Monday, June 11, 2018 :::
A closely divided Supreme Court wrestled Wednesday with a case challenging the legality of President Trump’s travel ban, which restricts travel to the U.S. for foreign nationals from five Muslim majority countries.
This version of the story is from the Washington Examiner
The liberal justices peppered Solicitor General Noel Francisco with questions surrounding a hypothetical president suggested by Justice Elena Kagan.
A reasonable analogy, assuming that Jews in that world are disproportionately involved in terrorist attacks and calling for the destruction of the US and whatnot and that Israel is one of several Jewish countries. But I've been wondering about another analogy a little bit further afield.
Kagan posed the example of an anti-Semitic president who made derogatory comments on the campaign trail about Jewish people, which was a veiled reference to Trump’s comments about Muslims while campaigning for president in 2016.
Once assuming the presidency, under Kagan’s example, the president then asks staff to make recommendations and issues a proclamation banning people from Israel from coming to the U.S.
This is an “out-of-the-box type of president” in the hypothetical, Kagan said, before asking what a reasonable observer were to think about such an order.
Suppose a legally unsophisticated presidential candidate appealing to legally unsophisticated voters makes gun violence a key part of his platform, regularly declaring on the stump that we need to eliminate guns. Perhaps he denigrates gun owners, making a reference to their "clinging" to their guns. He gets elected, partially on this basis, and assembles his advisers to start preparing legislation banning guns.
The head of his legal team tells him, "actually, we can't ban guns altogether because of the Second Amendment."
"Really? I assumed my opponent was making that up."
"No, it's right there between the first and the third. Also the Supreme Court has ruled that it isn't just decorative, and we have to operate within that interpretation."
"I don't want to evade my constitutional duties, but I really want to prevent gun violence. It's the right thing to do, and it's part of the reason I was elected. What options do we have? Can we ban especially dangerous or scary-looking guns? Can we restrict ownership by especially dangerous people? Can we increase enforcement of laws that are already on the books to prevent dangerous people from getting guns?"
"Well, if you hadn't mentioned guns on the campaign trail, you could do any of those. Alternatively, if you had campaigned on those proposals but had added that you didn't want to ban guns altogether, they would be okay. But since you said you wanted to ban guns, you can't really do any of those. Any change you want to implement will have to be made in such a way that a court won't think your real goal is to ban guns."
Is my legal adviser off-base? Or is it true that a politician who want a policy as close to X as possible without violating the law can get a policy substantially closer to X if he knows what his constraints are?
::: posted by Steven at 11:26 AM
Sunday, March 26, 2017 :::
A somewhat common rhetorical trope among Republican politicians in the last decade has been the suggestion that certain cabinet-level departments should be closed down; insofar as this is a realistic proposition, it's not that the government wouldn't, say, safeguard its nuclear weapons, but that that would be moved to (say) the department of defense in a reorganization. Certainly it seems like the number of cabinet-level departments is rather more than you would be likely to create if you were starting from scratch, even assuming the government was going to try to do all the things it tries to do. Some changes suggest themselves going from the status quo backward — the Commerce Department and the Labor Department should probably be re-combined, with most of the Labor department however going to Justice, and putting VA under defense or HHS would make some sense (it should certainly be viewed as part of the defense budget) — but it might be worth thinking how one would start over from scratch, just as a normative guide.
The initial four departments seem like a good place to start; having some sort of Department of Justice, especially in an age without private prosecution of criminal laws, seems like a no-brainer for any sort of government. Likewise, a national government should have a Department of Speaking Softly and a Department of Carrying Big Sticks, though I think there's an argument for combining them. I'm not as confident that a Treasury department per se is as clear; if you're going to have some sort of centralized management of financing etc. in the executive branch, it might well be part of a general Department of Administration, and it's perhaps worth noting in that context that what is now the Bureau of Land Management was part of the Treasury Department until the fifth cabinet position was created, so perhaps that's how it was viewed at the time — the department that managed assets and liabilities that weren't obviously directly within the bailiwick of some other department. Going from that direction, I'm not sure I see an obvious case for a fifth department. Perhaps the "Treasury" department should be divided up somewhat by the type of asset being managed and for whom, e.g. whether it's fairly open for use by the public (highways, parks) or not.
