeKalb County. Lary was holding a hammer, and he tapped carefully on the thin wire base of a campaign sign. “My hand is like Fred Flintstone’s right now because I banged my hand in the night,” he said, noting his latest sign-related injury. This hazard, though, was worthwhile: “If you don’t start [the sign] with your hand, it will bend. It takes longer—guys are 10 times faster than I am. But my sign’s still gonna be up.”
This was a non-trivial advantage for Lary, who for the past month had begun most mornings with a kind of ground-game whack-a-mole. He would put up signs under the cover of night, only to have his opponents dislodge them by hand or, when that failed, run over them with their cars. Nevertheless, Lary was feeling good. “My opposition? Worn down,” he told me. “They don’t even have any more signs. And I kept a stash, knowing this time was coming. This is not my first picnic with nonsense.”
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Lary’s opponents were from his own community, folks who were fiercely against turning their stretch of the county into a new city called Stonecrest, Georgia. Lary, the president of the Stonecrest City Alliance, had been working for four years to turn a 50,000-person swath of unincorporated DeKalb County into its own city. If the referendum passed the following week, it would become the latest and most symbolic victory for the “cityhood movement,” a local-government arms race that, for the past decade, has been reshaping the political, economic, and racial landscape of metro Atlanta.
Between 2005 and 2015, eight unincorporated neighborhoods in Georgia’s three largest counties—Fulton, Gwinnett, and DeKalb—voted to form their own cities. In doing so, they rejected the county’s political leadership and withdrew much of their resources from the county’s tax pool. Prior to incorporation, all of these areas were putting more money into the county via taxes than they got back in services. Pulling their money out of the county pool has thus been a boon for these new cities, which can reprioritize and increase services to meet the needs of their more homogeneous constituencies without raising taxes.
For those left behind in unincorporated parts of these counties, however, the cityhood movement has been disastrous. Data on the overall economic impact of the movement doesn’t yet exist, but the withdrawals of wealthy enclaves have left county governments with a recurring and unpleasant choice: raise taxes or provide less. In 2012, Fulton County’s manager calculated that the cityhood movement had cost the county $38 million per year.
These losses have exacerbated racial inequality in an area that was found, in a landmark 2013 study, to be one of the nation’s worst for economic upward mobility. All of these new cities, The Atlanta Journal-Constitution wrote in 2015, “have become mostly white islands of safety and affluence. What’s remaining is heavily black [and] less well-off.”
But Lary, his supporters, and his opponents—the folks ripping up his campaign signs—are not the white people at the center of the cityhood movement. Rather, they are a black community: If Lary were to succeed, Stonecrest would become the 15th-largest city in Georgia and the first majority-black city created by its own residents since Reconstruction. Many of Lary’s neighbors and friends couldn’t believe that he was aligning the area with cityhood and employing the strategies of the very people whose political tactics had weakened local black communities for more than a decade. Worse, not only had Lary aligned with the cityhood movement; he had enlisted its most famous advocate.
And so, with a swollen hand, the help of a world-renowned government-efficiency expert, and only a few days left before the vote, Lary was scrambling to convince these folks that he really did have their best interests at heart.
Lary’s predicament is deeply rooted in the spatial and racial politics of metro Atlanta in the post-civil-rights era—and in the story of Sandy Springs, Georgia.
In 1950, Atlanta Mayor William Hartsfield had annexed the white suburb of Buckhead in order to preserve a two-to-one white voting majority in the city and to expand the city’s tax base—all part of Atlanta’s “Plan of Improvement.” It worked: Atlanta became a thriving and diverse Southern metropolis. By 1961, Hartsfield was bragging about the city’s combination of racial progressivism and booming business, dubbing Atlanta the “City Too Busy to Hate.” There was, to be sure, a great deal of hyperbole and cynicism in this declaration, but there was also a sliver of truth: Hartsfield had indeed established a political coalition of racially moderate Democrats, white business leaders, and black voters that outpaced much of the South in its relative racial harmony.
This coalition, however, also birthed a vehement opposition movement of working- and middle-class whites who wanted no part of Atlanta’s expansion. So, in 1965, when Hartsfield, by then out of office, attempted to replicate the success of the Buckhead annexation, things did not go as smoothly. Hartsfield wanted Atlanta to annex Sandy Springs, a majority-white, wealthy neighborhood just outside the city limits in Fulton County. He was met with outrage and obstruction. Two spokesmen for Sandy Springs promised to “build up a city separate from Atlanta and your Negroes and forbid any Negroes to buy, or own, or live within our limits.” Atlanta’s annexation plans had “forced this on us,” they wrote, “and we will fight to the finish.”
Facing a Sandy Springs community fervently opposed to joining Atlanta, the city backed off. (In Georgia, the decision to annex comes down to the wishes of the annex-ees, not the annex-ers.)
In his 2005 book White Flight, the Princeton historian Kevin Kruse tells the story of this white counter-coalition and the effects of their resistance on conservative politics not just in metro Atlanta, but nationwide. White flight, Kruse writes, “was a political revolution,” one that saw white Southern conservatives “abandon their traditional, populist, and often starkly racist demagoguery and instead craft a new conservatism predicated on a language of rights, freedoms, and individualism.” Resistance to the integration of public schools, for instance, transformed during this era from an objection to multiracial classrooms to a crusade against “forced busing”; segregated neighborhoods were similarly defended in the name of preserving Americans’ “freedom of association.”
Throughout the 1970s, ’80s, and ’90s, metro Atlanta’s whites employed this new, ostensibly colorblind language to resist integration and preserve their race-based advantages. In some cases, though, it was easy to read between the lines: In 1975, for example, one Cobb County leader quipped that suburban whites in his area thought of the Chattahoochee River as a “moat” that protected them from Atlanta. “They wish they could build forts across there to keep people from coming up here,” he said.
In Fulton County, which is bisected by Atlanta, this battle was most often fought over two overlapping issues: taxes and annexation. By the 1980s, the residents of Sandy Springs had long felt that their county taxes were being unfairly redistributed to nonwhite communities in other parts of the county, with whom they shared little common ground. Then, in 1987, black candidates secured a majority of the seven-member Fulton County Commission. Four years later, Fulton County raised taxes. This move was, in part, demanded by the state of Georgia, whose revenue commissioner had ruled that Fulton’s wealthy, white areas were being taxed below statewide minimum rates. That wasn’t, however, how the wealthy, white areas viewed it.
Many in Sandy Springs characterized the new taxes as racially motivated—against whites. Two Sandy Springs residents, lawyers Mitch Skandalakis and Robert Proctor, sued the county to block the new tax codes and supported groups like RIOT (Rollback Increase of Taxes) and STOP (Stop Taxing Our Property). Skandalakis and Proctor ultimately failed to derail the new taxes, but in 1993, the grassroots energy of these groups reshaped the county government: When the black chairman of Fulton’s Board of Commissioners left office to run for mayor of Atlanta, Skandalakis replaced him—defeating Martin Luther King III for the vacated seat.
As a white Republican, Skandalakis was a minority on the commission, but he was a loud and controversial voice. Less than a year into office, Skandalakis was sued for libel after funding racist campaign materials against a black candidate. A few years after that, Skandalakis ran for lieutenant governor and was again sued for libel, again for campaign ads with racist overtones. (Both matters were settled.) Meanwhile, Skandalakis and Proctor—who has been described as “Atlanta’s Rush Limbaugh with a legal license”—were elevated to folk-hero status. (Years later, Skandalakis was investigated yet again and sent to prison in 2013 for lying to an FBI agent.)
In 2004, Republicans took complete control of the Georgia state government for the first time since Reconstruction and opened the door for the creation of new cities—something the state’s Democrats had blocked for decades. Sandy Springs could finally realize its dream of “build[ing] up a city separate from Atlanta,” and it incorporated the following year, precipitating a wave of white neighborhoods throughout metro Atlanta eager to follow suit and insulate themselves from their counties via incorporation.
The cityhood movement was a major milestone for the politics of “suburban secession,” according to Kruse. These communities wanted “to get away from metropolitan Atlanta, both in terms of their identity, but largely in terms of having political, economic, or legal obligations to the city of Atlanta, its people, and what were regarded as its problems,” Kruse told me. “They wanted to be separate. And once that benchmark was laid down, that model was something that other suburban communities could easily look to.”
It wasn’t a moat, but the town of Sandy Springs in Fulton County had raised the bar—insulating themselves with a new, protective layer of government.
Many people, however, completely reject any version of this history that connects the cityhood movement to the racism of decades past. They see the movement not as the embodiment of white flight, but instead as the wise reassertion of local control in the face of a wasteful and corrupt county government. But, when the county government is black and the people incorporating are white, many see racial resentment as a driving force.
“We’re largely talking about black faces in places of public power and influence,” said Michael Leo Owens, a political-science professor at Emory University and a DeKalb County resident. “So when whites decide to create new cities, and the language they use is a language of serious critique against the county government, … it has to raise, in some people’s minds, the question of whether or not it is legitimate, what people are seeking, and the grounds upon which they’re seeking it.”
On the other hand, Owens noted, “There are other reasons why people would want to have greater control over their communities. … People are dissatisfied with the county as not being a good provider of public services or a good steward of public finances.”
Jason Lary counts himself firmly among the dissatisfied. As I accompanied Lary on his campaign stops, he told the story of his DeKalb County neighborhood, an area that, while middle-class, had been hit hard by the recession and hadn’t recovered. “You see these houses out here?” he asked me as we drove around the Stonecrest footprint, checking on his signs. “In north DeKalb, these would be $300,000, $400,000 houses. Here? $150,000, $165,000. They were built new at $400,000, and when [the market] crashed, they never came back. And this is the heart of Stonecrest—your average homeowner.”
The area has a large upscale shopping mall, includes the Arabia Mountain National Heritage Area, and sits just a few exits from downtown Atlanta, and yet Stonecrest hasn’t drawn much interest from businesses or developers. “I’ve tested this before,” Lary said. “As an insurance executive, I call on nothing but CEOs and vice presidents. And I will talk about having a location in DeKalb County—they just snicker and laugh … They won’t even stop on our exit to take a look at us, because of the DeKalb County government.”
DeKalb County’s reputation, in this regard, is well-earned. In 2013, a grand jury released the results of a yearlong investigation, which found wide-ranging corruption that spanned nearly a decade and covered two separate administrations. Vernon Jones, who in 2000 became DeKalb’s first black CEO, helped expand the powers of the county’s top position—he also presided over an administration that, according to the grand jury, routinely rigged bids on government contracts, steered contracts to vendors with ties to government officials, and allowed some of those contractors to drastically overcharge the county for municipal services. DeKalb once gave a $2.2 million per year tree-trimming contract to a fake company created by a Cartoon Network illustrator. The man had zero tree-trimming experience and did not own a chainsaw.
Burrell Ellis, Jones’s predecessor, was sentenced to 18 months in prison in July 2015 after being convicted of extortion, having threatened to terminate government contracts with companies that didn’t contribute to his campaign fund. (Ellis was also convicted of perjury, but in March 2016 was released from prison early, and in November 2016 the Georgia Supreme court overturned his conviction. A month later, he was reinstated as CEO.) In total, roughly 40 DeKalb County elected officials, political appointees, teachers, police officers, and other county employees have been convicted of various corruption-related violations in recent years.
County corruption is emblematic of the central complication within the cityhood debate. Politics in DeKalb and Fulton—the Georgia counties home to all but one of the movement’s newly created cities—are areas with robust black political leadership and, as Kruse and others have shown, a history of whites who object to black leadership on purely racial grounds. But after years of corruption, when whites in these counties criticize their leaders, it can be hard to tell whether they’re invoking deep-seated racial hatred or simply asking for better government—or both.
In the 1960s, the residents of Sandy Springs were clear about why they wanted to become a separate city: Atlanta had “forced Negroes” on them. These days, a corrupt county government makes the cityhood trend more understandable, but it may also give cover to those seeking segregation. In this way, the cityhood movement has become a kind of polarizing racial Rorschach test. Some see engaged citizens fighting distinct political battles with corrupt county governments; others see whites across metro Atlanta hell-bent on finishing the racial isolationism that previous generations started.
I have been investing in this town for 25, 30 years,” Lary told me. “We thought that the county would have done better for us, and it didn’t happen.” But then he noticed “cities starting to form on their own.” When Lary caught wind of these incorporation campaigns, he saw the cityhood movement’s potential to transform his own community. When a neighborhood called La Vista Hills tried to become a city, Lary started dropping in on their meetings: “Not only am I the only black guy there—I’m the only black guy there in a suit!” But Lary quickly befriended the La Vista Hills leadership, “and from there,” he said, “I watched and learned.”
The campaign to create Stonecrest was thus ironic from the start: The incorporation of white, wealthy enclaves in metro Atlanta had left already maligned, black-led county governments with a depleted tax base and less power with which to serve the largely black neighborhoods that remained under their control. By adding Stonecrest to the cityhood movement, Lary was attempting to use the very political tactics that weakened his community in order to save it.
That irony was not lost on his detractors. “It gets to a point where you’re completely surrounded by cities, and they all just selectively annex everything that’s valuable until there’s no tax base left,” said Marjorie Snook, the leader of the anti-cityhood DeKalb Strong, an organization that successfully derailed the creation of La Vista Hills in 2015.
Lary sees it this way, too. “The fight amongst us was: Black folks feel like white folks have been taking from them—like La Vista Hills was going to, like Tucker did, like Dunwoody did,” Lary explained. Where Lary and Snook disagree is over how to solve the problem. “And now here’s crazy Jason Lary coming along, and he wants to be like them. He’s an Uncle Tom; he’s not a real black man,” Lary said, mimicking his detractors. “The Uncle Tom thing burned. That hurt.” As far as Lary is concerned, Stonecrest is not so much a part of the cityhood movement as it is a reaction to it—an attempt to save his neighborhood before it’s too late.
Snook understands, but doesn’t like where that thinking leads—to small, homogenous communities that nurture resentments over turf. She said she watched the logic of cityhood flip from offense to defense: “Whether we want to do this or not, we’re going to become sitting ducks. If we’re not the ones who grab the tax base now, somebody else is going to grab it from us,” she said, distilling the latest pro-cityhood argument. “So it really becomes this war between communities for resources, for a tax base.” And Snook doesn’t want her local communities to be at war.
Lary, though, is comfortable with confrontation. “You cannot be a cotton ball for the kind of work I’m doing,” he told me. “It’s some Jimmy Hoffa-level work.” As he embarked on his war for Stonecrest, the hostility he faced from his friends and neighbors was countered by an unexpected source: a wave of conservative white support from across metro Atlanta. Lary quickly transitioned from a student of surrounding cityhood movements to a unique political ally. He raised funds and stumped for La Vista Hills’ ultimately unsuccessful bid to incorporate, and in the process, he gained a platform to drum up support for his own campaign—support Lary would badly need as he and his small team attempted to push Stonecrest’s incorporation through the Republican-controlled state legislature and onto the ballot in DeKalb.
Lary told me about one conversation he had with “a Tea Party guy” at a La Vista Hills fundraiser. “He says, ‘Hey, I just got to ask you a question: How are you going to get the rest of these black people to vote for you?’” Lary laughed. “I said, ‘I’m not. Your folks are going to vote for me!’”
No support, however, would be as crucial as that of a man named Oliver Porter. Lary is built like a linebacker and speaks in a theatrical baritone, but when he describes his first encounter with Porter, his voice lowers to an awed hush: “In the third [La Vista Hills] meeting, the master shows up: Oliver Porter.” After the meeting, Lary chased him down in the parking lot. “He thought I was trying to rob him!” Lary cackled. “And from that point on, I didn’t let him out of my sight.”
Lary was wise to do so. If the cityhood movement can be said to have produced anything resembling a political star, that star is Oliver Porter. Porter, now 80, was a longtime resident of Sandy Springs when it won its fight for incorporation. As interim city manager at the time, he not only got the city up and running, but, more significantly, served as its ideological architect.
Porter turned Sandy Springs into a kind of free-market Disneyland, outsourcing every possible municipal service he could to private industry in both the United States and abroad. Aside from its police and fire departments, Sandy Springs has only eight public employees—half of whom oversee the city’s relationships with the private companies that provide its services. (Georgia state law requires that schools be run at the county level.) At one point, a company from San Francisco collected the trash, a company in England gave out business licenses, and a business based out of Pasadena, California, ran the city’s court system.
No longer so beholden to the rest of Fulton County, Sandy Springs has dramatically improved its services without raising taxes. Visitors to the city can even take a tour of its municipal ingenuity, which features a stop at the city’s high-tech traffic-control center. In 2010, Sandy Springs was named a runner-up in the “Better Government Competition” held annually by the Pioneer Institute, an influential free-market think tank. Sandy Springs is now home to the headquarters of more Fortune 500 companies than the city of Atlanta, despite being, by population, less than a quarter of its size.
When Sandy Springs became the first city to incorporate, other communities flocked to Porter for guidance. His written instructions to fellow cityhood enthusiasts grew to manuscript length, and so he published them; then he wrote a second book a few years later. As the cityhood movement grew, Porter became known as the guru of lean, effective local government. The first time we spoke, he had just returned from giving a series of lectures in Hawaii. He has worked with municipalities in Honduras and across the United States; recently, his book became a best-seller in its genre (“Government”) in Japan. It is safe to say that there is no cityhood movement without Sandy Springs, and there is no Sandy Springs without Oliver Porter.
Porter looks like Ronald Reagan dressed up like Colonel Sanders. We met at his home in Sandy Springs, which sits at the end of a tranquil street lined with trees that were striking in their beauty but eerie in their uniformity. We sat in his library, which was entirely mahogany and leather, with floor-to-ceiling bookshelves. Down the hall was a plush carpeted room that incongruously contained nothing but a hot tub. Porter mentioned that he and his wife had just hosted a black-tie party for his birthday two days earlier. He then paused and apologized, with arresting sincerity, for having not invited me.
At first glance, it seems odd that Porter, who has never held public office, became the face of the cityhood movement. Really, though, his prominence is not in spite of this fact, but because of it. Porter is an engineer and a former AT&T executive; he considers his work within the cityhood movement to be utterly apolitical. “Everyone expected me to run for office,” he said, “and I’m just not psychologically attuned to being a politician. Compromise doesn’t make sense to me. It’s right or it’s wrong—there’s nothing in between.”
Given Porter’s obsession with government efficiency and his disdain for politics, he embodies precisely what the cityhood movement has long claimed to be about. The more he is recognized as its figurehead, the more the cityhood movement distances itself from its racially charged past.
Porter willingly cites Sandy Springs’ decades-long fight for incorporation but blanches at the connection of this history to the tax revolt led by Skandalakis or to race. In Porter’s telling, the incorporation of Sandy Springs was inspired by conflicts with the county over zoning. Fulton County, Porter told me, had passed a rule stating that no more than 40 percent of housing in Sandy Springs could be multiunit, and yet that number had climbed all the way to 52 percent.
“It seemed to us—and this may sound a little harsh—that they’d let anything be built that would generate some revenue that the county could then take and spend somewhere else,” he said. “We were getting swamped with apartments.”
I assumed that this concern over apartments was primarily about taxes, but Porter offered a different reason. “Mainly there was a concern that apartment-dwellers are not as devoted to the community as people who buy homes, pay property taxes, and all. They’re more transient and just not as involved in communities,” Porter told me. “Apartments also tend to—and this is not true of all—but tend to have a greater impact on public safety. There’s more crime—again, because of the transient nobody-knows-who-I-am sort of thing. Crimes, in our case, were tending to center in apartments. And again, the county was nonresponsive.”
Porter said that the creation of Sandy Springs, and, in effect, the entire cityhood movement, could have been easily prevented: “If the county had been a little more understanding or responsive to what the community was saying to them, it never would have happened.”
In 2007, two years after Sandy Springs’ incorporation, U.S. Census data that tracked owner- and renter-occupied homes by race showed that white people headed roughly 90 percent of homes that were owned in the city. Black people and Latinos accounted for around 3 percent each. Roughly 90 percent of black-headed households and 80 percent of Latino-headed households in Sandy Springs rented their homes.
Porter, however, is passionately insistent that race had nothing to do with Sandy Springs’ zoning concerns. “I can tell you personally, from having sat on the organizing committee for 10 years, that race was never an issue,” he told me. The only time race was discussed, Porter said, was when the committee brainstormed methods of minority outreach as it planned the new city.
It was clear from our conversations that Porter is deeply troubled by this line of criticism. “We’re not, as The Atlanta Journal [-Constitution] called us, a bunch of ‘white racists,’ or ‘rich, white racists,’” he said, pointing out that the percentage of residents of color has grown in Sandy Springs post-incorporation. Porter feels that the local media played a large role in painting the cityhood movement as discriminatory. He described a cycle by which negative media coverage gave Sandy Springs an unfair reputation on issues of race, breeding distrust and miscommunication that the media then highlighted further.
“I tried reaching out to the black community,” Porter said, “but there was no organized way to get to it. Normally, you get there through black churches … I went to a large one right across the border, seeking out help on how to reach folks with information. And the Atlanta paper wasn’t doing anything but criticizing. They weren’t publishing any real information.” Porter then added, with a mix of humor and contempt, that Cox Enterprises, which owns the Constitution, is headquartered in Sandy Springs but “wouldn’t admit it for many years. They always said, ‘We’re in Atlanta.’”
Porter’s insistence on the cityhood movement’s race neutrality comes down to a question of historical aperture. Porter seemed disgusted and frustrated as I read back to him the quote about how Sandy Springs once wanted to “build up a city separate from Atlanta and [its] Negroes.” Days after our meeting, he emailed me to even more strongly reject the criticism of the cityhood movement as racist. “1960,” he wrote, referring to the general provenance of the quote, “was over half a century ago.” Then, in a bulleted list, he continued:
You were not born.
The cityhood movement did not start until about 1980.
I did not live in Sandy Springs until 1983.
The civil rights movement had hardly begun [in 1960] and the Civil Rights Act may not have even been passed.
From this vantage point, then, Lary and Porter make natural allies: Both are heavily invested in distancing the cityhood movement from charges of racism. When I asked Porter if a Stonecrest victory on Election Day would be good for the racial optics of the movement, he thought it would be, but he was also pessimistic. “In a perfect world, it would,” Porter said. “But there are still those who will oppose cityhood and will try to make it a racist issue, and you’ll say, What about Stonecrest? And they will say, Well, that’s an anomaly. But I do think it could help a lot.”
Lary agrees with Porter, but his understanding of their alliance is also shaped by hard-won pragmatism. After stating that Republican support for Stonecrest was due in part to earnest people “knowing it was the right thing to do,” Lary smiled and recounted something his father told him about the campaign: “He said, ‘You’re gonna win this, because you’re not in the white folks’ way. You don’t have something they want to take away from you and keep for themselves.’” Lary seemed to demure to his father’s perspective even as he delivered it with knowing laughter.
Owens, the Emory professor, echoed that sentiment. New, majority-black cities, he said, “ultimately strengthen the rhetoric of those on the north side who have already created cities. All they have to say is, Look, we’re doing, obviously, what other people in the counties wish they could be doing, and we encourage them to keep trying to do it,” he said. “Behind that, I think, is the idea of, Yeah, you create your city, and we have our city over here.”
Tax revenue and government power may be the flashpoints of the cityhood debate, but undergirding the tension between each side is a fundamental disagreement about the definition of community. Many who oppose cityhood see the balkanization of metro Atlanta as the death of a county-wide unity they have long held dear. Snook, the leader of DeKalb Strong, told me that the preservation of the county’s identity was at the core of her organizing work.
“The big question that everything hinges on,” she said, “is, who is ‘us’? Where are the boundaries of my community? And one reason that this breaks my heart and upsets me so much is that, when I think of ‘us,’ I am thinking of the whole county. I think of the whole county as my community, and so I don’t think of my tax dollars as diverted elsewhere if they’re being spent within my county. But for some people, if it’s not in their little patch of land, they feel like somehow it’s being diverted, it’s being taken by other people. And it comes down to, who do you think of as ‘other people’ and who do you think of as ‘us’?”
For Lary, solidarity is something only his wealthy, white neighbors to the north can afford to cherish. After speeding away from a strip of highway median on which Lary had, daringly, parked in order to hammer down some signs, I brought up Snook’s criticism. As we idled at a red light, he took his hands and spread them far apart. “She’s here on this issue,” he said, gesturing with his left, “and I’m way over here,” shaking his right. “I want to shed that ugly [DeKalb] image. Because they have business in central and north DeKalb. They have industry, they have strong homes.” As long as a town carries the DeKalb brand and not its own, Lary said, nothing “is really going to happen with them.”
While Lary and Porter are unwavering in their advocacy for the cityhood movement, they both acknowledge that achieving their goals means leaving behind a group of increasingly disadvantaged neighbors. When I asked Porter about this, he jumped in before I could finish the question. “So the issue is: People say, Well, it isn’t fair to the rest of the people who got left behind,” he said. “My answer to them has been: Form your own city. If you want to get good government, form your own city. Don’t just keep depending on someone else to subsidize you.”
This position is key to Porter’s argument. People in unincorporated areas may be worse off as a result of the cityhood movement, but the county is still exploiting them—and all they have to do to mitigate the damage from the incorporations around them is to incorporate themselves.
“What bothers me is, out there, all of these existing governments operating so inefficiently,” Porter said, practically seething. “And I’ve studied them, and I know they could be doing it much more efficiently for their citizens and providing them better service at the same time … And yet, you cannot get elected officials to do it, because they basically are more concerned about their own jobs than they are the citizens.”
Lary was more blunt: “Hey, go get your own. Do it for yourself.”
But this is easier said than done. Incorporation campaigns are expensive. In addition to standard campaign costs, would-be cities must pay for nonpartisan feasibility studies to prove their economic sustainability. Lary went into significant debt financing the Stonecrest campaign and put in a huge amount of time. As the cityhood movement spreads across more of metro Atlanta, the people left in unincorporated areas will be the same ones with the fewest resources needed to form a city themselves. But this “get your own” attitude is reflected in the very rules for incorporation in Georgia. The only people who get to vote on the creation of a new city are those who would become its residents. Everyone else gets left behind without a say.
Lary acknowledged all of this but was unmoved. Sticking it out with DeKalb County, he told me, “got us fucking trash on the ground, and trees growing out of the highway, and a bad economy, and houses that are underwater. So no—I’m ready to branch off.” Everyone else, he said, “can go somewhere else.”
On Election Day, Lary’s efforts paid off: Stonecrest, Georgia, became its own city. It passed with 59 percent of the vote. So did South Fulton, a previously unincorporated part of Fulton County with racial demographics nearly identical to Stonecrest’s. (It passed with 59 percent, too.)
At its core, the cityhood movement has been a referendum on the question of belonging—to whom certain communities feel beholden and what that responsibility entails. With Stonecrest, it seems fair to say that the ethos of the cityhood movement—with its winnowing away of communities’ imagined size and their responsibility to outsiders—is gaining steam. The White House is now guided by the mantra “America First.” The cityhood movement is, essentially, “Your Neighborhood First.”
Neither are new concepts. The political maneuvering involved in cityhood has been around a long time. “In terms of drawing municipal boundaries in order to self-interestedly get a tax base, or avoid constructing apartments, or avoid having affordable housing—let he without sin cast the first stone,” Paul Lewis, a professor at Arizona State who studies the creation of new cities, told me. “The Northeast—areas like Philadelphia and New York City and Boston—were doing stuff like this 50 or more years ago.”
Owens, though, told me, “In a place like Atlanta … perhaps, it’s about more than just what’s presented on the surface.” This uncertainty, of course, is how structural racism works. By incentivizing and even celebrating the consolidation of racial privilege, it makes it impossible to see where racial discrimination ends and citizen engagement begins. Indeed, it often makes these things—for whites—one and the same.
And yet, since being voted into existence, Stonecrest has made good on some of the promises Lary’s critics said were the most farfetched. Lary and his team promised an influx of economic development, and in February, the city announced a deal with the Atlanta Sports Connection, which will build a 200-acre, $200 million athletic complex—featuring, among other things, 28 sports fields, a 15,000-seat stadium, and a 380,000-square-foot entertainment district—right in the heart of Stonecrest.
Lary and his team also promised to give their neighbors a political voice, and the races for Stonecrest’s five city-council seats have been unusually dynamic. Mary-Pat Hector, for example, a 19-year-old Spelman College sophomore ran for one of the seats—losing last week in a runoff by just 22 votes. She’s the youngest person to have ever run for public office in Georgia.
“When Obama ran for president, we voted for him because he was a symbol of what we can be,” Lary told me. “That’s what Stonecrest is—it’s a symbol of what we can be.” He wants “to show people that just because it’s black,” that doesn’t mean Stonecrest will fail. “That’s what’s happened with DeKalb County. It’s black, and it’s screwed up, and we were in charge of it for two decades.” Now, he wants black communities around Georgia to see Stonecrest as a model and beacon of black self-determination.
“I think Stonecrest and South Fulton put the nail in the coffin for unincorporated areas. There will be no more unincorporated areas. Everyone will incorporate, everyone will have a city,” Lary said.
At the victory party for Stonecrest, Oliver Porter told the attendees how proud they should be to have someone like Lary working for their “independence.” And Lary has already been strategizing with other cityhood hopefuls, whom he said were “anxious to get started, because they now feel empowered.” He envisioned himself paying it forward as a mentor and adviser, as Porter did for him.
First, though, Lary will start work at his new job. In March, the citizens of Stonecrest elected him to be their first mayor. Nearly every aspect of the cityhood movement has sown discord, and yet Lary’s election seems to be the only fair outcome of this chapter in Stonecrest’s history. The man who put the city on the map is now responsible for keeping it there.
Earlier this week, Ulrich Baer, a vice provost at New York University, published an op-ed in The New York Times defending student-activist efforts to shut down speakers at institutions of higher education like Auburn, UC Berkeley, and Middlebury. He urged readers inclined to defend liberal norms on matters of speech to adopt “a more sophisticated understanding” and argued that “the parameters of public speech must be continually redrawn to accommodate those who previously had no standing.”
Were there “parameters of speech” at Berkeley 10 or 15 years ago that denied standing to students who have it today? What were the parameters? Who are the students?
The op-ed is elusive throughout in a manner typical of university administrators with censorious instincts. Many words are lavished on a questionably relevant anecdote about the Holocaust and the obligatory theory of a postmodern French philosopher. Very few words clarify what speech is to be suppressed by what standards, or who is to decide if they are met, as if we needn’t worry overmuch about limiting principles or the abuses that invariably follow when they are absent—even though marginalized groups typically bear the attendant burdens most heavily.
The op-ed comes closest to clarifying what speech is to be suppressed after casting ostensibly unworthy speech as that which marshals abstract argument against personal experience. The dice are quickly loaded with Baer’s choice of example: He leads readers to think of bygone instances of Holocaust denial, “where invidious but often well-publicized cranks confronted survivors with the absurd challenge to produce incontrovertible eyewitness evidence of their experience of the killing machines set up by the Nazis to exterminate the Jews of Europe. Not only was such evidence unavailable, but it also challenged the Jewish survivors to produce evidence of their own legitimacy in a discourse that had systematically denied their humanity.”
Grounding the op-ed in that example is odd for a few reasons.
While it is monstrous to tell a Holocaust survivor that the horrors he or she lived through did not happen, the paradigm of evidence-based empiricism seems preferable, for those intent on Holocaust deniers losing, than a paradigm where personal experience is paramount. After all, Holocaust survivors will not be with us much longer; those who feel sure the Holocaust never happened will outlive them.
What’s more, even though robust free-speech protections permitted anyone to deny the Holocaust in America, and protected neo-Nazis as they marched through Skokie (a free-speech precedent later marshaled to defend the speech of racial minorities), Holocaust denial stayed a highly stigmatized, fringe belief. The descendants of Holocaust survivors are not marginal victims kept down by bygone free speech. So the culture of relatively absolute free speech worked. Indeed, Holocaust denial is arguably less widespread in the country with no laws against it than some Western European countries that have long criminalized denying the Holocaust.
Nevertheless, Baer concludes from his example that “certain topics restrict speech as a public good.” So let’s grant the premise. Maybe there are certain topics like that.
Of course, we could as easily load the dice in the other direction, illustrating the danger of elevating personal experience over demands for evidence or abstract reasoning. Consider the marginalized son of Appalachian coal miners who goes off to college feeling sure, based on personal experience, that the climate is not changing. Few would disagree that having deeply held experience-based beliefs contradicted by evidence, and siding with the evidence, is part of what college should teach.
What’s more, free speech facilitates making experiential claims as much as reasoned claims, so even if your premise is that certain debates are setbacks for the public good, you might still champion robust speech protections so experiential claims are protected. Instead, the op-ed gives only the Holocaust example, making it seem monstrous to subject personal experience to the marketplace of ideas, then segues to the most specific account Baer offers of who and what should get censored, by his lights.
“Some things are unmentionable and undebatable, but not because they offend the sensibilities of the sheltered young,” he writes. “Some topics, such as claims that some human beings are by definition inferior to others, or illegal or unworthy of legal standing, are not open to debate because such people cannot debate them on the same terms.” He adds that recent student protests “should be understood as an attempt to ensure the conditions of free speech for a greater group of people, rather than censorship. Liberal free-speech advocates rush to point out that the views of these individuals must be heard first to be rejected. But this is not the case. Universities invite speakers not chiefly to present otherwise unavailable discoveries, but to present to the public views they have presented elsewhere. When those views invalidate the humanity of some people, they restrict speech as a public good.”
To reformulate that sketchy explanation into a speech test:
The last claim is most easily dispatched.
Don’t worry, students, Milo Yiannopolous does not, in fact, possess the power to “invalidate” your humanity—as yet, he hasn’t even shown an ability to dignify his own. The humanity of every individual is a fact. No one can invalidate it with speech. Teaching undergraduates otherwise renders them needlessly vulnerable to bigots and trolls. (And people who believe that, say, undocumented Honduran immigrants have no legal right to live here are not, by and large, even claiming their humanity is invalid.)
As for the rest:
Does Baer grasp what his positions imply? Using the standards he offers, here is a partial list of speakers that would have to be denied a platform at New York University:
As Jonathan Chait aptly observers, “Nearly all American politicians in both major parties support some limits on legal immigration, and some measures to enforce those laws. Virtually all of them define some human beings as ‘unworthy of legal standing.’”
If Plato were reincarnated for a day and if he offered to deliver a lecture at NYU, one wonders if Baer would decline the offer, what with the philosopher’s writing on eugenics and belief that some humans are inferior to others. In fact, since Baer thinks some questions Plato raised are “unmentionable and undebatable,” one wonders if or why he is comfortable with NYU professors assigning the philosopher as course reading, let alone asking undergraduates to grapple with his ideas in class discussions.
Baer is presumably earnest in believing that declaring certain speakers and ideas beyond mention or debate “should be understood as an attempt to ensure the conditions of free speech for a greater group of people,” and that in so doing, he is acting as the righteous champion and protector of oppressed groups. But implicit in his understanding are lazy stereotypes common to many who share his views on speech.
To attend New York University, as I did for graduate school, or to converse with undergraduates at dozens of selective colleges and universities, as I have spent scores of hours doing, confirms what any observer of American life ought to know: that the opinions of African Americans, Hispanics, Asian Americans, gays, lesbians, trans people, undocumented immigrants, foreign students, people from minority religious groups, and those of members of every other identity group on campus are hugely diverse. There is no reason to believe (as some white supremacists do) that minority students need an experiential paradigm to thrive, or are less suited to reasoning or liberal values, views that Baer seems to imply but never quite states outright.
What’s more, in a failure to think intersectionally, Baer seems not to realize that there are millions of black and Hispanic Americans whose views on, say, illegal immigration or transgender rights run afoul of his standards for what is even mentionable. How much speech by historically marginalized groups will be stifled in Baer’s effort “to ensure the conditions of free speech for a greater group of people”?
To invoke a postmodern philosopher or the critical race theorists, and to proceed as if their views on hearing and suppressing speech are the consensus position of a generation, or students of color, or that members of some groups are inclined to thrive under a censorious model of speech, assumes group beliefs, inclinations, and psychological predispositions not in evidence. In fact, many members of minority groups prefer an education free from the soft bigotry of those stereotyping them as snowflakes who need protecting from ideas when they can more than hold their own.
There are students of color at Middlebury who are upset that Charles Murray was shut down; at Claremont McKenna who are upset that Heather Mac Donald was shut down; and at Yale who are upset at the treatment of Nicholas and Erika Christakis. Some are loath to publicly state their views, lest they be stigmatized by campus activists as “shady people of color.” And one needn’t long wander the streets of Berkeley, California, to run across one of the world’s most ethnically diverse collections of free-speech absolutists on the planet, among many other leftist factions.
When Baer asserts that “the idea of freedom of speech does not mean a blanket permission to say anything anybody thinks,” but that, rather, “it means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community,” he further traffics in a notion so pernicious that it is vital to reject it. If Richard Spencer or Ann Coulter or Milo Yiannopolous retired from public life tomorrow, I believe the world would be a better place; I am glad people voice their opposition to them; if I weren’t a journalist I would happily hold a protest sign outside one of their talks; and I wish conservative groups would stop inviting them as speakers. But it is inaccurate and disempowering to tell undergraduates that any bigot can render them unable to participate in public discourse merely by speaking on campus; or can render them less than fully recognized in their community merely by addressing it.
“What is under severe attack, in the name of an absolute notion of free speech,” Baer writes, “are the rights, both legal and cultural, of minorities to participate in public discourse.” In fact, minorities are not only free to participate in discourse on college campuses, they are doing so vigorously; organizations like the ACLU and FIRE stand ready to defend any abrogations of their rights; and even their protests face orders of magnitude less pushback from faculty and administrators than white college students faced in the 1960s, precisely because several generations of civil libertarians have fought like hell for extremely broad notions of free speech to prevail on campus.
That leaves one last pernicious formulation to address.
One insight many free-speech advocates share is that opining on what “should” or “shouldn’t” be up for debate is beside the point. Chattel slavery shouldn’t have been up for debate. Thank goodness that abolitionists joined and won the debate anyway. Gay marriage shouldn’t have been up for debate. Thank goodness Andrew Sullivan wasn’t acculturated to believe that merely engaging in that debate risked invalidating his existence. Baer believes the claim that some people are “illegal or unworthy of legal standing” shouldn’t be up for debate today. How does he suppose that unpopular position will advance and triumph over antagonists who presently include an overwhelming majority of Americans—and most elected officials from both parties—if the next generation of educational elites is prevented from debating or even mentioning the matter in the one setting where they are training to reason well? They’d benefit from being better prepared than that. Their antagonists will be.
President Trump is reportedly mulling an executive order to withdraw the United States from the North American Free Trade Agreement, a major trade deal with Canada and Mexico that reshaped broad sections of the U.S. economy after going into effect in 1994. But it might not be as easy to get out of NAFTA as Trump may think.
The president’s aversion toward multilateral trade agreements placed him in a similar ideological camp as pro-Brexit voters in Britain, who narrowly won a referendum last year to withdraw their country from the European Union. Trump celebrated the result at the time and claimed he successfully predicted it, even referring to himself as “Mr. Brexit.” For him and his supporters, the surprise result across the Atlantic showed their upset victory could also be possible. It additionally demonstrated a broader populist backlash against establishment institutions.
Britain’s experience also illustrates how Trump might not be able to carry out his own Amerexit from the free-trade agreement he’s so frequently criticized. To understand the difference, look no further than Article 50 of the Treaty on European Union, which establishes the legal mechanism by which a country can withdraw from the European bloc.
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
Setting aside the legalese, Article 50 is essentially a ticking time bomb with a two-year fuse. First, a country formally notifies the European Council of its intent to withdraw. This may seem largely procedural since no country would decide to leave without a referendum or parliamentary vote of some kind. But the intent to withdraw isn’t really about informing European leaders; it’s about starting the two-year countdown. Once time is up, the country is out.
We’re seeing this play out in real time with Brexit. The moment Prime Minister Theresa May sent European Council President Donald Tusk a letter informing him of the U.K.’s formal intent to withdraw on March 29, it opened a 24-month window for Britain and Europe to negotiate the country’s orderly withdrawal. Ideally, both sides would reach an agreement before that window closes. But Britain will be severed from the European Union in two years whether they reach one or not. (The two sides can extend the deadline, but it’s not clear if all 27 European countries would agree to one unless a final deal were imminent.)
The equivalent text in the North American Free Trade Agreement, on the other hand, is less dramatic.
Article 2205: Withdrawal
A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. If a Party withdraws, the Agreement shall remain in force for the remaining Parties.
Under Article 50, the EU treaties “shall cease to apply” once the two-year transition period ends. Under Article 2205, however, a participating country “may withdraw” from the agreement once the six-month period ends. That’s no small difference: The first phrasing sets forth that a country must withdraw, while the second one indicates that a country can withdraw.
Jon Johnson, an adviser to the Canadian government during the original NAFTA negotiations, described this crucial phrasing earlier this year as a potential barrier for Trump’s unilateral action. “Under the plain wording of NAFTA Article 2205, providing the written notice is simply a condition that a party has to fulfill before it proceeds to withdraw from NAFTA,” he wrote. “Providing the notice does not have the effect of causing a party to withdraw from NAFTA.”
What’s more, Trump might not have the lawful authority to yank the United States out of the agreement—it’s a matter of debate. Many experts believe that, under Section 125 of the Trade Act of 1974, the president possesses the authority to unilaterally withdraw from trade agreements, including NAFTA. But it’s somewhat uncharted legal territory, and not all agree. Since Congress enacted NAFTA’s provisions by passing a federal law called the Implementation Act, Johnson argues, which doesn’t grant the president the power to withdraw from NAFTA unilaterally, he can’t act on his own. “Since NAFTA was approved by Congress under the authority expressly granted to Congress under the Commerce Clause, it follows that only Congress has the power to reverse that approval and cause the United States to withdraw from NAFTA,” he concludes.