::: posted by dWj at 1:22 PM
Monday, February 20, 2017 :::
My favorite presidents, in order:
- Benjamin Franklin (I know somebody is going to nitpick about this one, but I don't care)
- Harding, partly for scaling back the presidency post-Wilson and tarnishing it through scandal, but mostly for dying in office
- John XXIII, just to troll the anti-Catholics
- The band that performed "Lump" and "Peaches"
- Justin Amash (give it a few years)
- Jonathan Bush, who has been the president of a publicly-traded company (which I used to work for) for nearly a decade, despite his complete inability, as far as I could tell, to keep his most interesting thoughts to himself
::: posted by Steven at 11:59 PM
Thursday, January 19, 2017 :::
I consider myself a mild opponent of the death penalty. I don't consider it inherently unjust -- it may even be more just, in some cases, than the alternatives -- but I don't see that the government particularly needs this power, and I don't think the government should have powers that it doesn't need.
To reemphasize, though, I don't believe that capital punishment is always unjust, and I do think that rule of law is more important. If I were called to be on a jury for a capital crime, I might be a harder sell than some, but if it were clear to me that the defendant was guilty and that those who committed crimes like his were typically -- nearly always -- sentenced to death, it would seem wrong to me not to sentence the defendant to death. If he committed what was, reasonably, a capital offense, and he could have known it was a capital offense, he should not benefit unduly from a stroke of luck that I was seated on his jury and not someone else's. If Dylan Roof had not been sentenced to death this week, I would have to be more resolutely persuaded that the death penalty should no longer exist. If the death penalty had been banned nation-wide and Roof had been sentenced to life, I would not have a problem with that sentence. But if the death penalty is available for premeditated murder with a minor aggravating factor, how could we plausibly not apply it to someone who not only murdered nine people in cold blood but befriended them before doing it? In my mind, to let Roof live would mean either reserving capital punishment to the rarest of mass murderers and traitors or to nobody at all.
On the other hand, the one niggling idea in the back of my brain in favor of capital punishment is as a prophylactic against excessive clemency. For example, I'm not sure Saddam Hussein should have been tried by a court, as though his "crimes" fit within the jurisdiction of an impartial judiciary, but I do think he had to be hanged to allow Iraq to move forward from the despotism of a madman to... well, at least not a despotism that could ever be run again by the same madman. If a knock against capital punishment is that it can not be reversed, if applied in error, a point in favor of its rare application is that it can not be reversed. This should not be an issue in a country in which executive clemency can be reasonably expected to be unavailable to those for whom capital punishment may be warranted. I don't believe the commutation of sentence of Chelsea ("the traitor formerly known as Bradley") Manning by itself moves us from being in a country sufficiently ruled by laws that capital punishment is unnecessary to a country in which it may be necessary, but it certainly does not move us in the right direction.
UPDATE: Obviously, the same applies to the FALN terrorist.
::: posted by Steven at 12:50 AM
Saturday, December 24, 2016 :::
A scene from the TV show Bones ("The Santa in the Slush"), edited down some:
BOOTH: You got that sad little girl look on your face after you've been with your dad.
BRENNAN: He wishes we could spend Christmas together with Russ.
BOOTH: Well, do it.
BRENNAN: They're both in jail. It's impossible.
BOOTH: You know they have a trailer at the jail, mostly for conjugal visits. You can give him what he wants for Christmas. Pull a few strings.
BRENNAN: I'm not a string puller.
BOOTH: I've seen you pull some strings.
BRENNAN: My father is a murderer and a thief.
BOOTH: Well, murderers and thieves, they get Christmas too. In fact, it's kind of the point.
::: posted by Steven at 10:52 PM
Friday, November 18, 2016 :::
Some guy is collecting ideas for preventing people from believing fake news.