That could forestall Trump from attempting a Brexit of his own. In Britain, the decision to leave the EU was ultimately up to Theresa May. But in North America, a different “may” could still keep the United States in NAFTA.
Talk about an impressive political about-face. In the fight over whether the government funding bill currently under negotiation would include $1.5 billion for his Great Wall, Donald Trump went from intransigent chest-thumper to panicked back-pedaler in, what, six days?
Starting last Wednesday, President Trump had budget chief Mick Mulvaney running all over town warning that the president would not look kindly on any deal that did not fund his pet border wall—that, in fact, he might even refuse to sign such a bill. Soon, other administration members, including Homeland Security chief John Kelly and White House chief of staff Reince Priebus, were pushing the same message.
By the following Monday evening—having made zero progress with his congressional arm twisting and facing the vivid possibility of being blamed for shutting down the government—Trump had abandoned the fight. He told a gaggle of conservative media types visiting the White House that, on second thought, he would defer the wall debate to September.
Not that the outcome of this showdown was much of a surprise. Around Capitol Hill, Trump’s procuring a billion-plus for his wall in this spending agreement was considered about as likely as Bill O’Reilly’s being named executive director of Feministing.
That said, the speed with which the president folded “like a cheap suit,” gloated one House Democratic aide) was notable. Less than a week? One would have thought that, with so much at stake, Trump would have fought the good fight for at least another day or two. Because, while the president can put a happy spin on whatever immigration-control measures may wind up in the spending deal, between the health care bill and the wall funding, lawmakers know the real score: Congress: 2, Trump: 0.
Forget the particulars of the fiscal year 2017 budget. Trump’s flubbed attempt to play the tough guy this week carries broader, longer-term implications for his relationship with Congress. Trump blew into office vowing to whip all the crooks, losers, and dummies on the Hill into shape. Fast. Only he could drain that swamp, and woe be unto all who stood in his way.
Faced with this seething mass of presidential bombast, neither Democratic nor Republican lawmakers had any idea what to expect. Some expressed optimism. Others, horror. Most voiced anxiety. But they all recognized that Trump would need to establish his leadership chops early on. That is how the game is played in Washington. The players test one another. Challenges are issued. Bluffs are called. Power dynamics are established.
Thus far, the president has done himself no favors with his penchant for ultimatums. No matter how Trump tweets it, or what “alternative facts” he promotes, the legislative narrative of his early tenure is what it is: As with last month’s health care vote, Trump tried his my-way-or-the-highway shtick with wall funding. And, as with last month’s health care vote, Congress shrugged.
This is not, to put it mildly, an effective formula for a president’s winning the fear and/or respect of his party’s lawmakers—much less those of the opposition party.
“He just looks weak and incompetent,” observed a frustrated Republican Senate aide. “And the Democrats smell blood in the water. Why should they take him seriously on everything? Why should they stop blocking all of his nominees? All of his agenda? He’s toast.”
“Toast” may be a bit harsh. (Stale bread, maybe? Dry muffin?) But no question, the Democrats I’ve talked with in recent days weren’t feeling awed by Trump’s powers of persuasion‚—and most felt that way before he backed down on the wall. After all, they reasoned, if lawmakers from the president’s own party were willing to buck him on the health care bill, why on earth should they fear his displeasure?
With his wall threats, Trump may well have assumed he was simply playing hardball in defense of a specific campaign promise—staking out a tough opening stance from which to begin negotiations. But the president is new to Washington and has no political track record. While many voters love that about him, every power play he attempts is being watched closely, and judged sharply, by allies and adversaries alike. Whatever the particulars of a given fight, the president’s credibility and reputation are always on the line.
When his self-provoked standoff with Congress grew uncomfortable this week, Trump blinked. Again. His supporters may not care all that much. (Look to the fall, people!) Many probably didn’t even notice. But you can bet lawmakers did. And they are unlikely to forget.
In October 1962, my middle school principal announced an emergency plan: in case of attack, those of us who lived within a mile would walk home.
That is still the longest walk I never took; half a century later, I dream about it sometimes. It is like a faded, scratchy clip from a black-and-white episode of The Twilight Zone: empty streets; sirens echoing off walls.
Then a flash of light.
The New York Times has called the confrontation with North Korea “a ‘Cuban missile crisis in slow motion.’” But I haven’t had a chance to worry about that yet. I am still too scared by what happened on and after April 6, the day President Trump decided to throw cruise missiles at Syria. The use of military force against another country is a huge legal event. Trump has literally treated this solemn decision like a round of golf at Mar-a-Lago, and the courtiers and commentators have fallen into line.
The wise heads assure us that the Syria intervention is a good thing for all concerned. I have my doubts, but my expertise doesn’t run to the intricacies of Middle East policy.
But I do know something about law. What terrifies me about Trump’s apparently impulsive decision to strike at Syria is that it appears to be illegal under U.S. and international law; that the president will not deign to explain why he thinks his actions were within the law; and that the same wise heads TV and newspaper heads—the green-room crowd of lawmakers, think-tankers, and newspaper columnists who tell us all what to think—display no interest in the issue. Leaders of Congress display no enthusiasm for discharging their constitutional responsibility to decide when the country may go to war.
Instead of challenging the legal basis of the strike, the institutions we regard as “checks” on the president have simply fawned and simpered.
Military force is dangerous; its lawless use is even more dangerous. The constitutional and statutory constraints on the war power, as interpreted in practice over the past 75 years, already afford a president broad leeway to send American forces into harm’s way; but Trump has now blown past the few constraints that remain.
And nobody is calling him on that.
President Trump, after watching televised footage of a gas attack on the rebel-held city of Khan Sheikhoun, ordered U.S. forces to strike at a Syrian Air Force base. That was not an attack on the United States. Trump did not request authorization from Congress. He also did not seek authorization from the United Nations Security Council; he did not consult with the NATO allies who have been supporting U.S. military operations elsewhere in the Middle East.
Let’s be clear about the strike against Syria. It is not and cannot be part of the ongoing “war” the U.S. is waging against the successors of the Taliban and Al Qaeda. Syria’s armed forces aren’t part of Al Qaeda or any of its successors; the 2001 Authorization for the Use of Military Force doesn’t cover Syria. By launching missiles against Bashar al Assad’s military, Trump was crossing an important legal line.
Under the Constitution, the crossing of that line must, either at the time or soon afterwards, involve both of the “political branches” of the government—Congress and the President. Tiresome as it may be to reminded of this, Article I § 8 cl. 11 gives to Congress, not the President, the power “to declare war””—that is, to begin hostilities against another country. The President is designated by Article II § 2 cl. 1 as “commander in chief” of the armed forces. By implication—and, from what we can tell from the founding-era materials, by design—this gives a president power to respond to emergencies and what James Madison called “sudden attacks.” This, however, is a narrow, temporary exception to Congress’s plenary power over war and peace, not a backdoor to full-scale warfare.
Some people believe War Powers Resolution changes this constitutional calculus—“giving” the President power to commit military forces for up to 60 days. It doesn’t. The Resolution in its first section repeats that the president’s commander-in-chief powers are properly “exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The 60-day limit is an additional limit, not a blank check for short wars.
In a War Powers letter to Congress, Trump said, “I directed this action in order to degrade the Syrian military’s ability to conduct further chemical weapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons, thereby promoting the stability of the region and averting a worsening of the region’s current humanitarian catastrophe. I acted in the vital national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive.”
I don’t know about you, but I can’t extract a legal rationale from that. So far, the biggest nod to law that I have seen is a set of “talking points” issued to administration press relations officials.
Trump hasn’t bothered. And nobody in official Washington has made him pay the slightest price for it.
American domestic law is not the only limit on a president’s power. The United States is bound by the United Nations Charter (a treaty ratified by Congress and incorporated into U.S. law by statute) to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” without the explicit permission of the United Nations Security Council. The only exception is for immediate cases of “collective or individual self-defense” against armed attack “until the Security Council has taken the measures necessary to maintain international peace and security.” The attack on Syria was not authorized by the Security Council; the United States did not even ask for authorization. It is not a response to an armed attack against the United States; it’s not an act of self-defense by a collective body. In fact, what is most striking about the international aspects of the Syria mission is the utter contempt it displayed for the U.N., for America’s allies, and for NATO.
That matches the contempt Trump has shown for the American people. Bill Clinton and Barack Obama both crossed the line of executive authority in war matters—Clinton in Kosovo in 1999 and Obama in Libya in 2014. But at least, both presidents provided comprehensive public explanations of the legal authority they claimed for the strikes.
The first thing a president should do—and, as far as I can tell, every president before Trump has done after an intervention like this—is explain himself to the nation. What was the objective of the intervention? When will it end? How will we know whether it has succeeded? Administration officials’ explanations to the press have been varied and inconsistent: deterring new uses of chemical weapons, degrading Syria’s capability to produce more weapons, giving voice to international outrage to Assad’s crimes, and, finally (and most plausibly) simply expressing Trump’s personal outrage at televised images of dead children.
In fact, Trump seems to believe the use of force is his personal prerogative—involving his emotional needs and what he recently called “my military.” The closest thing we have gotten to a plan for the Syrian situation has come from U.N. Ambassador Nikki Haley: “If he needs to do more, he will do more.”
To be clear: there’s a case that Trump actually had the authority to take action in Syria. I don’t agree with it, but I respect those who do. There is, in my judgment, no case that Trump doesn’t need to explain to Congress and the nation what he has done with America’s armed forces, why he believes it was legal, what he plans to do next, and what he hopes to achieve.
On this matter, Congress and the preening “watchdogs” of the press and cable news have surrendered to Trump without firing a shot.
Why would he hesitate to do whatever he feels like the next time he is challenged?
That to me is as scary as that imagined long walk home.
A proposed draft executive order that would pull the United States out of the North American Free Trade Agreement set off the latest round in a now-familiar series in Trump’s White House: The friction of Donald Trump’s nationalist campaign promises against the reality of governance, and the tension between moderating forces within the White House and more aggressive ideological purists.
The draft of the executive order, its existence first reported by Politico, is “in advanced stages of the process,” a senior White House official told me on Wednesday afternoon. But on Wednesday evening, the White House released a readout of a call between President Trump, President Pena Nieto of Mexico, and Prime Minister Trudeau of Canada, saying that Trump had “agreed not to terminate NAFTA at this time.” It quoted Trump as saying: “It is my privilege to bring NAFTA up to date at this time,” and said the three leaders had agreed to embark on renegotiation of the deal.
Earlier on Wednesday, The New York Times had reported that Trump was likely to sign the order; the president “wants to be more aggressive on trade, economic nationalism, America first,” the senior White House official told me. It’s still unclear what exactly is in the draft and how it would trigger the U.S. pulling out of the agreement, which requires six months notice before one of the signatories can withdraw.
As a candidate who ran on protectionist trade policy, one of Trump’s main bêtes noires was NAFTA, which he has called the “worst trade deal ever approved in this country.” Trump’s rhetoric on NAFTA helped endear him to the white working class voters in formerly manufacturing-heavy areas who helped put him in the White House. He has repeatedly promised to renegotiate the agreement, and if all else fails, pull out altogether. Early on in his administration, Trump lived up to one trade-related campaign promise by pulling the U.S. out of the Trans-Pacific Partnership.
But in the early days of his administration, Trump had shown signs of moderating on trade, or at least of entertaining more moderate views. Reports leaked out of a “civil war” over trade, with nationalist ideologues like Bannon and National Trade Council chief Peter Navarro on one side, and Wall Street-connected centrists like National Economic Council head Gary Cohn on the other. And a draft letter to Congress that leaked to the media appeared to show a more moderate posture towards NAFTA, suggesting less dramatic changes to the agreement and not proposing ditching it altogether.
The senior White House official told me that Cohn and his allies had been against this draft executive order on NAFTA. Cohn has been seen as one of the key figures in the faction associated with Trump’s son-in-law Jared Kushner and daughter Ivanka Trump; infighting between this faction and Bannon recently spilled into public view. The conventional wisdom had been that the Kushner allies came out as the victors, with Bannon’s fall from grace representing the sidelining of the populist nationalism Trump espoused as a candidate. Bannon was removed from his seat on the principals’ committee of the National Security Council, and Trump himself chastised the chief strategist publicly, saying in interviews that Bannon had joined his campaign late and that it was Trump who led the White House’s strategy, not Bannon.
But despite weeks of Washington gossip assuming Bannon’s imminent downfall, Bannon is still there. And whether or not the order is signed, that it is even being considered ups the ante on the administration’s posture towards U.S. trading partners following increasingly heated rhetoric from the administration. Trump has become increasingly aggressive towards Canada, imposing a tariff on Canadian lumber.
"People don't realize Canada's been very rough on the United States,” Trump told a meeting of agricultural leaders on Tuesday. “They've outsmarted our politicians for years."
“Canada has made business for our dairy farmers in Wisconsin and other border states very difficult. We will not stand for this. Watch!” Trump tweeted on Tuesday.
Just last week, Trump told the AP in an interview that he was either going to renegotiate or terminate NAFTA, and that “If they don't treat fairly, I am terminating NAFTA.”
Bannon and Navarro reportedly wrote the draft of the order. Navarro is a trade protectionist academic who has sounded the drumbeat against China for years. The executive orders in which Bannon has had the largest hand haven’t had a great success rate; the first and second iterations of the travel ban targeting mostly Muslim nations did not stand up to legal challenges.
It’s also unclear whether Trump really could have unilaterally pulled out of NAFTA without congressional approval; a recent study by a Canadian think tank concluded that he cannot. But politically, the fact that the order came close to being signed could be a signal that Bannon is not a spent force, the nationalist wing remains influential in the White House.
The Trump administration won’t try to wreck the Affordable Care Act on its own quite yet, telling Democrats it plans to continue making payments to health insurers considered crucial for the law’s stability.
Reince Priebus, the White House chief of staff, informed Democratic leaders of the administration’s plans by phone on Wednesday in an effort to resolve one of the final obstacles in negotiations over legislation to keep the government open past Friday. It was the second about-face for the White House in the budget talks this week; on Monday night the president said he would back off a demand for a down payment from Congress for his southern border wall.
“Our major concerns in these negotiations have been about funding for the wall and uncertainty about the [cost-sharing reduction] payments crucial to the stability of the marketplaces under the Affordable Care Act,” House Minority Leader Nancy Pelosi said Wednesday afternoon. “We’ve now made progress on both of these fronts.” Pelosi said there were other issues that remained unresolved in the spending-bill talks, but the prospect of a government shutdown has decreased. If by Friday Congress doesn’t pass an omnibus appropriations bill funding the government through September, lawmakers are expected to approve a stopgap measure to buy them some more time.
The subsidies help insurers offset the cost of covering older and sicker customers under the law, which bans discrimination based on age or preexisting medical conditions. But they have been the subject of litigation since 2014, when House Republicans filed a lawsuit alleging that the Obama administration was making the payments without the express authorization of Congress. The House won an initial victory in the case, and Trump has twice threatened to withhold the payments—first as leverage to get Democrats to cooperate with efforts to repeal Obamacare and then in a bid to win their support for funding the wall.
But the White House has now backed off both times, in part because it is under pressure both from the insurance industry and from some Republican lawmakers, who fear a political backlash if their constituents suffer premium increases or lose their insurance as a result of the missed payments.
Conservatives, on the other hand, were unhappy with the reversal. “The Constitution provides that ‘No money may be drawn from the Treasury, but in consequence of appropriations made by law.’ Congress has made no appropriation for Obamacare cost-sharing reduction payments,” said Representative Mark Walker of North Carolina, chairman of the conservative Republican Study Committee. “Therefore, we believe making these payments without congressional approval is both clearly illegal and unconstitutional, as the district court held in House v. Price.” Democrats have already criticized the Trump administration for trying to undermine Obamacare in other ways even as Republicans stumbled in their efforts to repeal it. But withholding the subsidy payments was seen as far more damaging to the law’s short-term stability.
The move on Wednesday was not a total victory for Democrats, however. Pelosi and other lawmakers had pushed for the spending bill they’re now negotiating to include language requiring the administration to continue the subsidies. The White House rejected that demand, with budget chief Mick Mulvaney saying the president would not sign legislation with that provision included. So while the administration has decided to continue the Obamacare payments on its own, there’s nothing to stop it from halting them down the road.
The idea is peppered through the writings of scholars, great thinkers, and New Atheist-types: Education is the cure for religion. Freud wrote that civilization “has little to fear from educated people and brain-workers” who have rejected religion. And “if religious instruction were not allowed until the child had attained the age of reason,” maintained Christopher Hitchens, “we would be living in a quite different world.”
New data from the Pew Research Center doesn’t disprove these claims, but it does challenge them. While Americans with college experience are overall less likely to attend services, pray on a regular basis, and say religion is very important to them, that’s not true within many faith groups. In fact, Catholic, Mormon, and Protestant college grads are all more likely to attend church on a weekly basis than their less educated peers. This was not the trend among religious minorities like Muslims and Jews, or among people who don’t affiliate with any religion at all, suggesting that education has a distinctive effect on religiosity within the world of Christianity.
There are at least two different ways to think about the relationship between education and religiosity: how schooling affects belief, and how it affects practice. Pew’s researchers looked at data from a number of recent surveys, including their 35,000-person study of American religion from 2014. They found that educated people are generally less likely to believe in God: Among all U.S. adults, only 83 percent of college grads said they think God exists, while 92 percent of people with only a high-school degree or less said the same.
Within Christianity, though, the difference all but disappears. Among educated mainline Protestants, 96 percent said they believe in God, compared to 97 percent among the less educated; among Catholics, 98 percent of both groups said the same. Among Mormons, black Protestants, and evangelical Protestants, there was effectively no difference at all, because virtually everyone in those groups said they believe in God.
Educational differences had a much bigger effect on religious practice. Sixty-eight percent of college-educated evangelical Protestants go to church every week, compared to 55 percent of those who only went to high school. In fact, college grads show up in the church pews more often in nearly every kind of Christian tradition: Among mainline Protestants, weekly attendance was 36 to 31 percent, more educated to less; among black Protestants, 59 to 52 percent; and among Catholics, 45 to 39 percent. The effect was perhaps greatest among Mormons: 85 percent of Mormon college graduates go to church at least once a week, compared to 66 percent of their peers with a high-school education or less.
The trends in religious-minority groups are different. Among Muslims, education didn’t make much of a difference in people’s belief or practice: Roughly half of people of all levels of education attend services at least once a week, and nearly all Muslims reported believing in God. Among Jews, the effect was reversed: Roughly one-quarter of Jews with a high-school degree or less attend services every week, compared to roughly one-tenth of college-educated Jews. And 58 percent of less educated Jews believe in God, compared to less than a third of their more educated peers. As Pew points out, this effect is likely driven in part by Orthodox Jews, who tend to be much more observant and much less educated—at least in a secular sense—than their Reform and Conservative peers.
Perhaps high-school-educated Christians feel less able to find community.
Among Christians, the pattern of educated people being more involved in their religious communities makes sense. As I’ve written before, communal involvement of all kinds is increasingly becoming a luxury good of sorts, with higher levels of income and education making people more likely to participate in activities like church, book club, parent-teacher association, and more. It could be that high-school-educated Christians feel less able to find and connect with a religious community in a broader context of financial strain, family stress, and geographic isolation. Or it could be that college-educated Christians put more of a premium on connecting with their brothers and sisters in the church.
One other data point in the Pew study that supports this theory. Among people who don’t identify with any religion in particular, very few attend religious services every week, regardless of whether they’re educated or not. But 47 percent of high-school-educated people in this group still say religion is “very” or “somewhat” important to them, and 71 percent say they believe in God. Compare that to less than a quarter of their college-educated peers who say religion matters to them, and less than half who say they believe in God. This suggests that at least some of the less educated people identify as religious but don’t have a religious community, while a majority of the more educated people simply aren’t interested in religion at all.
The unwinding of religion in America is a long and complex story, full of fits and starts and many cross currents. Survey data cannot fully tell this story. But occasionally, it can offer a useful snapshot of a certain point in time. That’s what this study offers: a quick impression of the state of religion in the United States, where education makes believers more likely to be active in their communities, not less.
Democrats have become newly divided over reproductive rights as they attempt to decide who they will welcome, and who they will exclude, amid soul searching over how the party should rebuild after its 2016 loss.
Democratic leaders have tried to walk a fine line by emphasizing that the party stands for protecting women’s access to abortion, while signaling that there is still room for Democrats who oppose abortion. It’s not clear, however, whether and to what extent party leaders will tolerate any deviations, in either personal beliefs or policy stands, from full-throated support for the pro-abortion rights party platform.
Senate Minority Leader Chuck Schumer recently said the party is “strongly pro-choice,” but remains a “big tent party,” while House Minority Leader Nancy Pelosi said “of course” it’s possible to be “pro-life” and a Democrat, and have the support of the Democratic Party. Tom Perez, the chair of the Democratic National committee, meanwhile is facing harsh criticism within the party for remarks widely interpreted as saying that Democrats who oppose abortion were not welcome in the party.
The question of where the party stands is a crucial one as Democrats seek to take back Congress and the White House. The American public remains divided on abortion, though a majority believe it should be legal in all or most cases. The Democratic party platform unambiguously states that women have a “right to safe and legal abortion” and promises that the party will oppose and work to overturn “laws and policies that impede a woman’s access to abortion.”
An unequivocal statement from Democratic leaders that everyone in the party must adhere to that agenda would earn support from abortion rights activists, but it could alienate potential voters and Democratic hopefuls running for office in Republican-dominated parts of the country. The result has been a party struggling to clarify its stance.
Perez acknowledged last week that Democrats won’t always be in lockstep on abortion. “If you demand fealty on every single issue, then it’s a challenge,” he said. Yet a few days later, Perez said that Democrats should support the party’s pro-abortion rights stance in a statement interpreted in and out of the party as a reversal from his earlier remarks, and a call for ideological purity on reproductive rights.
“Every Democrat, like every American, should support a woman’s right to make her own choices about her body and her health,” Perez said, adding that “every candidate who runs as a Democrat should” share the “Democratic Party’s position on women’s fundamental rights.”
The DNC’s message on abortion may alienate red state Democrats at a time when the party is trying to expand its reach into conservative parts of the country it may need to win over if it wants to reclaim the White House and Congress. And moderate Democrats representing red states are distancing themselves from Perez’ remarks.
“I couldn’t disagree more with what Tom Perez said, I think it’s not correct that our party should have litmus tests about who wants to join our party,” Democratic Senator Claire McCaskill of Missouri, who has a 100 percent rating from Planned Parenthood Action Fund’s congressional scorecard and represents a state Donald Trump won, said in an interview. “We may disagree on various issues, and I just don’t think we should say ever anyone is not welcome in our party based on one of those issues.”
“What Mr. Perez said makes no sense to me. This is a deeply personal issue, and we should be about respecting one another,” Indiana Democratic Senator Joe Donnelly, who identifies as “pro-life” and has a 60 percent Planned Parenthood rating, said in an interview.
“I don’t know why we would want to start walking away from folks, like myself, who have a personal conviction on the pro-life issue,” Donnelly said. “We ought to be able to include everyone, as opposed to saying ‘no, we don’t want these folks, even though they fight with us on jobs, even though they fight with us for economic rights, even though they fight with us on healthcare.’ It just seems to me to be very, very short-sighted.”
To some extent, progressive Democrats are also divided over whether the party should embrace Democrats even if they have convictions against abortion, or make clear that there’s no place for any lawmaker unwilling to strictly adhere to the Democratic Party platform.
“Pro-life Democrats need to be welcomed into our party,” said Jane Kleeb, the Nebraska Democratic Party Chair and a board member of Our Revolution, the group that formed out of the embers of the Bernie Sanders presidential campaign. Kleeb added that “Tom Perez put every Democrat who is leading our party at the nationwide and statewide level in a very difficult position” by issuing a statement “that is now being interpreted as him saying he does not accept pro-life Democrats in the Party.”
Kleeb, who identifies as pro-choice and progressive, said she was not consulted by Perez before he put out the statement, and called the DNC afterward to register her disappointment. “I think the demonizing of people who are pro-life is deplorable,” she added.
Erin Matson, a self-described progressive Democrat and feminist, had a very different reaction to what Perez had to say, and welcomed his statement.
“It was great to see Perez discover a spine,” she said, though she added that “Schumer and Pelosi’s recent comments are cowardly.” Matson, who works as a reproductive rights advocate based in Virginia, put it this way: “It’s about policy, not feelings or labels, and anything less than a bold stance that makes clear that the Democratic Party must be united in protecting a woman’s right to an abortion is a betrayal of a core constituency of the party.” Spokespeople for Schumer and Pelosi declined to elaborate on their views, though both lawmakers have a 100 percent Planned Parenthood rating.
Perez’s pointed and controversial statement came after abortion rights advocacy organization NARAL Pro-Choice America criticized the DNC last week for what the group called its embrace of an “anti-choice candidate” in response to news that Sanders, one of the most high-profile figures in progressive politics, and Deputy Democratic National Committee Chair Representative Keith Ellison would attend a rally alongside Heath Mello, a self-described “personally pro-life” Democratic mayoral candidate in Nebraska.
NARAL President Ilyse Hogue warned that “if Democrats think the path forward following the 2016 election is to support candidates who substitute their own judgement and ideology for that of their female constituents, they have learned all the wrong lessons and are bound to lose.” Perez’s subsequent comments that every Democrat “should support a woman’s right to make her own choices,” drew quick praise from NARAL. “Women across the country … are breathing a sigh of relief to know that the DNC has our backs,” Hogue said in response.
It’s hard to pin down exactly how far Democratic leaders are willing to go to enforce a pro-abortion rights stance within the party, however. When reached for comment, an aide to Perez said that the DNC Chair doesn’t support a litmus test on abortion, and that he has never said he doesn’t support “pro-life” candidates.
As long as Trump is president, the DNC will face more pressure to define the direction of the party than it would if a Democrat was in the White House. The fact that Democrats lack a clear leader means that mixed messages and competing priorities may lead to confusion over what the party stands for as leaders in Congress, at the DNC, and advocacy groups all attempt to ensure the party does what they want.
Still, the debate over whether Democrats opposed to abortion are welcome in the party may obscure the extent to which there is common ground within the party on reproductive rights.
Sofia Jawed-Wessel, a professor at the University of Nebraska Omaha and a reproductive rights activist who supports the Mello campaign, said in an interview that initial reports characterizing Mello’s record on abortion in national media outlets when news broke that Sanders would appear at a rally with him, and subsequent backlash from reproductive rights groups, created a misleading picture of the candidate.
Mello, she said, may be “personally pro-life,” but the way he has campaigned suggests he is now also “politically pro-choice.” Jawed-Wessel added that the candidate made clear long before the national controversy that erupted last week that he supports Planned Parenthood, and would fight to defend it, and defend women’s access to reproductive health care if elected.
A bill Mello supported in 2009 requiring women to be informed of their right to request a list of ultrasound providers prior to getting an abortion, and which he described as a “positive first step to reducing the number of abortions in Nebraska” has received the most media attention. But while Mello may have legislated based on his “personally pro-life,” convictions in the past, Jawed-Wessel believes that is not how he would govern now. Last week, Mello told The Huffington Post that his Catholic faith informs his personal beliefs, but vowed that he “would never do anything to restrict access to reproductive health care” if elected mayor.
That kind of nuance may get lost when partisans and pundits rush to assign labels like “pro-life” and “pro-choice” to politicians. Prominent Catholic Democrats like Virginia Senator Tim Kaine and former Vice President Joe Biden have also tried to strike a balance between personal conviction and party orthodoxy. “I accept my church’s position on abortion,” Biden said during the 2012 vice presidential debate, “but I refuse to impose it … I just refuse to impose that on others.”
“I think some of this confusion is that people don’t understand that being pro-choice and pro-life are not mutually exclusive. An individual can find abortion morally problematic, but still support a person’s right to choice without government interference,” Jawed-Wessel said.
Not everyone may agree with that assessment, but polling indicates that labels like “pro-choice” and “pro-life” fail to capture the full spectrum of voter sentiment. According to a Vox survey from 2015, 39 percent of Americans don’t identify as only “pro-life” or “pro-choice,” a larger percentage than either the 32 percent of respondents who called themselves “pro-choice” or the 26 percent who described themselves as “pro-life.” A majority of Americans, at 59 percent, support legal abortions, according to Pew Research Center data, despite the fact that 44 percent of Americans say abortion is morally wrong.
That spectrum, and the complexity it creates, makes it more likely that Democrats will end up talking past one another, and that rifts will deepen as a result.
Some reproductive rights advocates feel that Democratic leaders, and Sanders in particular, who has a 100 percent Planned Parenthood rating and championed womens’ rights during his presidential primary, have not done enough to connect reproductive rights to a message of economic populism or articulated that reproductive healthcare, including abortion access, is a prerequisite for economic equality. “Sanders has made it sound like reproductive rights are negotiable. That is wrong, and he will face protest until he includes reproductive justice in his economic justice message,” Matson said.
A spokesman for Sanders pointed to the senator’s recent comments on Face the Nation saying he hopes Mello wins, and will do everything in his power to “see that Republicans do not get away with their horrific effort to defund Planned Parenthood.” When Sanders was asked on MSNBC last month if Democrats should be open to “candidates that may not be rigidly pro-choice,” his answer was “yes.”
A spokesman for Ellison, who also appeared at the Mello rally last week, said that while the congressman “disagrees with Mello’s past positions on abortion rights, Heath has made it clear that as Mayor he will stand up for women’s rights.” In his statement released last week, Perez added that support for “a woman’s right to make her own choices about her body and her health” is “not negotiable and should not change city by city or state by state.”
There’s also tension within the party over whether it should be acceptable for policy makers to talk about abortion as something that should be legal, and freely available, but also minimized. “I think there are a lot of policies and bills that we could talk about that both lift up women’s access to women’s reproductive rights and decrease abortions where Democrats could find common ground,” Kleeb said.
Reproductive rights activists argue, however, that any suggestion that policy should seek to decrease the number of abortions that take place creates harmful social stigma. “There are exactly as many abortions as there need to be,” Matson said. “If anything I worry that people are getting turned away from the care they need because of funding restrictions.”
As for whether any kind of shift is underway on abortion, however, even activists who identify as pro-life and Democrat, aren’t holding out much hope that the party is poised to change its position on abortion anytime soon.
“The Democratic Party has to look in the mirror and say, where did we go wrong? What do we need to do to start winning again?,” Kristen Day, the executive director of Democrats for Life of America, said. “This is one of those issues where the party could expand its coalition. I do have some optimism. The fact that we’re having this discussion at all is important, and potentially an opportunity to create space for pro-life Democrats within the party, but so far it doesn’t seem like that’s the direction the party will take.”
President Trump has backed away from his campaign pledges to “immediately terminate” an Obama-era program shielding undocumented immigrants from deportation. But that doesn’t mean that they aren’t risk of being deported.
More than 750,000 undocumented immigrants have received temporary protection from deportation under the Deferred Action for Childhood Arrivals program created by former President Barack Obama. The program allows undocumented immigrants who were brought to the United States as children to live and work in the United States.
Since Trump took office, the future of the program has been in doubt. In February, as part of the administration's ramping up of immigration-enforcement efforts, the Department of Homeland Security released memos increasing the number of undocumented immigrants prioritized for deportation. The directives include individuals convicted of a crime, charged with a crime but not convicted, and those who have “committed acts that constitute a chargeable criminal offense.”
Meanwhile, Trump has largely stayed mum on the DACA program, raising questions about whether he’ll undo Obama’s executive order and whether DACA recipients are at risk of deportation. The answer appears to be that while he won’t formally rescind DACA, the program’s beneficiaries nevertheless face the possibility of deportation.
Striking a sympathetic tone, Trump recently told the Associated Press that DACA recipients should “rest easy” under his immigration policies, echoing his February statement that he would “deal with DACA with heart.”
Those remarks were a departure from his campaign statements. DHS also left the program intact in directives released this year. Still, that doesn’t necessarily leave DACA recipients off the hook. Attorney General Jeff Sessions told ABC News’ George Stephanopoulos Sunday “everyone that enters the country unlawfully is subject to being deported.”
Indeed, under the program’s original guidelines, recipients can have their DACA status revoked and as a result, be deported. Following the deportation of Juan Manuel Montes, who is reported to be the first DACA recipient removed from the country under the Trump administration, the department released a statement, saying Montes had “lost his DACA status when he left the United States without advance parole on an unknown date prior to his arrest by the U.S. Border Patrol on Feb. 19, 2017.”
DACA recipients are eligible for deportation if they leave the country without receiving advanced permission. U.S. Citizen and Immigration Services requires members to apply for advance parole in order to travel outside of the country, and only allows them to do so if travel fits certain criteria, including humanitarian, educational, or employment purposes.
“If you don’t get this advanced permission, known as advance parole, then by leaving the country you have effectively abandoned your DACA status,” said Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School. “If you return, you are returning illegally and therefore you can be subject to deportation proceedings.”
Deportation relief is not equivalent to legal status, notes Dree Collopy, an immigration lawyer in Washington, D.C. But enforcement action against them was largely avoided under the Obama administration.
“Generally, these people weren’t going to be priorities to begin with. They’re generally going to be younger people who have been here for a long time and have no criminal record,” said John Sandweg, who previously served as the acting director of Immigration and Customs Enforcement. “They’re not somebody we wanted ICE agents to waste time on.” With the finite resources ICE has, the population is not one an administration wants “to waste resources on from an enforcement perspective,” he added.
In 2014, then-DHS Secretary Jeh Johnson announced that the administration would focus on removing undocumented immigrants with criminal records. This would exclude DACA members since to qualify, individuals cannot be “convicted of a felony, a significant misdemeanor, three or more other misdemeanors,” or “pose a threat to national security or public safety.” U.S. Citizen and Immigration Services, which grants DACA status, advises Customs and Border Patrol and ICE to “exercise their discretion on a case-by-case basis to prevent qualifying individuals from being apprehended, placed into removal proceedings, or removed.” DHS Secretary John Kelly has said his agency is not targeting DACA recipients, though some have been arrested in recent weeks.
In February, U.S. immigration officials arrested Daniel Ramirez Medina, a DACA recipient. ICE said Ramirez was detained “based on his admitted gang affiliation and risk to public safety.” His lawyers dispute that. “Mr. Ramirez unequivocally denies being in a gang. While in custody, he was repeatedly pressured by U.S. Immigration and Customs Enforcement agents to falsely admit affiliation. The statement issued tonight by Ms. Richeson of U.S. Immigration and Customs Enforcement is inaccurate,” said Mark Rosenbaum, Ramirez’ attorney, in February. Ramirez was released in late March after posting bond.
While Trump may not have eliminated the program, the “sacrosanct nature of DACA recipients has been diminished,” Sandweg said. There are few known cases of the administration apprehending Dreamers. (About 10, according to United We Dream, an immigration advocacy group that’s been monitoring cases.) But the the arrests of DACA recipients shows that they can no longer count on being spared from deportation.
The distinctive pattern of public reaction to President Trump as he approaches the end of his first 100 days in office is sharpening the choices facing Democrats over the party’s road to recovery.
Though Trump’s agenda has unified Democrats in near-term opposition, clear fault lines have quickly emerged about the party’s long-term strategy to regain power. On one side are those—largely affiliated with Senator Bernie Sanders—arguing for a biting message of economic populism, which is intended largely to recapture working-class white voters that stampeded to Trump in 2016. On the other are party strategists who want Democrats to offer a more centrist economic message, aimed primarily at reassuring white-collar suburbanites drawn to the party mostly around cultural issues.
Sharp public polarization about Trump looms over this debate. As he approaches the 100-day milestone, a wide array of public polls shows that he retains an intense, even visceral, hold on the coalition of older, blue-collar, non-urban and evangelical whites who elected him. In the most dramatic expression of that connection, this week’s ABC/Washington Post poll found that 96 percent of adults who said they voted for him in November do not regret their decision.
But the same surveys also make clear that Trump is facing unprecedented resistance beyond that ardent base. National surveys consistently show his approval rating stuck at around 40 percent. That’s far lower than any other newly elected president at this point. His numbers are especially anemic among Millennials and minorities and far below the usual Republican performance with college-educated whites. Polls also show most Americans oppose many of his key policy initiatives, from building a border wall to repealing former President Barack Obama’s climate-change regulations.
These numbers suggest that Trump, who carried only 46 percent of the national popular vote, faces enormous headwinds in ever building sustained support from a majority of Americans. Indeed, he’s the only newly elected president in Gallup’s polling—since it started tracking presidents during the Truman era—who never reached 50 percent job approval in his first 100 days. Absent a perception-reshaping performance in a major crisis, Trump is likely to operate as, at best, a plurality president.
The Democrats’ post-election debate has mostly focused on how the party can win back blue-collar and older whites who defected from Obama in 2012 to Trump, particularly in the Midwest. But given Trump’s inability to expand his support, the more relevant question may be how Democrats can consolidate the roughly 55 percent of Americans who have consistently expressed unease about him. That question points the party away from Trump’s working-class base toward those white-collar whites (especially women), minorities, and Millennials expressing the most discomfort about his performance, qualifications, and agenda.
Whenever a political party faces an “either/or” choice, the right response is almost always: “both/and.” This Democratic crossroads is no exception. Geographically that means the party, in the races for both Congress and the White House, must regain ground in the working-class Rustbelt states where Trump outperformed other recent GOP nominees and the more diverse, younger Sunbelt states where he slipped. “In the long term, the future for the Democratic Party is Florida, Arizona, Georgia, eventually Texas ... and maybe Ohio goes the other way [toward Republicans],” said Democratic pollster Andrew Baumann. “But given the map for 2018, and even 2020, I think relying on just that and not fighting in those Midwest states is a mistake.”
Yet even while Democrats acknowledge the need to contest both fronts, they face genuine choices about where to place their largest bets. Matt Bennett, senior vice president at the centrist Democratic group Third Way, said the party’s principal opportunity is with white-collar suburbanites alienated from Trump. He points to the previously solidly Republican House district in suburban Atlanta where neophyte Jon Ossoff faces a June runoff election, after approaching 50 percent in a recent primary. “The obvious opportunity is in places like Ossoff’s district,” Bennett said. Those places “can deliver majorities [for Democrats] in the House and Senate and … the White House if we have a message that really lands.”
The Sanders camp envisions a very different road map. Ben Tulchin, Sanders’s 2016 pollster, said Democrats are less likely to recover by trying to court ordinarily Republican-leaning, college-educated suburbanites than by energizing Millennials and recapturing working-class whites with Sanders-style economics. “Its much harder to win over someone who votes Republican consistently than someone who voted for Obama twice and voted for Trump once as an FU to the system,” Tulchin said. Sanders, tellingly, has mustered only minimal enthusiasm for Ossoff, who’s run a centrist, if not bland, campaign.
The risk in Sanders’s approach is that higher-octane economic populism may fail to dislodge Trump’s hold on working-class whites, while simultaneously alienating white-collar whites that Trump is otherwise driving away from the GOP. In 2018, Democrats can straddle this divide by nominating edgy populists in blue-collar districts and reassuring centrists in white-collar ones. But the choice looms much larger for 2020.
Any Democratic nominee will need to do better than Hillary Clinton at motivating the minorities and Millennials most hostile to Trump. But beyond that, the party’s next presidential primary could diverge between populists best suited to reconstruct a blue-collar coalition (think Senators Sherrod Brown or Elizabeth Warren) or choices more acceptable to white-collar suburbanites (perhaps Senators Cory Booker or Mark Warner). With Trump still connecting so deeply with much of working-class white America, despite all his administration’s upheavals, a strategy centered on rallying white-collar, younger, and diverse voters might seem the path of least resistance for Democrats in upcoming elections. But that, of course, is what Hillary Clinton also thought in 2016.
On the day after Donald Trump was inaugurated, perhaps 3 million Americans took to the streets in peaceful protest to register their opposition. When news of his travel ban broke, I stood at LAX watching Angelenos sing the Star Spangled Banner and Amazing Grace. Across the nation, peaceful protest against President Trump continues. But a violent fringe has been using Trump’s rise as a justification for political violence, as if his authoritarian impulses justify authoritarianism from his opponents.
This tiny faction knows that most of their compatriots on the left are committed to nonviolence, so they frame their aggressive actions as a narrow exception to the rule.
Most famously, they insisted that it was okay, or even righteous, to punch white supremacist Richard Spencer because he was “a Nazi.” That position impels the debate down a slippery slope. And now, activists in Oregon caused the cancellation of the 82nd Avenue of Roses Parade, a community event in the southeast quadrant of Portland, by threatening to forcibly drag “fascists” off the parade route if they weren’t excluded.
Who exactly did they want removed from the parade? The local Republican Party of Multonomah County. The Oregonian reports on the threat the leftists sent to organizers:
"You have seen how much power we have downtown and that the police cannot stop us from shutting down roads so please consider your decision wisely," the anonymous email said, telling organizers they could cancel the Republican group's registration or else face action from protesters.
The email went on to speculate that right-wing extremists would march among the Republicans, and warned, “we will have two hundred or more people rush into the parade into the middle and drag and push those people out as we will not give one inch to groups who espouse hatred toward lgbt, immigrants, people of color or others.”
A local alt-weekly quoted from a Facebook event page describing a perhaps different planned protest––its authors say that they did not send the threatening email––which stated:
The fascists know that we'll keep shutting their marches down, they are now planning to march within other parades to protect their message of hate and white supremacy - it WON'T work. Nazis will not march through Portland.