The one overarching point I would make is that what sources can be trusted has to be user-configurable, which could (should) include some mechanism for allowing trusted sources to vouch for other sources. I see some ideas on that list that seem worthwhile -- articles that are shared by diverse groups of people are more likely to be reliable; "a Dem flagging a site that is typically visited by more Dems gets more weight" -- but imply a single arbiter of truth. Not that those ideas are worthless -- if you are going to design a system that allows for each user to select an arbiter (or a combination of arbiters), it's certainly worth designing at least one to start with. But expecting right-wing nuts and left-wing nuts and everyone else to accept the same arbiter seems more naive to me than allowing people to sign up with arbiters from their "team" and expecting that the junkiest junk will be flagged by left-wing arbiters and right-wing arbiters alike.
We can learn something from the fact-check genre of journalism here. Most fact-checking stories seem to me to consist of articles generally adding context to the "fact" being checked, with a verdict in the headline. The articles are generally full of indisputable (or nearly so) facts, but the verdict is often very disputable or even clearly wrong. When the verdict is correct, the article generally provides crucial context; when the verdict is wrong, the article goes off on a tangent with what the author seems to think is relevant context but which seems to me to be interesting color at best. I advise people to ignore the verdicts but read the articles.
An example that particularly sticks with me is when Politifact responded to National Review's Kevin Williamson's point that some dubious forms of medicine, such as gay-conversion therapy, are prohibited by states, while other dubious forms of medicine are subsidized by the Affordable Care Act. The Politifact writer rated his statement "half true," dwelling on the fact that the amount of money spent on the dubious therapies cited by Williamson is not terribly large in the grand scheme of things. It struck me that if Williamson had written a column about homeopathy saying, "here's a great way to cut the federal budget deficit," a verdict of "half true" would have been, if anything, generous, but given that his point was that fringe medicine can be either prohibited or subsidized by the state for purely political reasons, his assertion was the 100% unadulterated truth.
Sometimes, complete falsehoods float around, either as unrecognized satire or as deliberate deceit, and those do seem to be getting more common. But political and commercial advertisers are more likely to bend the truth than to break it. I think fact-checking organizations should recognize this by using non-linear scales for their verdicts - they shouldn't just say how true or false something is, they ought to be able to say, "literally true, but misleading" or "literally false, but substantially true" or "true, if you understand the following context." I'm not sure a Facebook feature can do better than show or ignore a website; a browser plug-in might reasonably signal a little bit more. But improving the information environment of the Internet depends mostly on filtering out the completely fabricated, and the only way to get a partisan to believe that something is completely fabricated is to get someone on their team to declare it unreliable.
Labels: fact checking, Kevin Williamson, media distortion, Politifact
::: posted by Steven at 12:55 AM
Sunday, November 13, 2016 :::
I'm inclined to think that protesting the results of an election is tacky. A protest is, in my mind, a means of getting attention for a cause that you think needs more attention or, if the issue has attention, at least making it clear that your position is not unpopular. When the populace has just been polled -- not a sample, mind you, but anyone* with the wherewithal to register and vote -- taking the streets to say, "yes, our opinions have all been weighed, but you guys don't understand that mine is really important" seems particularly narcissistic. I want to emphasize that I used the word "tacky" rather than, say, "reprehensible" or "unconscionable" or "should be illegal" or "basically the same as rioting over the results of an election." I'm not saying that the people protesting (without destroying things or blocking traffic) are anywhere near as bad as Donald Trump or Hillary Clinton, but I have trouble interpreting their purpose as anything other than "my opinion is more important than that of other voters." Perhaps some of them have demands other than "you don't understand; I really, really vote for Clinton," but if they do, it has been lost on me.
If you pay attention to my twitter feed (or the penultimate sentence of the previous paragraph), you know that I didn't care for either major party candidate. Through the election, I considered myself part of team NeverTrump, and I voted for Evan McMullin because I expected that vote to be interpreted to mean that I would have voted for pretty much any Republican other than the one on the ballot. I regard Trump as garbage wrapped in unusually thin skin.
That said, Trump won the election -- no recount will be necessary. I have switched from team NeverTrump to team Trump Gets His Chance. I don't expect to ever regard him as a decent human being, but I think he ought to have a chance to put a team together and demonstrate what he is actually going to do in office. If people want to protest specific policies at that point, I will fully understand.
*Children, felons, and immigrants-not-yet-citizens excepted, of course, but I don't think those have dominated the protests.
::: posted by Steven at 12:49 AM