The group we're disrupting is #67. It is registered to the Multnomah County Republicans, but these infiltrators are the same folks from Lake Oswego, Salem, Vancouver, and even Berkeley. These are the folks that attacked a woman at PDX, they harassed Latinx parishioners with slurs and threats at a local church, they spew hate, threaten and curse young women at women's health clinics. They seek to intimidate and harass our Latinx, Muslim and LGBTQ+ neighbors and friends. Their Trump flags, their red MAGA hats and their hate group badges are all intended to normalize support for an orange man who bragged about sexually harassing women and who is waging a war of hate, racism and prejudice against our Muslim, Latinx, Black and Native neighbors. They will attempt to march from the Eastport Plaza to Yamhill, but nazis will not march through our city.
If you missed that, one reason these protesters cite as justification for stopping Republicans on a parade route is that they will otherwise “normalize support” for a sitting president.
Organizers caved. “Following threats of violence during the Parade by multiple groups planning to demonstrate at the event, we can no longer guarantee the safety of our community and have made the difficult decision to cancel the Parade,” they stated.
The local GOP put out its own statement. It reads in part:
The Multnomah County Republican Party (MCRP) has for many years participated in the Parade, and calls upon the Mayor, the Police Chief, and the District Attorney to take action against this criminal conspiracy to commit crimes of riot and disorderly conduct in violation of Oregon law.
Under former Mayor Charlie Hales the City allowed this cancer of lawlessness to grow to the point where its leaders are now bragging, like some sort of comic book characters, that ‘the police cannot stop us’. But this is no laughing matter. The participation of political parties in public events like the Parade is not only an American tradition, but also reflects the most fundamental constitutional rights of free speech and freedom of assembly.
The road to fascism begins with armed gangs of thugs using violence to shut down opposing points of view. The question now is whether the City of Portland will be complicit in such conduct. We hope the City’s new leadership has the courage to respond to these threats appropriately.
So long as threats of violence succeed in causing events to get shut down by their risk-averse organizers, more threats will be made. One wonders who this faction on the left will next label a Nazi or a fascist in order to justify their own use of fascistic tactics.
The White House is preparing an executive order formally withdrawing the United States from the North American Free Trade Agreement, according to media reports. President Trump revealed a one-page plan to overhaul the tax code that would reduce rates for businesses and individuals. All 100 U.S. senators visited the White House for a classified briefing on North Korea’s nuclear capabilities and U.S. response options. Trump misidentified the court that blocked his executive order withholding funding for so-called “sanctuary cities.” The House Freedom Caucus said it supports a Republican health-care plan that would allow states to apply to opt out of several Obamacare regulations.
Divide and Conquer: Since Donald Trump’s election, congressional Democrats have worked to drive a wedge between the president and GOP lawmakers. Here’s how Trump’s demands for border-wall funding may help the Democrats further divide Republicans. (Michelle Cottle)
Just the Beginning: The United States is not the only country concerned about possible Russian hacking. Democracies around the world—including Denmark, France, and the Netherlands—are taking precautions against state-sponsored interference. (Uri Friedman)
Sink or Swim: For years, moderate Republicans have been looking for a way to assert their power. They may finally get a chance as the party leans on them to back a newly proposed amendment to its Obamacare replacement bill. (Russell Berman)
Follow stories throughout the day with our Politics & Policy portal.
We’re Exempt: Republicans are mulling a new amendment to their health-care bill that would allow states to opt out of some Obamacare rules. While conservative lawmakers support the amendment, they don’t “seem to like it enough to have it apply to themselves and their staff.” (Sarah Kliff, Vox)
‘Young Populists’: Populist messages from political candidates in France and the U.S. “seem to captivate the younger generation,” writes Kristen Soltis Anderson. Clearly, the case for free trade and globalism hasn’t been successfully made to young people. (Washington Examiner)
The Swamp Is Winning: Despite his promises to “drain the swamp,” President Trump owes some of his first big accomplishments, like the confirmation of Neil Gorsuch to the U.S. Supreme Court, to insider politics. (Ben Smith, BuzzFeed)
‘Reverend Resistance’: Reverend William Barber II, a North Carolina preacher, has a mission to take on Donald Trump. He gained national prominence last year after giving a powerful speech at the Democratic National Convention. Could he be the leader the Trump opposition movement needs? (Tommy Tomlinson, Esquire)
Trudeau Weighs In on Trump: Bloomberg spoke with Canadian Prime Minister Justin Trudeau about the rise of Donald Trump and the future of trade with the United States. “I’ve learned that [Trump] listens,” Trudeau said. “He is a little bit unlike many politicians. That might be enough.” (John Micklethwait)
‘Did Trump Do That?’: Test your knowledge of President Trump’s first 100 days in office with this quiz. (Priya Krishnakumar, The Los Angeles Times)
The White House Correspondents’ Dinner has been a D.C. tradition since 1921, with journalists and administration officials coming together once a year to eat, drink, and roast the current president. President Trump won’t be attending this year’s dinner, which takes place on Saturday, but he did attend the dinner in 2011, when then-President Obama made a few jokes at Trump’s expense.
What jokes or moments stand out to you from past dinners?
Send your answers to firstname.lastname@example.org and our favorites will be featured in Friday’s Politics & Policy Daily.
Michael Flynn’s troubles keep getting worse. On Tuesday, the chairman and ranking member of the House Oversight Committee said that the former national security adviser had likely broken the law by failing to seek permission to receive, and failing to disclose payments he received, from Russia and Turkey.
“I see no data to support the notion that General Flynn complied with the law,” Jason Chaffetz, the Republican chair of the committee, said after a briefing on Tuesday. (Chaffetz recently announced he will leave Congress.) “As a former military officer, you simply cannot take money from Russia, Turkey, or anybody else. And it appears as if he did take that money. It was inappropriate.”
The payments in question involve two matters. One was a 2015 trip to Russia, which was reportedly paid for by the Kremlin-owned network RT, and during which Flynn attended a dinner with Russian President Vladimir Putin. The other was a lobbying contract on behalf of the Turkish government, which ended around the time Flynn was appointed Trump’s national security adviser in November. Flynn belatedly filed documents in March acknowledging that his work in that contract, which went through a Dutch company, was lobbying for Turkey.
Aside from the question of registering as a lobbyist, Chaffetz and Democratic counterpart Elijah Cummings are focused on whether Flynn sought the required permission to receive moneys in either case, and whether he declared them as required. Cummings said Tuesday that Flynn did not mention the Russian travel on a required form renewing his security clearance in January 2016—only about a month after his trip. Cummings said he wished to declassify as many materials as possible in the case, and Chaffetz said that if the money was inappropriately received, it would have to be recovered from Flynn.
If Flynn did fail to seek permission or to declare receipts, it would be a crime. That might help explain why Flynn’s lawyer has reportedly reached out to some of the bodies investigating him as well as ties between the Russian government and Trump campaign, offering immunity in exchange for testimony.
Flynn was fired in February, after it became clear that he had lied to Vice President Pence and to others about his conversations with Russian Ambassador Sergei Kislyak. Flynn denied having discussed sanctions against Russia prior to inauguration day, but intelligence intercepts provided to the White House by the Department of Justice showed otherwise.
Donald Trump entered the White House as one of the most scandal-tarred presidents in American history—what his imbroglios may have lacked in depth, they made up in variety, encompassing legal, ethical, and sexual controversies. (In a twist, one of Trump’s few competitors for the crown was his rival, Hillary Clinton.) They ranged from race discrimination to mafia connections, from petty hypocrisies to multimillion-dollar alleged frauds.
Now that Trump is president, some of those controversies have continued to shadow him. But the presidency has also occasioned a whole new set of disputes. Looming largest is the question of whether his campaign colluded with Russian agents to interfere in the election, a question being investigated by the FBI as well as panels in both houses of Congress. They also include ethical and legal questions surrounding members of his cabinet, his allegation that Barack Obama spied on him before the election, and various conflicts of interest.
In the spirit of our logs of Clinton and Trump scandals during the presidential campaign, this article will track those controversies, sorting out the legal, ethical, and moral questions and separating the facts from the fury. The list will be updated regularly as there are new developments.
Who: Flynn, a retired three-star general and Trump’s first national security adviser
The dirt: Flynn cut a controversial figure on the campaign trail as an outspoken Trump surrogate. On November 17, shortly after Trump was elected, Flynn was named his national security adviser. Problems soon emerged. His son had to be fired for spreading bizarre, baseless conspiracy theories. There were also reports that Flynn had spoken with Russian Ambassador Sergei Kislyak prior to Trump’s inauguration about sanctions on Moscow, which Flynn denied. On April 25, the leaders of the House Oversight Committee said they believed Flynn had failed to seek permission to receive money from the Russian and Turkish governments in 2015 and 2016, and omitted some of them from required disclosures.
The upshot: Flynn was fired on February 13, after it became clear he had lied to Vice President Pence about his conversations with Kislyak. However, Trump reportedly knew about those lies as early as January 26, raising questions about why Flynn’s firing took so long. More questions have emerged since, especially with Flynn’s disclosure that he lobbied for the Turkish government without declaring it prior to his White House appointment. If Flynn failed to seek permission for payments from Russia and Turkey, and to disclose it, he would have committed a crime. More details about Flynn are expected: Through a lawyer, Flynn—who in 2016 said that someone who asks for immunity has probably committed a crime—has reportedly reached out to various investigative bodies to offer immunity in exchange for testimony. So far, no one is known to have granted it.
Who: Paul Manafort, former Trump campaign chair; Michael Flynn, former national security adviser; Carter Page, former Trump adviser; unknown others
The dirt: The fact of Russian interference in the election to hurt Hillary Clinton and aid Trump is the subject of consensus in the U.S. government, but whether there were connections between the Trump campaign and those efforts remains unknown. The most explosive allegations were laid out in the infamous unconfirmed dossier a former British intelligence officer prepared. FBI Director James Comey said on March 20 that his agency is “investigating the nature of any links between individuals associated with the Trump campaign and the Russian government, and whether there was any coordination between the campaign and Russia’s efforts.” The Senate and House intelligence committees are also both investigating. Attorney General Jeff Sessions was forced to recuse himself from any investigations after admitting he had not disclosed to Congress meetings with the Russian ambassador. Democrats have argued that Sessions lied under oath by doing so. On April 11, The Washington Post revealed that the FBI sought and received a warrant to Carter Page on suspicion of being a foreign agents. Paul Manafort is also the subject of several inquiries, and reports have pointed to mysterious millions flowing his way; he may register retroactively as a foreign agent under federal law.
The upshot: Who knows? If Trump aides conspired with a foreign power to influence the election, it would be the biggest political scandal since Watergate. If Trump himself were involved or compromised, as the darkest liberal observers suggest, it would be a scandal without precedent in American history. Adam Schiff, the Democratic ranking member of the House Intelligence Committee, says he has seen “more than circumstantial” evidence of collusion, while Representative Joaquín Castro says he thinks people will go to jail. At the moment, however, there’s minimal public evidence to go on, so the whole thing might very well turn out to be mere innuendo.
Who: Donald Trump; former President Barack Obama; Fox News analyst Andrew Napolitano; conservative pundit Mark Levin; Breitbart author Joel Pollak
The dirt: On March 4, Trump tweeted that Obama “had my ‘wires tapped’ in Trump Tower just before the victory,” calling it “McCarthyism” and “Nixon/Watergate.” There is no evidence to support Trump’s claim, and FBI Director James Comey said under oath that it was not true. It appears that Trump made his claim based on speculation from Andrew Napolitano on Fox News, Mark Levin’s radio show, and a Breitbart piece by Pollak based on the Levin segment. Despite demanding a congressional investigation, the White House has still not produced any evidence. Trump has tried to change the nature of his claim, first saying he merely meant “surveillance” broadly. Later, after the White House claimed (again, with no clear evidence) that Obama National Security Adviser Susan Rice had improperly asked that the names of Trump aides be listed in intelligence reports, Trump claimed, falsely, that he’d been referring to this “unmasking.”
The upshot: The debate over Trump’s apparently entirely fictitious claim has now spread out over weeks, sucking in congressional investigations and the FBI. Trump’s refusal to back off his claim has produced a range of peculiar outcomes. Devin Nunes, the chair of the House Intelligence Committee, has been forced to recuse himself from an investigation. The Trump administration set off a brief feud with GCHQ, the British intelligence agency, for claiming the U.K. did the bugging for the Obama administration. The president also made a bizarre, awkward joke about prior surveillance of Angela Merkel during a press conference with the German chancellor. If President Obama did engage in politically motivated spying, it would be Nixonian, but at the moment there’s simply no evidence for that at all, while Trump’s phantom allegations suck up oxygen.
Who: Devin Nunes, chair of the House Intelligence Committee and a Trump transition team member; Ezra Cohen-Watnick and Michael Ellis, White House staffers; Susan Rice, Obama national security adviser
The dirt: On March 22, Nunes, a California Republican, announced he had received mysterious report suggesting vague, inappropriate conduct by Obama administration officials—that Trump transition-team members had been “incidentally collected,” or swept up in surveillance of intelligence targets. When Americans who are not the targets of surveillance are collected this way, their names are redacted, but can be revealed, or “unmasked,” to some top officials at their request. Though Nunes said the surveillance was lawful, he alleged that the Trump officials’ names had been improperly unmasked. Nunes would not say how he obtained the information, did not share it with members of his committee, and rushed to brief the president. A later report from Bloomberg View had Trump officials claiming Susan Rice had requested questionable unmasking.
The upshot: Nunes’s refusal to share his information resulted in acrimony with his Democratic counterpart. Meanwhile, the congressman’s account developed a series of inconsistencies and holes, both in substance and in process. Although he insisted he had not received his information from the Trump administration, it became clear that his source was within the White House. Nunes was eventually forced to recuse himself from the House investigation into Russian interference in the election. Rice has denied wrongdoing, and no further evidence that she improperly unmasked anyone has emerged—in fact, some reports suggest just the opposite.
Who: Donald Trump; Ivanka Trump; Donald Trump Jr.; Eric Trump; Kellyanne Conway, counselor to the president
The dirt: Donald Trump has still not offered an adequate plan for addressing conflicts of interest between his business. The president said that he would step away from the Trump Organization, as would his daughter Ivanka, while his sons Donald and Eric ran the business. His faux-blind trust was criticized by ethics observers across the political spectrum, and Eric has suggested in interviews that the division is even more porous than it initially appeared. Ethicists say Trump is in violation of the Constitution’s Emoluments Clause, because foreign leaders can funnel money to the president by staying in his hotels. Separately, Trump counselor Kellyanne Conway broke ethics rules by encouraging people to purchase Ivanka Trump merchandise after Nordstrom announced it would drop her line of clothing. (Despite President Trump’s promise that Ivanka was not joining the White House, she has since taken a job in the West Wing.)
The upshot: The General Services Administration ruled that Trump was not violating the lease on a hotel in D.C., despite a clause saying no government official can be party to the contract. At least one pending lawsuit seeks to have Trump ruled in violation of the Emoluments Cause. The Office of Government Ethics ruled that Conway had broken rules on endorsements and recommended that she be fired, but the White House rejected the recommendation, and OGE has no authority to levy its own punishment. After public outcry, the State Department deleted a blog post promoting Mar-A-Lago, Trump’s Florida estate.
Who: Marcus Peacock, former budget adviser; Scott Gottlieb, nominee for FDA commissioner; Michael Catanzaro, energy adviser; Chad Wolf, TSA official; Geoff Burr, Labor Department official
The dirt: During the campaign, Trump promised to “drain the swamp,” proposing a range of rules to limit the revolving door between government and business. Trump’s actions since taking office have been a mixed bag, strengthening some rules and weakening others. (This is not unprecedented—Barack Obama also ended up loosening his own rules.) There are already several worrying case of people moving between the government and major lobbies in both directions.
The upshot: Because the Office of Government Ethics has no independent authority to punish violations, most of the onus is on the White House to enforce its own rules. In several of these cases, it appears that Trump administration officials may be in violation of the president’s rules or other existing rules, but it’s very difficult to know for sure. The administration could grant waivers to officials to circumvent rules, but unlike the Obama administration, the Trump administration is not making those waivers public. Of course, the presence of waivers raises its own questions about the efficacy and spirit of the White House’s ethics rules.
Who: Tom Price, secretary of health and human services
The dirt: Price, a doctor by profession, was previously a U.S. representative from Georgia. In 2012, after a series of revelations about members of Congress profiting by trading stocks with inside information about regulation and legislation, the STOCK Act barred trading on non-public information. Price traded more than $300,000 worth of stock in health companies affected by bills he sponsored or argued for. The largest was an investment of $50,000 to $100,000 in an Australian company called Innate Immunotherapeutics, whose largest shareholder is Representative Chris Collins of New York, a close Trump ally. The stock later doubled in price. During confirmation hearings, Price claimed to have received no special information, but The Wall Street Journal found that Price had actually received a privileged offer to buy. ProPublica also reported that Price also bought $90,000 in drug companies the same day he intervened to kill a rule that would have cut into their profits.
The upshot: The allegations against Price, if proven, could be very serious, as he could have violated federal law. Democrats have asked that the Securities and Exchange Commission investigate Price. When Preet Bharara, the U.S. attorney for Manhattan was unexpectedly fired in March, he had been conducting an investigation into Price’s trades, ProPublica reported. Price denies wrongdoing and says trades were made by his broker without his knowledge.
Who: Donald Trump
The dirt: The president faces a lawsuit from three people who allege they were roughed up at a campaign rally in Louisville, Kentucky, in March 2016. They blame Trump for inciting violence by saying, “Get ’em out of here.” He has also been sued in Alabama in a similar case.
The upshot: Trump has offered two defenses in Kentucky. First, he says he was not instructing the crowd, though another defendant, accused of conducting an assault, says he was acting because of the candidate’s statement. (A white nationalist leader has actually sued Trump, saying he assaulted a woman at the candidate’s behest.) Second, Trump says that as president he is immune to civil suits. Trump has also claimed that he has presidential immunity from a sexual-harassment case filed by a former Apprentice contestant.
A federal district court in California on Tuesday blocked the Trump administration from enforcing part of a January executive order to defund “sanctuary cities,” ruling that the directive likely exceeded federal law and unfairly targeted those jurisdictions.
“Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration-enforcement strategy of which the president disapproves,” federal judge William Orrick wrote.
The preliminary injunction blocks the federal government from enforcing Section 9(a) of the executive order nationwide while legal proceedings continue. That section authorized the attorney general to “take appropriate enforcement action” against “sanctuary jurisdictions” that “willfully refuse to comply” with Section 1373, a provision in federal immigration law that bars local jurisdictions from refusing to provide immigration-status information to federal agents.
Orrick determined, however, that Section 9(a)’s broad language, coupled with the new restrictions, likely went beyond what was authorized by federal law. “The order’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation-of-powers principles,” he concluded.
Tuesday’s judicial rebuke is also a blow to President Trump’s defense of his administration as it nears the 100-day mark on Saturday. With no major legislative accomplishments to offer the public, the White House has instead pointed to the flurry of executive orders signed by Trump as evidence of his success. This particular order, signed by Trump five days after taking office on January 20, aimed to fulfill his campaign pledges to crack down on illegal immigration and those sanctuary cities, a catch-all term for jurisdictions that don’t cooperate with federal immigration agencies.
Santa Clara County and the city of San Francisco sued the Trump administration soon thereafter, alleging that the order went beyond what Section 1373 authorized. The jurisdictions also argued the new defunding provisions violated the Fifth Amendment’s due-process protections and the Tenth Amendment’s ban on federal commandeering of state powers. At stake for both the city and the county is federal funding, amounting to roughly $1.2 billion of San Francisco’s $9.6 budget and about 35 percent of Santa Clara’s total budget. Orrick noted the executive order “has caused budget uncertainty by threatening to deprive the counties of hundreds of millions of dollars in federal grants that support core services in their jurisdictions.”
In his ruling, Orrick noted the Justice Department tried to defend the executive order during oral arguments by offering a narrow interpretation of it. But the judge indicated he was unconvinced. “The government attempts to read out all of Section 9(a)’s unconstitutional directives to render it an ominous, misleading, and ultimately toothless threat,” he wrote. “It urges that Section 9(a) can be saved by reading the defunding provision narrowly and ‘consistent with law,’ so that all it does is direct the attorney general and [the homeland security] secretary to enforce existing grant conditions. But this interpretation is in conflict with the order’s express language and is plainly not what the order says.”
The Justice Department’s woes did not end there. Compounding their difficulties in defending the executive order were a series of public statements by Trump, White House Press Secretary Sean Spicer, and Attorney General Jeff Sessions, which Orrick cited as evidence the federal government intended to broadly enforce the order.
“The president has called it ‘a weapon’ to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary has reiterated that the president intends to ensure that ‘counties and other institutions that remain sanctuary cities don’t get federal government funding in compliance with the executive order,’” he wrote. “The attorney general has warned that jurisdictions that do not comply with Section 1373 would suffer ‘withholding grants, termination of grants, and disbarment or ineligibility for future grants,’ and the ‘claw back’ of any funds previously awarded.”
Shortly after the order’s release in January, my colleague Garrett Epps presciently noted a legal irony: Section 9(a)’s broad restrictions for local jurisdictions that defy federal immigration policy appeared to clash with two landmark U.S. Supreme Court rulings, Printz v. United States and National Federation of Independent v. Sebelius. Taken together, the two decisions constrain the federal government’s power to coerce or compel state and local governments. Both rulings, Garrett pointed out, were also major victories for the conservative legal movement.
Orrick cited both rulings to justify blocking the order’s enforcement on federalism grounds. “The executive order attempts to use coercive methods to circumvent the Tenth Amendment’s direct prohibition against conscription,” he wrote. “While the federal government may incentivize states to adopt federal programs voluntarily, it cannot use means that are so coercive as to compel their compliance.” He also criticized the absence of a mechanism for local jurisdictions to challenge or appeal the loss of federal funding, concluding that the “complete lack of process violates the Fifth Amendment’s due-process requirements.”
Local officials in both jurisdictions praised the ruling. “We’re fighting for the United States Constitution and we succeeded after the Trump administration tried to do an end run around it,” Santa Clara County Supervisor Cindy Chavez said in a statement. Further north, San Francisco City Attorney Dennis Herrera echoed those themes. “Faced with the law, the Trump administration backed down,” he said in a statement. “This is why we have courts—to halt the overreach of a president and an attorney general who either don’t understand the Constitution or chose to ignore it.”
In response to the ruling, the Justice Department noted Orrick limited his injunction to the executive order, not the underlying federal statute. “Accordingly, the department will continue to enforce existing grant conditions and will continue to enforce 8 U.S.C. 1373,” a spokesman said in a statement. “Further, the order does not purport to enjoin the department’s independent legal authority to enforce the requirements of federal law applicable to communities that violate federal immigration law or federal grant conditions.”
The Trump administration’s next legal step would be to appeal Orrick’s ruling to the Ninth Circuit Court of Appeals. It’s a familiar arena for the president: a three-judge panel blocked him from enforcing the first iteration of his controversial travel ban in February, and the entire court will weigh the constitutionality of the second version on May 15.
“I am the king of debt,” Donald Trump famously boasted during last year’s campaign. On Wednesday, the president is going to set about proving it—but perhaps not in the way he originally meant.
All indications are that the tax plan the White House is slated to unveil will include what Trump has described as a “massive” cut in the rate that corporations and many small businesses pay to the government. But it will omit the more politically painful choices that Republicans would need to make to offset the corresponding loss of revenue, such as House Speaker Paul Ryan’s proposed tax on imports or the elimination of popular deductions for charitable giving and homeowners. The result is a tax plan that, like the ones Trump offered as a candidate, could add trillions of dollars to the national debt. You can call them tax cuts, but they aren’t tax reform.
In pursuing the cuts-only approach favored by supply-side economic conservatives, Trump is forgoing—at least for the moment—the more ambitious overhaul of both the corporate and individual tax code that Republicans like Ryan have been pursuing for years. That would take months, if not years, more to complete, and the president plainly does not want to wait. He caught both Republican lawmakers and, reportedly, his own staff off-guard by announcing that the White House would unveil some sort of tax plan this week, ahead of the 100-day marker of his presidency. What Trump will actually release might be little more than a sheet of paper with some broad principles, much less a detailed legislative proposal. It’s the Cliffs Notes version of a tax plan, which will make for a clean headline and is simpler to explain to voters than a proposal with the inherent winners and losers that a broader reform package would create.
Choosing the simpler path is a familiar move for Trump, and so is picking a policy that places deficit reduction far behind his other priorities. While the president has at times talked about tackling—and even pledged to eliminate—the nation’s nearly $20 trillion debt, he has campaigned and governed as a bigger-government conservative. He’s called for up to $1 trillion in new infrastructure spending, proposed a $30 billion increase in the military budget, and wants to build a wall along the southern border that could cost billions more. Trump’s initial budget proposal called for steep cuts to domestic programs to pay for some of the increased spending elsewhere, but it notably omitted any effort at restraining the entitlement programs eyed by Republicans as the main drivers of long-term deficits. When Trump called himself “the king of debt” in a CBS interview last year, he was referring to how he used strategic borrowing in the operation of his businesses. But he’s resorting to a similar approach to run the government as well.
“The Trump campaign proposed two revenue-decreasing tax plans during the campaign. It should not be so surprising if they also propose a net tax cut once in the White House,” said Scott Greenberg, an analyst with the Tax Foundation, which projected that the Trump campaign’s final tax plan would have increased deficits by as much as $5.9 trillion.
The president’s outline is likely to win some fans among Republicans in Congress, but it will cause conflict with others. In the House, GOP leaders have been writing a tax bill that would not add to the deficit under the formula the party uses to estimate its impact on the budget (calculations that Democrats vigorously dispute). That’s a major reason why Ryan has been pushing for a “border adjustment tax” designed to offset an estimated $1 trillion in rate reductions over a decade.
But with that plan facing bipartisan opposition and with the GOP health-care bill stalled, conservative economists have been pushing the party to advance a tax proposal that would be politically easier and, in their view, more quickly stimulate economic growth. They’re advancing the theory popularized under former President Ronald Reagan that lower taxes will generate more economic activity and thereby lead to more revenue for the government from a broader base of taxpayers. Adopting that view, the White House has decided to go big on rate cuts. According to The Wall Street Journal, the proposal will call for a 15 percent tax rate both for corporations—down from 35 percent—and for smaller businesses in which the owners currently pay the highest individual rate of 39.6 percent. “The tax plan will pay for itself with economic growth,” Treasury Secretary Steven Mnuchin told reporters on Monday.
Yet even the most ardent supply-side advocates don’t believe a cut that deep will refill the government’s coffers through economic growth alone. Their argument is that the deficit concerns are less important than the need to jolt the economy, which has been growing at a modest rate of around 2 percent or less for the last several years. “I’m not saying that cutting the corporate rate from 35 [percent] to 15 [percent] is going to pay for itself,” Stephen Moore, a conservative economist who advised Trump during the campaign, told me on Tuesday. “It may. It may not. I’m just saying that if we can get more growth from it, do it. And if that means you’re going to have a higher deficit, so what? It’s worth it to get more growth.”
After years of belt-tightening that congressional Republicans forced on former President Barack Obama, the assumption that deficits are automatically bad has taken a hit with politicians in both parties. Progressives have called for a new round of government spending to boost jobs and reduce income inequality, while conservatives argue for business-oriented tax cuts at the expense of the federal balance sheet. But the loosening fiscal policy of the last couple of years has alarmed those who believe the debt remains a long-term threat to economic stability. “If this tax reform is not paid for, it is backwards and disappointing. Tax reform is supposed to be done to create economic growth, not paid for by economic growth,” said Maya MacGuineas, president of the Committee for a Responsible Federal Budget. She argued that the negative impact of a rising national debt, including the risk of higher interest rates, would undercut the very economic growth Republicans claim to want. “This is maybe politically expedient, but it will be economically damaging and a real lost opportunity for the growth agenda we need to be pursuing,” she told me.
Moore, along with fellow supply-siders Steve Forbes, Larry Kudlow, and Art Laffer, published an op-ed in The New York Times last week urging the president to “keep it simple” and prioritize a tax cut over a broader overhaul. Trump appears to be taking their advice. The latest reports suggest that in addition to the overall rate cuts, the White House will seek to offer corporations a discount rate to “repatriate” profits held off-shore so it can use the revenue for infrastructure—a plan designed to attract Democratic support. The proposal could also contain a childcare tax credit sought by Ivanka Trump.
But the plan’s overall price tag could be a hinderance both politically and procedurally. Democrats are unlikely to back unpaid-for tax cuts for corporations and the wealthy no matter how much money for infrastructure is included. That will force Republicans to try to pass a bill through the budget reconciliation process—as they tried to do with health care—that would circumvent a filibuster in the Senate and require only a simple-majority vote. But the budget rules forbid legislation advanced through reconciliation to add to the debt over the long term, so Republicans might have to make their tax cuts temporary and expire after 10 years, which is what they did under former President George W. Bush 15 years ago.
Even with that fine print, Trump’s pain-free plan likely would be easier to pass than a far more complicated overhaul that raises taxes on some industries and cuts them for others. As they have before, Republicans will argue that they’re returning money to the people in service of a brighter economy. All they have to stomach is higher short-term deficits, and for the president, that’s no obstacle at all.
Mock Donald Trump’s legislative ignorance if you will, but for a brief, shining stretch during the past week, he managed to bring about a rare Washington phenomenon: House and Senate Democrats saying nice things about their GOP
counterparts. Publicly. With straight faces. That the president accomplished this entirely by accident makes the feat no less remarkable.
It has been like a scene straight out of a No Labels kumbaya, centrist fantasy: As Congress hammers out a deal to fund the government for the rest of this fiscal year, Democrats have been lauding Republicans for handling negotiations in a thoughtful, productive, bipartisan manner.
“Appropriators are all about getting something done,” a senior Democratic House aide noted approvingly of the process. And with the April 28 deadline looming, he told me, members of both teams “had been chugging along, making progress, doing a really good job of getting past some riders.”
But then, say Democrats, chaos erupted. Up popped President Trump, demanding billions for his border wall, threatening sanctuary cities, clamoring for a quickie health care vote, and generally screwing things up by sticking his big orange nose into delicate Hill business.
“Before, the parties were negotiating quite well until Donald Trump and the White House threw a monkey wrench into it,” Senate minority leader Chuck Schumer told reporters on a conference call Monday morning. “If the president stepped out of it, we could get a budget done by Friday.”
Call co-host Nancy Pelosi, the House minority leader, proffered a similar take: “I know appropriators try very hard to work in a bipartisan way, and that was the path that we were on until the president intervened.”
Thanks to Trump’s ham-fisted meddling, charge Democrats, the budget talks have gone from civilized and low-key to, as the House aide put it, utterly “whackadoo.”
Now, shrewd students of Congress may be inclined to point out that the budgeting process never runs smoothly. And the notion that, in the current political climate, negotiations would have continued chugging along until a bipartisan agreement was amicably reached is, well, whackadoo. (If nothing else, sticky issues tend to get kicked to the end of the process, and it’s when appropriators hand the bill off to leadership that things often turn ugly.)
From a messaging standpoint, however, Dems’ blaming Trump for poisoning the well of this budget battle is a no-brainer.
“This is one of the oldest plays in the playbook,” said Jim Manley, a former Senate aide to Democratic leadership. “What Democrats are trying to do here is drive a wedge between House and Senate Republicans and the White House.”
“He is the head of the party, whether the Rs like it or not,” a former House leadership staffer emailed me. “And he is the most unpopular President at the 100-day mark of any president in modern times, so of course Dems will lay this at his doorstep.”
Ironically, since before Trump was even sworn in, congressional Democrats have been saying that their strategy would be to look for ways to drive a wedge between the president and GOP lawmakers—though in precisely the opposite direction. Dems said they were open to working with Trump on progressive-friendly policies like infrastructure and trade, while stiff-arming Paul Ryan and Co.’s conservative agenda.
But Trump’s chest-thumping over the border wall proved too perfect a target for Democrats to ignore. And so their divide-and-conquer strategy, at least temporarily, took a 180-degree turn.
Not that Hill Dems are remotely disingenuous in voicing frustration and outrage over the president’s intrusion. “It really is Trump’s fault. He is the one insisting on including the wall, not Congress, and that is a deal breaker for Dems,” said the former House staffer.
Until Trump started with all the chest beating, stressed the current House aide, Republican legislators were not talking about the wall. “They were talking about getting some face-saving additional border security funding—non-wall technology or something. Everybody thought that would be the way this played out.” But then the president began issuing demands and threats, many of them delivered by White House budget director Mick Mulvaney.
“He is quite possibly the worst messenger for this sort of topic,” said the aide, pointing to Mulvaney’s congressional history of helping blow up multiple budget deals and of playing a key role in the 2013 government shutdown. Inserting Mulvaney into the situation, said the aide, “has not been helpful to the prospects of keeping government open.”
Democrats’ genuine dismay notwithstanding, if the messaging also happens to serve the party’s political fortunes, all the better. Chipping away at Trump’s popularity is significantly more useful to the blue team than throwing shade at congressional Republicans. As Democrats know all too well, public unhappiness with the president tends to ooze over onto lawmakers of his party.
“As long as we do our jobs and make the Republicans in Congress own this president, they're all going to get blamed,” said Kristen Hawn, a Hill staffer turned Democratic strategist. “When you've got control of House, Senate, and the White House, it's really difficult to go back home and try to message to your constituents that the president somehow shoulders all the blame by himself. We always struggled with that as moderates,” said Hawn, who worked with the centrist Blue Dogs. “It didn't matter how our bosses voted or how many times they opposed Obama,” she recalled, “they were always branded Obama/Pelosi Democrats.”
Even Trump seemed to belatedly realize his misstep. By Monday evening, he was furiously back-pedaling on the wall, telling a gathering of conservative journalists that he would now consider deferring the fight until later this year.
But grave damage has already been done. Whatever comes out of this week’s budget fight, no matter how zany it may get, a big chunk of the narrative will focus on presidential overreach and incompetence. Which is ultimately a bigger gift to Democrats than any damage they could inflict upon their legislative adversaries.
Given his administration’s bizarre rhetorical struggles when it comes to anti-Semitism and the Holocaust, the bar for Donald Trump’s speech on Tuesday at the Holocaust Memorial Museum was low. All he really had to do was show he understands that anti-Semitism is bad, and that the Holocaust happened mostly to Jews. He did that, and more. At times, his speech was genuinely moving. It was also disturbing in a very instructive way.
The Holocaust is both a defining event in the modern history of the Jewish people and a defining event in the modern history of inhumanity. It has profound particular significance to Jews and profound universal significance to anyone concerned with the marriage of war, bigotry, state power and human indifference. In the quarter century since the United States decided to memorialize the Holocaust with a museum on the National Mall, the presidents who have spoken about it have walked a line between these particular and its universal elements.
In 2012, for instance, Barack Obama talked about “Treblinka and Auschwitz and Belzec” but he also mentioned Bosnia, Cambodia, Rwanda, Sudan, Cote D’Ivoire, Libya and Uganda. He pledged to “realize a future where no African child is stolen from their family and no girl is raped and no boy is turned into a child soldier” and he announced the “first-ever National Intelligence Estimate on the risk of mass atrocities and genocide.” In 2016, he warned that, “anti-Semitism is on the rise,” that “Jews [are] leaving major European cities” and that “Jewish centers are targeted from Mumbai to Overland Park, Kansas.” But he also said honoring the Holocaust’s memory requires people “to make common cause with the outsider, the minority, whether that minority is Christian or Jew, whether it is Hindu or Muslim, or a nonbeliever; whether that minority is native born or immigrant; whether they’re Israeli or Palestinian.”
Just because Obama addressed the Holocaust’s universal lessons in his speeches doesn’t mean he incorporated them into his policies. Talking about what the Holocaust should teach Americans about the carnage in Syria, as Obama did in 2012, is not the same as acting forcefully to try to stop it. But Obama at least acknowledged in concrete ways that the Holocaust creates obligations to protect the dignity of all people, not just Jews.
Trump did not. He said that, “we will never, ever be silent in the face of evil again.” He pledged, “We will stamp out prejudice. We will condemn hatred.” But beyond Jews, he didn’t mention a single specific group threatened by hatred or a single specific place where evil lurks. His references to the Holocaust’s Jewish meaning were lengthy and specific. His references to its universal meaning were brief and vague to the point of meaninglessness.
This isn’t really a surprise. Yes, Trump launched missile strikes to punish Bashar Assad’s government for using chemical weapons, something the Obama administration did not do. But more than any president in modern history, he has been indifferent to—if not contemptuous of—the notion that America has universal obligations that transcend national self-interest. In fact, Trump often suggests that the United States has shown too much moral concern for those beyond its shores. Elie Wiesel famously told Americans that the Holocaust’s message was “don’t be indifferent.” Trump’s message has been: “Don’t be suckers. Take care of your own.”
Obviously, Trump is not the first American president to support dictators. But in his fawning praise of murderous autocrats like Egyptian President Abdel Fattah el-Sisi and Turkish President Recep Tayyip Erdogan, he has dispensed with even the veneer of moral concern. When the State Department issued its annual human rights report, his secretary of state broke with tradition and declined to attend. Refusing sanctuary to Syrian refugees fleeing that country’s brutal civil war is among Trump’s defining political passions.
And, of course, Trump isn’t only actively indifferent to people in far-off lands who suffer from “prejudice” and “hatred.” From his statement that “Islam hates us” to his false accusation that American Muslims celebrated the 9/11 attacks, to claiming that Mexican immigrants are “rapists” to his creation of an office devoted to publicizing the crimes of undocumented immigrants, he stokes that prejudice and hatred in the United States.
So it’s no wonder Trump downplayed the Holocaust’s universal lessons. Instead, by talking almost exclusively about its meaning for Jews, he turned the occasion into an exercise in ethnic politics. The Irish get St. Patrick’s Day; the Jews get a speech about the Holocaust.
In his speech, Trump spoke warmly about Elie Wiesel. On April 22, 1993, the day the Memorial Museum was dedicated, Wiesel turned to Bill Clinton, with whom he shared the dais, and reprimanded him for not taking the Holocaust’s universal message seriously enough. “Mr. President,” he exclaimed, “I cannot not tell you something. I have been in the former Yugoslavia last fall. I cannot sleep since for what I have seen. As a Jew I am saying that. We must do something to stop the bloodshed in that country.”
Sadly, there was no American Jewish figure able or willing to play that prophetic role at Trump’s speech. No one told him that if you deny refuge to the desperate, and slander vulnerable minorities for political gain, you have learned nothing from the Holocaust. No one told Trump that until he goes before a group of American Muslims, or a group of Latinos, and vows to protect their rights and dignity, his words to Jews are empty.
“It is our duty to remember the Shoah and to teach it our children,” wrote Rabbi Arnold Jacob Wolf. “Not to give us Jews special rights or special roles, but to make us sensitive to the outrages that marred all of Western history and to the tasks of human rescue and succor that still remain.”
By that standard, the people who invited Donald Trump to speak at the Holocaust Memorial Museum—and the people who politely applauded his words—failed.
Donald Trump is not the first U.S. president to tangle with Canada over lumber. In fact, the first U.S. president to do so was the first U.S. president. George Washington’s administration saw a dispute over ownership of valuable forests on the border between New Brunswick and present-day Maine.
So despite Trump’s recent tough talk about the trade relationship with America’s neighbor to the north, his announcement Tuesday morning of new tariffs on Canadian lumber is actually consistent with what U.S. policy has been for decades. Where Trump differs from previous presidents, though, is in very publicly sounding off about a longstanding disagreement. In so doing he has also, apparently, found a new target for his trade-related ire, even as he softens his stances toward previous targets like China and Mexico.
“We’re going to be putting a 20 percent tax on softwood lumber coming in—tariff on softwood coming into the United States from Canada,” Trump said Tuesday morning. Actually, the Commerce Department is levying tariffs on a range of Canadian lumber companies, with the average coming to around 20 percent.
It’s not just wood that’s at issue. Tuesday morning, Trump tweeted:
Canada has made business for our dairy farmers in Wisconsin and other border states very difficult. We will not stand for this. Watch!— Donald J. Trump (@realDonaldTrump) April 25, 2017
He’d previously complained about the dairy issue during an appearance in Wisconsin. Also Tuesday, Commerce Secretary Wilbur Ross issued a statement attacking Canada:
It has been a bad week for U.S.-Canada trade relations. Last Monday, it became apparent that Canada intends to effectively cut off the last dairy products being exported from the United States. Today, in a different matter, the Department of Commerce determined a need to impose countervailing duties of roughly one billion dollars on Canadian softwood lumber exports to us. This is not our idea of a properly functioning Free Trade Agreement.
Both the lumber and dairy issues are enduring matters of dispute between the U.S. and Canada, though for slightly different reasons.
The Canadian lumber industry functions differently from that of the United States. In the U.S., most logging is done by private companies on privately owned land. The Canadian timber industry operates largely on public lands, with companies paying a fee to harvest. U.S. logging companies charge that this constitutes an unfair government subsidy, allowing Canadian producers to flood the American market with cheaply produced softwood (from fir, spruce, pine, and other coniferous trees).
Every few years this dispute flares up, and then the Canadian and U.S. governments reach an agreement—often under pressure from American builders, who are upset about paying higher costs for wood—that sets some sort of quota on imports to the U.S. to appease all parties. The latest agreement, signed in 2006, expired in 2015, leading inexorably to Tuesday’s declaration. Bloomberg reported that some Canadian lumber officials, while disputing the U.S. charges, actually viewed the tariffs as less onerous than might have been expected.
“This is so predictable,” says Laura Dawson, director of the Canada Institute at the Wilson Center. “It’s like the Mayan calendar: 100 years of good harvest and then 10 years of chaos and darkness.”
The dairy dispute, meanwhile, centers on Canada’s staunchly protectionist approach to the industry. The Canadian dairy industry is largely quarantined—neither exporting nor importing milk products. In recent years, American producers found a loophole allowing them to export to Canada new products not covered by existing rules, but Canada has now moved to close that off. Canada’s reason is simple enough: It’s politically popular to support Canadian dairy farmers. The reason Trump is complaining is that it’s also politically popular to support American dairy farmers. (This is true across party lines: Democratic Senate Leader Chuck Schumer is praising Trump on the milk issue; then-President Obama privately pressed Prime Minister Justin Trudeau on the same matter when he was in office.)
These long-running irritants in the U.S.-Canadian trade relationship have not typically gotten in the way of broader trade between the two countries: Canada is the largest importer of American goods, and it’s the fourth-largest source of imports to the United States. But because of the disagreements over dairy and lumber, they are excluded from NAFTA, which eliminates trade barriers between the U.S., Canada, and Mexico on most products.
Historically, the U.S. and Canada have worked their way through disputes over the two products. But the question is whether Trump, having followed past administrations’ lead on adding tariffs, will also follow them on breaking the impasse. If the Canadians hoped that Donald Trump, with his past as a builder, would be more likely to offer a good deal on softwood lumber than the Obama administration, they may be sorely disappointed now.
Trump has sent mixed messages about U.S. trade over its northern border in general. “People don’t realize Canada’s been very rough on the United States,” he said Tuesday. “Everyone thinks of Canada being wonderful and civil. I love Canada. But they’ve outsmarted our politicians for many years, and you people understand that.” But Trump seemed to get along well with Trudeau when the two met in February, and he was very eager to restart construction on the Keystone XL pipeline, a major Canadian priority Obama had tried to kill. (Trump and Trudeau spoke on Tuesday, though a White House readout shed little light on the call, except that they discussed wood and dairy and that “it was a very amicable call.”)
“You’re trying to find a pattern, and it’s really difficult to say whether we should expect that there would be a pattern in the way that this White House behaves in its foreign relations,” Dawson said. “I think it’s going to go more or less the way it has gone in previous negotiations. The things that are more worrying here are the leakage between the issues that are known to be systemic irritants and the broader trading relationship. We all know that we’re not going to get along on softwood, but that’s not a reason to blow up the NAFTA.”
Whether the Trump administration will feel the same way remains to be seen. It has been slow to begin formal renegotiation of NAFTA—a process about which Canada has been outwardly supportive—but says it remains committed to the process. The U.S. is effectively asking Canada to hobble its dairy and timber industries, but it’s unlikely Trump would make any concessions on Canadian priorities, like dropping “buy American” provisions and opening up labor markets to Canadian workers. A drawn-out trade war between Canada and the U.S. would harm U.S. exporters and increase some prices for American consumers, but it would likely hurt Canada more, since trade with the U.S. represents a larger percentage of Canadian GDP than trade with Canada represents for the U.S.
But Canada is aware of this and has begun trying to diversify, as a government Twitter account pointedly noted Tuesday:
Canada is now pursuing closer trade relationships with China and other Asian markets. Ironically, the Trans-Pacific Partnership negotiated under Obama would have opened up the Canadian dairy market to American exports, but Trump withdrew the U.S. from that agreement.
Although the lumber and dairy disputes are not new, Trump’s very public excoriation of Ottawa is unusual. It’s especially remarkable because his attacks on the closest American trade partner come as he has softened his line on two of the countries he has most aggressively criticized in the past. During the presidential campaign, he accused Mexican and Chinese leaders of outsmarting the U.S. in negotiation, and vowed to take a tougher line with them. Instead, he has blinked on demanding funding for his border wall and softened his language toward China, recognizing both that Beijing has not devalued its currency for years and that he needs Chinese assistance to contain North Korea.
Meanwhile he has transferred his complaints about those countries over to Canada, right down to the “outsmarted” terminology. The current approach is a nearly perfect embodiment of the old maxim that one should keep one’s friends close and one’s enemies closer—give or take the closeness with friends.
First, it was crowd size. Then, it was health-care bill size. On Tuesday, the Trump administration continued its habit of conflating quantity with quality by releasing a list detailing President Donald Trump’s “historic accomplishments” from his first 100 days in office, a milestone he will officially reach on Saturday. The list boasts of the number of Trump’s Congressional Review Act resolutions, his executive actions, and laws he’s signed since his inauguration.
A few of these figures appear to be wrong. But what matters more is that the administration is bothering to count them in the first place.
Tuesday’s press release predicts that Trump will have signed 30 executive orders by his 100th day in office, a feat the administration says is greater than that of any other president since Franklin D. Roosevelt, whom it credits with signing only nine executive orders. Roosevelt actually signed 99 executive orders by June 12th, his 100th day in office.
On Twitter, historian Peter Schulman offered a plausible theory for how the press release might have gotten it wrong: Perhaps it was citing the numbers from the American Presidency Project, which appears to list only the most consequential executive orders from past presidents. Schulman also pointed out that while the press release is correct in saying that President Truman signed 25 executive orders within the first 100 days of his 1949 inauguration, Truman’s first 100 days actually took place after he took over for Roosevelt in 1945. In that year, Truman signed more than twice that many executive orders.
Accuracy aside, it’s revealing that the Trump administration is boasting about the number of executive orders and laws the president has signed, rather than highlighting the impact of those laws. The release says, correctly, that Trump has signed 28 laws in his first 100 days—more than any president since Harry Truman. That tally includes a recent law funding NASA and another authorizing the National Science Foundation to promote entrepreneurial programs for women.
But it also includes a dozen pieces of legislation rolling back regulations issued by President Obama, and three joint resolutions appointing men to the Board of Regents of the Smithsonian Institution. In March, Trump signed H.R. 609, dubbing the Veterans Affairs health-care center in Butler County, Pennsylvania, the “Abie Abraham VA Clinic.” Another act declares an outpatient clinic in American Samoa the “Faleomavaega Eni Fa’aua’a Hunkin VA Clinic.”
In other words, not all laws have equal impact. In his first 100 days as president, Bill Clinton had signed the Family and Medical Leave Act. By March 2009, President Barack Obama had signed the Lilly Ledbetter Fair Pay Act into law, and later, employed the economic stimulus package intended to end the recession.
But counting, rather than evaluating, has become a trademark of an administration focused on ratings. During a press briefing in March, White House Press Secretary Sean Spicer illustrated the difference between the House Republicans’ new health-care proposal and the Affordable Care Act by setting them side by side on the dais in the West Wing.
“This is the Democrats’,” Spicer said, gesturing to the taller stack of papers. Then he pointed to the smaller stack. “This is us,” he said, adding, “I think the greatest illustration of the differences in the approaches is that size.” But being shorter in length doesn’t make legislation inherently better: The GOP proposal failed despite its lower page count, because House Republicans couldn’t agree on its contents.
In Friday’s interview with the Associated Press, Trump complained that the first-100-days threshold is an “artificial barrier” that is “not very meaningful.” It’s a critique this latest release from the White House appears to bolster.
President Trump’s first 100 days deserve at least one superlative: The Trump administration has managed to alienate the courts to a degree that some administrations take years to achieve.
The latest Trump defeat came Monday in the U.S. District Court for the Northern District of California. That case, County of Santa Clara v. Trump, has now produced a nationwide injunction against another Trump executive order: “Enhancing Public Safety in the Interior of the United States,” issued on January 25. On Tuesday, federal district judge William Orrick of the Northern District of California, blocked section 9(a) of the order. That’s the enforcement mechanism of the order’s ill-defined attack on “sanctuary” cities and counties that refuse to take orders from the Department of Homeland Security.
To a degree unusual in public law litigation, Trump’s legal setbacks flow from his personal flaws: constitutional illiteracy, governmental inexperience, contempt for law and lawyers, lust for executive power, and—most of all—simple inability to keep his mouth shut.
To begin with, the executive order would probably get an F in a first-year legal writing class. Among its sins, it announces measures against “sanctuary jurisdictions” but provides no definition of that term. Its goal is to convince—or more properly intimidate—local governments in two ways. First, a number of cities have concluded that their police agencies will be more effective in solving crime if victims, witnesses, and suspects can talk to them without being afraid that police will turn them in to U.S Immigration and Customs Enforcement. Trump, Attorney General Jeff Sessions, and Secretary of Homeland Security John Kelly want those localities to scrap those policies, and instead to let their law-enforcement officers not only pass information to ICE, but also to work as temporary immigration-enforcement personnel.
Second, they want local jail authorities to honor ICE “detainers.” These are administrative requests (not court orders) to local jails to hold certain aliens—suspected of being undocumented—for 48 hours. Even if there are no charges pending against them, ICE agents want them held until they can pick them up with an eye to deportation. There are two problems with the detainers. First, they don’t come with funding. (According to figures submitted by Santa Clara County in this case, complying with detainers can cost it nearly $8 million a year.) Second, holding anyone—citizen or not—without probable cause or a court order is unconstitutional; and the feds don’t pay the cost of lawsuits either.
Orrrick’s tone is polite; but boiled clean, he reaches three conclusions. First, even the government doesn’t know what the order means and thus localities can’t comply even if they want to; second, the order is a naked grab for executive power—usurping not only the Tenth Amendment powers of states, but also the Article I spending power of Congress; and third (just as with the claim that the travel-ban order is actually a Muslim ban), Trump’s own intemperate words have sealed the order’s fate.
The judge notes that the two plaintiffs—the City of San Francisco and the nearby Santa Clara County—depend on federal funds, among other things, “to provide medical care, social services, and meals to vulnerable residents, to maintain and upgrade roads and public transportation, and to make needed seismic upgrades.” The executive order gives the Attorney General and the Secretary of Homeland Security the authority to designate any locality as a “sanctuary jurisdiction” and then “take appropriate enforcement action” to block some or perhaps even all of this funding.
This threat of catastrophic revenue loss is designed to force the counties to enforce federal immigration law. This is unconstitutional in no fewer than three ways. First, the Supreme Court has repeatedly said that the federal government can’t directly require states to enforce federal law. Second, the Supreme Court has also said repeatedly that the feds can’t use the threat of funding cutoffs so large that they “coerce” states into complying with conditions that would be unconstitutional if made as direct orders. And third, the court has said that only Congress can impose conditions on federal grants. The president cannot, with a stroke of his own pen, transfer this core power to himself or his appointees.
To make matters worse, no locality would know how to follow the order if it wanted to, the opinion notes. The order prescribes penalties for jurisdictions that “willfully refuse to comply” with federal immigration law; but the government admitted in court that “the Attorney General and Secretary of Homeland Security have not yet figured … out” what those words mean. In addition, Orrick writes, “at least as of two months ago, the Secretary himself stated that he ‘do[esn’t] have a clue’ how to define ‘sanctuary city.’”
The final nail in the order’s coffin was driven by Donald Trump’s mouth. The government argued that the order merely encourages localities to cooperate voluntarily. However, the judge quoted Trump as saying: “I don’t want to defund anybody. I want to give them the money they need to properly operate as a city or a state. If they’re going to have sanctuary cities, we may have to do that. Certainly that would be a weapon.” He noted that Sessions escalated the threat, saying that he would not only withhold future funds, but “claw back any funds awarded to a jurisdiction” that did not follow federal orders.
In fact, Trump and Sessions have both “called out” California in particular, Orrick noted. “If we have to we’ll defund, we give tremendous amounts of money to California,” Trump has said. “California in many ways is out of control.” Sessions recently wrote an op-ed in the San Francisco Chronicle specifically charging that the city’s laws are at fault for the death of a murder victim, and urged “San Francisco and other cities to re-evaluate these policies.”
There’s no good news for the administration in this opinion; in fact, Judge Orrick—like Judge James Robart in Seattle, Judge Derrick Watson in Hawaii, Judge Theodore Chuang in Maryland, and the three-judge appeals panel of the Ninth Circuit that upheld the injunction on the original travel ban—seems by his tone to have concluded that not one word coming from the government or its lawyers can be believed.
Once a judge decides that a client is dishonest and his lawyers are incompetent, regaining credibility is at best hard and most likely impossible. Seldom in history has a president worked so hard and so quickly to convince so many judges that neither his word nor his motives are worthy of respect.
Updated on April 25 at 3:02 p.m. ET
The fate of the resurrected American Health Care Act in the House might now rest with Republican moderates.
Forgive them for not celebrating their newfound clout.
Conservative leaders of the House Freedom Caucus have struck a deal with the White House and one leading GOP moderate to back the party’s stalled replacement for the Affordable Care Act in exchange for granting states even more flexibility to wriggle out of the law’s insurance mandates. Under the proposed amendment, states could seek waivers from the federal government, allowing them to eliminate the prohibition on insurers charging higher premiums to people with pre-existing conditions and a requirement that plans cover a range of “essential health benefits,” including maternity care, mental-health treatment, emergency room visits, and hospitalization.
The Freedom Caucus has been targeting those core mandates from the start, arguing that they force insurance companies to increase premiums on all customers to pay for the sickest people. And after weeks of talks, the group’s chairman, Representative Mark Meadows of North Carolina, agreed to a compromise authored by a co-chairman of the moderate Tuesday Group, Representative Tom MacArthur of New Jersey. The Freedom Caucus formally endorsed the new bill on Wednesday. Its backing could bring another 15-20 conservatives aboard and draw the GOP leadership much closer to the 216 votes it needs for passage in the House. Republicans can lose no more than 22 votes, and about a dozen moderates were publicly against the original legislation.
“We think the MacArthur amendment is a great way to lower premiums [and] give states more flexibility while protecting people with pre-existing conditions. Those are the three things we want to achieve,” Speaker Paul Ryan told reporters on Wednesday morning, after a private meeting of the House GOP. “I think it helps us get to consensus.”
Yet the speaker acknowledged they hadn’t quite reached that consensus, and without the support of enough moderates, the bill could still fall short. While MacArthur is the author of the compromise, he was already supporting the bill to begin with. A former insurance executive, he’s only beginning his second term in the House and is not seen as a driving force within the Republican conference. Another of the three co-chairmen of the Tuesday Group, Representative Charlie Dent of Pennsylvania, had come out against the GOP bill and quickly declared himself unmoved by MacArthur’s amendment. So did Representatives Dan Donovan of New York, Ileana Ros-Lehtinen of Florida, and Frank LoBiondo of New Jersey.
“It doesn’t address the concerns that I had,” Donovan told me in a phone interview on Wednesday. Representing Staten Island and a slice of southern Brooklyn, Donovan is the only House Republican from New York City, whose residents could be hit hard by provisions restricting the use of tax credits in the GOP bill. Opinions about the MacArthur amendment were mixed during a meeting of the Tuesday Group, he said. While some members liked the additional flexibility for states, “there’s others who may have balked or taken a step back” because of the changes to the pre-existing conditions guarantee, MacArthur said.
In fact, of the more than a dozen moderates who were opposed to the American Health Care Act a month ago, none have yet said the new compromise changes their mind.
And why should it? The new proposal retains the $800 billion in cuts to Medicaid that moderates are leery of supporting, and it is not likely to improve the projection of the Congressional Budget Office that 24 million fewer people would have health insurance a decade after the law’s enactment. And although Ryan pointed out that the bill would technically preserve the federal protection for people with pre-existing conditions, a firm GOP pledge, that guarantee would be worth next to nothing if states could easily seek a waiver exempting them from the mandate.
Politically, moderates have more to lose than members of the Freedom Caucus by supporting a bill that, one poll showed, fewer than one-in-five Americans supported. They are more likely to hail from more centrist and Democratic-leaning districts where support for Obamacare is stronger. In a rapid warning of the political blowback lawmakers could face, the Democratic Congressional Campaign Committee immediately launched digital ads attacking Republicans over a provision in the MacArthur amendment that would keep Obamacare’s consumer protections for members of Congress while allowing them to be scrapped for their constituents. Another liberal group, American Bridge, unveiled a new ad on Wednesday hitting Republicans for breaking President Trump’s promise to maintain the ban on discrimination based on pre-existing conditions.
These more pragmatic members of the House GOP now find themselves in a familiar squeeze. For years, they’ve watched the balance of power within their party in Congress drift to the right. When Republican leaders are short of votes, they often first negotiate with the more recalcitrant conservatives and then rely on the loyalty of the moderates to secure passage of the bill. On health care, conservatives have indeed moved far off their original position. The bill the Freedom Caucus, along with key outside groups like Heritage Action, FreedomWorks, and the Club for Growth, have just endorsed falls far short of a full repeal of the Affordable Care Act.
Yet there’s ample reason for moderates to remain suspicious of their colleagues. Even with the revisions under the MacArthur amendment, conservatives know the AHCA will not pass the Senate as it is currently written. But by backing the package and securing political cover from conservative activists, they can now shed the blame for its defeat, passing it off either to the Senate or the more politically vulnerable House moderates. “There’s still more work to be done on this bill in the Senate and on further health care reforms,” said David McIntosh, president of the Club for Growth, “but any GOP moderates who stand in the way at this point are proving that they simply don’t want to keep their campaign promises to get rid of Obamacare.”
Moderates have been seeking power in the Republican conference for years. They have it now on health care, even if it feels less like real influence and more like just another piping hot potato.
“Figure out a way to change the state that you live in.” That was the controversial advice White House budget director Mick Mulvaney offered to those worried about a proposal that would allow states to repeal required essential health benefits in health-insurance plans. That provision didn’t quite make it into the last round of the Republicans’ effort to repeal and replace Obamacare, and Mulvaney later clarified that he was urging citizens to persuade their legislators to enact changes where they lived, not encouraging them to move. But the soundbite, endlessly replayed on cable news, became a rallying point for the plan’s opponents. If Americans want their insurance to cover things like maternity care, hospital stays, or mental health under the future written by the American Health Care Act, they warned, they might soon have to pack up and move to another state.
The last round of Republican negotiations on the AHCA died last month in the House, driven by defections both among the ultra-conservative Freedom Caucus, who balked at the elements of Obamacare individual cost controls that it maintained, and also by moderates, who thought that the controls the law cut were too draconian, especially for their working-class base. But President Trump and congressional Republicans have renewed negotiations on the AHCA in recent weeks, hoping to mollify the rebellious Freedom Caucus with more conservative additions to the bill. A new proposed amendment from Rep. Tom MacArthur might accomplish just that, but in the process might actually be the final nail in the bill’s second coffin.
The amendment is rather plain in its language and what it seeks to accomplish. It would allow states to opt out of federal essential health benefits requirements for exchange plans and create their own requirements, which could allow more insurers to sell barebones plans on the tax-subsidized marketplaces. MacArthur’s amendment would also allow states that participate in the AHCA’s high-risk-pool funding mechanism to waive some parts of Obamacare’s “community rating,” including the parts that protect people from higher costs because of pre-existing conditions and limit the premium multiplier for older people. While the law doesn’t allow insurers to bar coverage for sick and elderly people, it doesn’t limit how much they can be charged, which means they can be functionally priced out of coverage.
While MacArthur’s provisions today gained the fealty of the troublesome Freedom Caucus, when leader Mark Meadows gave his stamp of approval to the amendment, they don’t actually address the issues that have turned public support and likely the majority of the Senate against the bill, and introduce some more potential process and policy snags.
To start, the AHCA’s main policy flaw—and one that seemed to blindside the Republicans who wrote it—was the fact that its combination of removing the cost controls and eliminating the income adjustment for the ACA’s insurance subsidies, and its allowance of a wider age-rating scheme that allows older people to be charged more for insurance would dramatically and almost comically inflate costs for older low-income people, sometimes by as much as ten times their current premium amounts. Since average statewide insurance costs are not accounted for in the original AHCA subsidy framework, the amount people are charged for insurance could differ by thousands of dollars simply based on their zip code. MacArthur’s amendment not only fails to address those issues, it makes them worse, as there is no hard limit to the age-rating or the other relaxations of insurance-rating schemes.
The ACA’s ban on denying people coverage for pre-existing conditions has long been a sticking point among voters, Democrats, and moderate Republicans, and this amendment also challenges that strong constituency. While it doesn’t quite overturn the ban, it does essentially allow states to do so by letting insurers price people with pre-existing conditions out of the market. This extreme is probably unlikely, since states would then have to deal with the resultant political backlash, but allowing insurers to charge more for sicker people would certainly be back on the table. These tend to be the older and lower-income people who would already be pushed to the margins by the AHCA’s rating schemes. Additionally, MacArthur plans to exempt members of Congress and their staffs from the provisions, which probably won’t play well politically.
While it doesn’t change the AHCA’s provisions to scale back the federal commitment to Medicaid, the amendment does interact with those provisions to create a strange dynamic for federalism. In allowing states to define almost all of the core parameters of what might amount to a half-trillion-dollar federal investment in the form of health-insurance subsidies while also reducing incentives for price gouging and decreasing the “skin in the game” among states to cover people left out or stabilize state health-care systems, MacArthur’s plan essentially incentivizes insurers and states to raid federal coffers, which makes it an odd proposal to win the backing of the fiscally-conservative Freedom Caucus.
Some states might decide to allow insurers to sell plans with minimum actuarial value, thus bringing in federal subsidies for as many healthy citizens as possible. With a reduced federal requirement to take care of the sicker, older people who might enter the ranks of Medicaid without subsidized insurance, states would be rather free to let insurers simply price them out of all affordable insurance altogether. It’s even more of a boondoggle in favor of insurers, healthy people, and wealthy people than the AHCA was originally, all on the federal dime.
While this amendment might help the AHCA get more traction in the House—and that’s still far from certain since moderate Republicans in the chamber appear unswayed—it seems even less likely than before to advance through the Senate. Not only have Senate Republicans been much less welcoming to the bill’s scorched-earth and unpopular insurance provisions than their House counterparts, MacArthur’s amendment may jeopardize the mechanism intended to pass the law. Republicans are using reconciliation in this budgetary process to sidestep the possibility of a Democratic filibuster in the Senate, but that mechanism can usually only be used on concrete budgetary items. The state opt-outs in this amendment are murky at best for reconciliation, and could very well fail the test of the Senate parliamentarian before the bill even comes to a vote.
Indeed, for all the talk on the Hill and the renewed energy behind Republican health reform, the goal of changes like the MacArthur amendment seems not to pass a workable nationwide law, but to provide some narrow political victories. Its construction suggests that Republicans still don’t have an Obamacare replacement that can satiate the appetite for repeal on the right without simply taking coverage away from millions of Americans. While anything is still possible in the House and Senate, actually fixing health care still seems beyond reach for Republicans right now.
Any real discussion of mass incarceration is impossible without addressing racism. Michelle Alexander’s widely acclaimed book The New Jim Crow cast the criminal-justice system as a successor to slavery and segregation, one that’s hamstrung the African American community’s social and economic growth since the civil-rights movement. My colleague Ta-Nehisi Coates has explored at length how racial anxieties led white politicians to support increasingly harsher punishments for gun and drug crimes to devastating effect.
Locking Up Our Own: Crime and Punishment in Black America adds more layers to this case. (A full review of the book can be found in the upcoming June 2017 issue of this magazine.) The author, James Forman Jr., is a Yale University law professor and the son of a civil-rights icon. What he offers is an insightful history of black American leaders and their struggle to keep their communities safe from police and criminals alike. “Far from ignoring the issue of crime by blacks against other blacks, African American officials and their constituents have been consumed by it,” he writes.
What often followed, however, was a tragic embrace of punitive solutions to deep-seated social woes. “We’re going to fight drugs and crime until the drug dealer’s teeth rattle,” Atlanta Mayor Maynard Jackson insisted in the 1970s. Congressman Charlie Rangel, who represented Harlem for decades, enthusiastically took up the mantle of a drug warrior during the crack epidemic in the 1980s. Eric Holder, a federal prosecutor and later the first black U.S. attorney general, championed pretextual car stops and searches to curb gun violence during the Clinton administration.
Even while focusing on black America’s presence at the start of mass incarceration, Forman does not detach it from its roots in racist policies. If anything, he uncovers deeper ones. Black leaders in the 1970s, for example, called for “a Marshall Plan for urban America” to combat entrenched poverty and despair. They demanded social justice, stronger policing, and greater economic opportunity—and received only stronger policing in response.
Bracketing this history are Forman’s own experiences as a public defender in Washington, D.C., where he witnessed black judges and prosecutors carry out the thousands of small decisions that helped build mass incarceration. He opens with the story of a local judge who reprimands a teenage defendant with what Forman describes as “the Martin Luther King speech”—a stern lecture on how one’s failings are an insult to the civil-rights struggle—before handing the young man an excessive prison sentence. “I grew to hate the Martin Luther King speech,” Forman writes.
From both these personal experiences and the history that helped shape them, Forman uncovers the black community’s role in waging wars on crime and drugs. I spoke with him about the book, the stories behind it, and their meaning for this unusual moment in the national conversation on American law and order. Our conversation has been edited for length and clarity.
Matt Ford: What surprised you most when you were writing and researching this book?
James Forman: Let me say two things: One is a general thing, and one is something that’s more specific. I’m very critical of the system of criminal justice that has been built and its devastating impact on black communities, and I’m very critical of people like the judge who I open the book with, that story. When I went back, and I did the research, and I read transcripts, and I read op-eds, and I interviewed people, I tried to put myself in the position of looking at the world through their eyes and in their context. One of the things that I developed was a greater sense of compassion for and empathy for people with whom I disagreed or made decisions that I thought now, in retrospect, were mistakes. And it’s interesting because as a public defender, I’m always asking that people be empathetic and people be compassionate toward my client. But I realized that I wasn’t particularly empathetic at all toward someone like the judge. And I think I developed some of that through the writing. My views didn’t change. I still think the system is destructive and damaging and a human-rights violation in many ways. But I have more compassion for the people who helped to build it and understanding where they were coming from.
The more specific answer was the chapter on black policing. A few things surprised me about it. One is for how long into the past the demand for more black police officers had been on the civil-rights agenda. I found Martin Luther King, Sr. saying in 1947 that the 105,000 Negroes of Atlanta needed and deserved one Negro officer. I didn’t know it went back that far. I also was surprised because I didn’t know that there were so many different rationales that had been asserted over time for why we needed more black officers. I was familiar with the “black police officers would be less brutal” rationale—that’s a little bit more of the modern-day one. But I didn’t know that people argued that black police officers will be more aggressive and attentive to crime because they’ll care about crime in black neighborhoods. I didn’t know that was an argument that dated back to the 1940s.
Another surprise finding for me was the disconnect between the civil-rights advocates who were pushing for black officers and the actual people who were going and taking the job. A lot of the people that were taking these jobs as black officers were taking them because they wanted a good job. They were having a different conversation with themselves than the civil-rights leadership that was demanding more black police was having. And I never appreciated that disconnect until I went back and noticed how even though there were 40 or 50 or 60 or more years of asking and demanding for black police, the officers themselves were so silent through that process. They weren’t the ones testifying. They weren’t the ones making speeches. They weren’t the ones writing op-eds. They were going to work. That tension is one of the things that I argue is kind of problematic about the way we think about black police now—because we have, I think, unreasonable expectations. I now realize we always have had those conflicting and unreasonable expectations of the difference that they would make. And I’ve now settled on the view that I never had before, which is that we should have more black police officers, but we should have them because blacks deserve our fair share of good municipal jobs—not because we think they’re going to change policing in any way.
Ford: A notable theme in the policing chapter was how class affected the black community’s views. How does that division shape the discourse around criminal-justice issues, then and now?
Forman: The class question goes back a long time. One argument that civil-rights advocates in Atlanta had in the 1930s and 1940s was that black officers would be able to more effectively distinguish between the law-abiding members of the community and those that weren’t. In essence, they were saying, “White people can’t tell us apart, but those of us that are upstanding, black officers will understand. They’ll respect those members of our community who deserve respect.” I’m sympathetic to that, of course, but then I would go further and say everybody deserves that respect. That was an early example of a class distinction becoming apparent.
Another one came later in the 1960s. I tell a story about Tilmon O’Bryant, who was the first African American lieutenant in the D.C. Metropolitan Police Department. He was also one of the first African American officers, period, to rise up through the ranks. And he overcame tremendous racism alongside Burrell Jefferson, his friend and ally who would go on to be the first black D.C. police chief. They overcame rank discrimination where they couldn’t get promoted because there was a quantitative assessment, a test that they had to take, matched with a qualitative assessment, a supervisor evaluation. And their white, racist supervisors wouldn’t give them rankings high enough that even with high test scores they could get promoted. Their response to that was to double down and triple down and study two and three times as hard. They set up a special training session in O’Bryant’s basement and they studied weekly for the test. Eventually, out of that first class of black officers, all but one scored so high that even with the discriminatory qualitative assessment, they had to be promoted.
As the March on Washington was preparing to descend on D.C., there was advocacy in the local community for more black officers, including in The Washington Afro-American. And O’Bryant came out in opposition to affirmative action. He said, “We don’t need that.” And the Afro-American, D.C.’s black newspaper, which was more of an elite institution than O’Bryant and his working-class background, they told him basically to remain in his place, that he should “stick to policing, not to civil-rights work.” Here they are, the African American elite, through the leading black newspaper, telling this barrier-breaking, path-breaking, working-class African American officer that he should know his place. And that’s the kind of subtle but real class differences that start to appear.
When we move to present day, what we see is a reality where an African American who dropped out of high school is 10 times more likely to go to prison than an African American man who’s attended college. That’s a big difference, then, because the people who are making laws, passing laws, and implementing laws overwhelmingly went to college. And so even though there’s this concept of linked fate in black communities and even though family bonds mean that lots of members of the African American middle class have somebody in their family who’s been caught up in the prison system, it still affects you differently.
There’s one more way in which I think class works its way into our politics of criminal justice: not mass incarceration, but racial profiling in the 1990s. Racial profiling was really the big criminal-justice, racial-justice issue. And the reason I think that racial profiling came to our attention is that it’s an issue that cuts across class lines. It doesn’t matter how much money you have, it doesn’t matter how many degrees you have—if your skin is dark enough to be identifiably black, then you run the risk of being racially profiled. So that issue comes to the attention of the civil-rights establishment almost two decades before mass incarceration does. And the reason, I think, is class.
Ford: I got kind of the sense of déjà vu reading some of these stories you have in here, because it seems like we’re having some of these same debates over and over again—on gun violence, on marijuana legalization, on the criminal-justice system’s interaction with both of those issues, on racism’s impact on them. Are we?
Forman: I think that we are. I think that the conditions that lead to the debate have remained similar if not the same, and then I think the debates remain similar if not the same. The historical context changes, our language changes, some of our understanding of the issues changes, but the issues themselves—issues of crime, issues of police brutality, issues of underenforcement—don’t. Chapter Two is called “Black Lives Matter,” so I’m self-consciously trying to make the point there that something we think of as a 2014 or 2015 development is something that’s been around for 50 years.
Ford: There’s also kind of a sense of tragedy, especially in the early chapters of the book, where you can see the thought processes going into these decisions, but we already know from modern experience where some of these paths will lead.
Forman: Well, yeah. I mean, I wanted to cry sometimes when I’d read the debates surrounding marijuana decriminalization in 1975, because I saw people like African American ministers who came out against decriminalization and people like Doug Moore. Moore was a Washington, D.C. city council member, a black nationalist, a race man, and a minister with a deep, deep love for the black community. In many ways, he organized his life around fighting for black people, fighting for black youth, fighting for disenfranchised black youth. I mean, the man was endorsed by a coalition of prisoners. This was someone who cared about those that society has given up on.
And his love for black community, combined with his not knowing what was to come, combined with his fear of drug addiction and drug use and his distrust of white liberal allies who were proposing decriminalization—all of those come together and lead him to conclude that the harms of marijuana use were greater than the harms of marijuana criminalization. And he won the debate. It was a close debate, but he won the debate. And when I look now and I think about how much damage marijuana criminalization has done to black communities, I think that somebody like that, if he knew what was to come later, he surely would have done something different. That’s, for me, the tragic element.
Ford: Another aspect that stood out to me was the role black-on-black crime played in these debates. These days we always hear it as a lazy retort when people talk about police shootings, but you highlight a greater role for it in the civil-rights era. How big of an influence was it?
Forman: It was huge. First of all, black commentators created the term “black-on-black crime.” A whole Ebony magazine in 1979 was devoted to the term. The first post-Jim Crow generation of black elected officials came into office, and they were bound and determined to make black lives matter. They wanted to protect black people who they knew had never been protected. They came out of a world—this would’ve been true in the North, too, but it was especially true in the South—where you didn’t bother to call the police for a crime in the black community because they weren’t going to come, and if they did come they were just going to make matters worse. Racist Southern sheriffs that had been infiltrated by the Klan considered a black death just another dead black person—and they didn’t use the term “black person.” And so these black elected officials come into power and they want to remedy that. They are deeply motivated by a desire to protect black lives, which they saw and understood as under threat principally from other black people.
And that’s why one of the arguments in the book that’s so important for me to highlight is—I just think it’s a 239-page rebuttal to the idea that black people only care about crime and abuse when it’s at the hands of the police officers. No, no, no. You see page after page of deep and dripping and profound concern for the protection of black lives, regardless of who puts them under threat—whether it be the police or whether it be the robber on the street.
Ford: How does that kind of shape our understanding of how mass incarceration arose? We think of it primarily as this sort of abstract force that came from on high, but you make the really good point that it’s kind of a brick-by-brick thing. Does this kind of history change how we should view the origins of mass incarceration?
Forman: I think it requires us to supplement how we’ve come to view the origins. I see a lot of power and persuasive force in the traditional model that focuses first and foremost on how kind of race-baiting politicians used race to cynically win votes, and how our relative indifference to black suffering at the national level is part of what’s blinded people to the pain and the misery that is mass incarceration. I lay what I’m doing alongside those. I think we have failed to focus on all of these little tiny decisions. When you stack them up and you add them up across time and across the country, and when you add them up throughout the criminal-justice system from police on the one end, through prosecutors and judges and legislatures and probation and parole officers at the other end of the process—when you look at all of these actors over time and over space and across the country, if everyone only becomes somewhat more punitive, but everyone does it together and everyone does it for decades, you get mass incarceration.
I do think that’s a crucial part of the story, and I don’t think it’s one that has gotten enough attention. Ronald Reagan and Richard Nixon and the War on Drugs are the kind of natural hinge points for the story, and they’re important. But they’re not the only things that are important. It’s harder to see some of these smaller decisions. One of the ones I draw out—that’s a classic example of something so small that you wouldn’t even notice it—is Dave Clark, who was a marijuana decriminalizer and a civil-rights activist. He becomes the D.C. city-council head and he gets deluged with letters from constituents asking him, “Hey, there’s drug dealers on my corner, do something about it. There’s drug sales in my neighborhood, do something about it. There’s addicts that are strung out in front of my place of business, do something about it.” And he forwards those letters to a D.C. agency, and the head of the agency writes back to him, and he forwards the response back to the constituent and says, “Look, I did something about the problem. You wrote to me and I took action.”
But he always writes to the police chief. He never writes to a department for drug rehabilitation. He never writes to the department of mental health. This is somebody who’s no drug warrior, but it doesn’t even cross his mind that there would be a non-law-enforcement option to the problem of addiction and the drug trade. So part of the story is lack of imagination. We’ve become, as a nation, trapped in a way of thinking about these problems, and it’s infected everybody, even the good people.
It’s those kinds of small steps that I want us all to confront. That means we’re all going to have to confront it as a way of getting out of this mess. Most people reading this interview have a job and work somewhere. What are your employer’s HR policies? What do they say about the ability to get hired if you have a criminal record? If you’re a student or a professor or an administrator at a university, what are your policies toward admission? What barriers do you impose for people to become admitted to your school based on criminal records? What signals do you send to discourage people by suggesting that if they have a criminal record they won’t be successful in the application process? I want everybody in the country to think about their sphere of influence—because it was everybody kind of acting together, sometimes unknowingly, that helped to create the problem, and I see that as how we’re going to have to unwind it.
Ford: What does this history tell us about the future of reform? I think you pretty much just answered that, but to clarify: It’s going to require not just some sort of legislation, but some sort of collective response?
Forman: That is correct. We definitely need legislation. When I’m talking about kind of the small steps, some of those steps are legislative. A lot of times, someone will propose something, whether it be bail reform or juvenile-justice reform or you name it, and by itself it doesn’t look like it is ever sufficient to respond to this problem of mass incarceration. It can be demoralizing, because the problem is so big, and then you look at this particular legislative response and you think, “Well, that’s not going to solve the problem.” And it’s not. But we have to do it. And we have to do it times a thousand because that’s how we built it. There was no moment when America said, “Hey, do we want to become the world’s largest jailer?” We never took an up-or-down vote. That’s not how it was built. It was built with all these tiny little legislative pieces and in the private arena. We’re going to have to unwind it the same way. Some of them are going to look very small by themselves, but collectively they’ll be powerful.
And yes, it’s going to also have to be all of us in our personal spheres of influence. We’re not only voters and citizens and activists, right, we’re also employers and students, church members or members of religious institutions. What if every religious institution decided that it was going to take three people a year and commit to helping them reenter society? Reentry is one of the biggest problems we have. If every religious institution in America took three people coming back from a prison or jail this year, every one of them coming back would have a place where people are saying, “We are going to care for you. We’re gonna help you get housing. We’re gonna help you get a driver’s license. We’re gonna help you get reconnected to your family and your children.” There are 300,000 religious institutions in America and there are about 900,000 people coming back from prisons and jails every year. So we just need to each do three. It’s that kind of collective response that I’m thinking of.
Ford: Are you optimistic or pessimistic about Americans’ ability to confront this issue?
Forman: It depends on the day. I am fundamentally an optimistic person. And I’m optimistic, in part, because of the amount of interest that I see in this issue. I teach a class on race and the criminal-justice system at Yale Law School. Last year, I taught it inside a prison, so it was 10 law students and 10 incarcerated students studying together. I only had ten slots in the class [for Yale students], and I had six times as many students on the waitlist. And I see that when I go and I lecture and I talk to professors at other schools. College students and law students and high-school students are extremely motivated around this issue. Many of them have been brought to it by reading The New Jim Crow. Others have been brought to it by reading Bryan Stevenson. Still others have been brought to it by reading Ta-Nehisi Coates. Still others have been brought to it by reading some of the hundreds of academics and activists who are less well-known than those three, but are speaking and publishing and advocating. I see this energy. This was not the case in the early 1990s when I became a public defender. Not at all. And that is the thing, fundamentally, that gives me the most optimism.
The second thing that gives me optimism is the enhanced and elevated role that we’re starting to give to people who have been incarcerated and their family members. For so long, those folks were at the margins. Nobody really gave them a voice. Folks were afraid to speak up, they were so stigmatized. “Who really wants to hear from me? I have a felony conviction. Do I really want to reveal my past?” These are the questions that people were asking. And in the past couple of years, that started to change. That idea of turning to those who are closest to the problem for solutions—I think that’s also a cause for optimism.
President Trump insisted that the border wall “will get built,” despite backing down on demands to fund the project in this week’s spending bill. A federal judge in San Francisco blocked a portion of Trump’s January executive order on immigration aimed at cutting federal funding to so-called “sanctuary cities.” The leaders of the House Oversight Committee said Trump’s former National Security Advisor Michael Flynn may have violated federal law by not properly disclosing payments from Russian organizations. Overnight, Arkansas executed two death-row inmates, Jack Harold Jones and Marcel Wayne Williams, making it the first state to execute two inmates back-to-back since 2000. Ivanka Trump discussed women’s entrepreneurship at a summit in Berlin during her first trip abroad as an official representative of the United States.
Breitbart’s Fight Continues: After a months-long battle for permanent congressional press credentials, the right-wing publication’s request has been “tabled.” The primary roadblock: questions concerning the organization’s independence from Donald Trump’s associates. (Rosie Gray)
Missing George W.: In the Trump era, House Minority Leader Nancy Pelosi and other Democrats have increasingly expressed nostalgia for George W. Bush. Their sentiments mirror how Republicans talked about Bill Clinton eight years ago when Barack Obama took office. (David A. Graham)
Calling His Bluff: On Monday, President Trump said he would be willing to delay funding the U.S-Mexico border wall in order to avoid a government shutdown. As Russell Berman notes, this is the second time that Trump has backtracked during high-stakes congressional negotiations.
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The Ticking Time Bomb: The reportedly rapid acceleration of North Korea’s nuclear capabilities is worrying the Trump administration: Is the U.S. running out of time to address the nuclear crisis? (David E. Sanger and William J. Broad, The New York Times)
‘All Hillary’s Fault’: Democrats have blamed FBI Director James Comey for turning the tide of the presidential election in Donald Trump’s favor. While Comey certainly played a role, David French argues, Hillary Clinton “brought this all on herself.” (National Review)
Is the Media Bubble Real?: Yes, argue Politico’s Jack Schafer and Tucker Doherty. Not only that, “but it’s more extreme than you might realize. And it’s driven by deep industry trends.”
An ‘Entry-Level’ Presidency?: Every new president faces a learning curve, but Donald Trump is the first without any government, military, or political background. Experts weigh-in on how this lacking experience may have affected the president’s first 100 days in office. (Domenico Montanaro, NPR)
To Speak, or Not to Speak: Former President Barack Obama will reportedly accept $400,000 to speak at a health-care conference in September. Matthew Yglesias argues that rather than undermining his politics by accepting this fee, Obama should behave “with a higher degree of personal integrity” than his rivals. (Vox)
On Death Row: Arkansas gained national attention this month after the state pushed to execute eight men in April. Three of the lethal injections proceeded as planned, but four others were stopped by lawsuits. View these graphics for an update on each case. (K.K. Rebecca Lai and Jasmine C. Lee, The New York Times)
The White House Correspondents’ Dinner has been a D.C. tradition since 1921, with journalists and administration officials coming together once a year to eat, drink, and roast the current president. President Trump won’t be attending this year’s dinner, which takes place on Saturday, but he did attend the dinner in 2011, when then-President Obama made a few jokes at Trump’s expense.
What jokes or moments stand out to you from past dinners?
Send your answers to email@example.com and our favorites will be featured in Friday’s Politics & Policy Daily.