Quick hits (part I)

1) Seth Masket on the intentional cruelty of zero-tolerance on immigration:

But on immigration he’s been entirely consistent. If there was one defining issue of Trump’s 2016 campaign, it was his insistence on building a wall along the United States’ southern border with Mexico. He’s promised since early in his campaign to stem immigration by Mexicans and Muslims, to deport undocumented immigrants en masse, to bolster the number of Immigration and Customs Enforcement agents, and to end the Deferred Action for Childhood Arrivals program. The idea of an immigration crackdown has always been central to his policymaking.

Even the most vapid politician tends to have some key conviction on some set of issues. That’s often what draws them a set of backers in the first place. And this conviction is not necessarily something that polls well. The party factions that back a candidate often want some set of policy changes that are actually unpopular, or ideally issues that the public mostly doesn’t pay attention to. And they’re looking for a candidate who will push for those issues even if the political tides change.

Trump remains an ideal carrier for the message of zero tolerance toward immigrants of color. He has proven time and again that he’ll push that message even if it hurts his standings in the polls or invites pushback from the media or his fellow Republicans. His tactical retreat on the issue last week appears not to have much substance behind it, or it at least to be so contradictory that no one knows how to implement it. And regardless, more than 2,000 children remain in cages without access to their parents, with no clear plan to remedy that situation.

This was not a miscalculation. This is Trump doing the job he was selected to do.

2) I’m going to keep using straws, because I am generally, quite good about plastic, and its not really about the straw.

Several environmental organizations have made straw bans a priority lately — raising awareness, nudging celebrities to come out in favor of them, lobbying cities and states to enact them. But some advocates told me their deeper motivation is to build support and awareness for the need to ban other plastic products that are more significant sources of plastic solution than straws.

“Our straw campaign is not really about straws,” said Dune Ives, the executive director of Lonely Whale, the organization that led the straw ban movement in Seattle. “It’s about pointing out how prevalent single-use plastics are in our lives. Putting up a mirror to hold us accountable. We’ve all been asleep at the wheel.”

3) Brian Beutler on Trump’s lessons for Democrats:

The lessons of Obama’s immigration legacy—and of his legislative legacy in general—were clear to many liberals at the time, but have come into greater focus in the Trump era. And one of the principal lessons is this: It is a mistake to cause harm as a dangle for bipartisan support. Democrats today, and in any future majority, would do better to accept the nature of the opposition, and try to help as many people as possible, as much as possible, in any particular political moment…

This same lesson applies elsewhere in the realm of domestic policy. Democrats wasted most of a year in 2009 trying to entice Republicans to support health-care reform. They conceded substantive ideas they liked, and adopted Republican ideas, without realizing Republicans were stringing them along, and when the process was over, zero Republicans voted for the health care bill they had helped to weaken, and they called it “socialism” anyhow. One of the consequences of this error was higher premiums and deductibles, which harmed actual people, some of whom surely punished Democrats in 2016 by staying home, or voting for Trump, who turned around and sabotaged the Affordable Care Act.

Democrats can upend this vicious cycle. It’s important for people who care about the truth to rebut these lies, but Democrats can’t count on people who don’t care about truth to be deterred by fact-checking. All they can do is refuse to reward liars—accept what they’re up against, and do as much good as they have the power to do whenever they can.

4) Jay Rosen, “It’s time for the press to suspend normal relations with the Trump presidency.”

5) As you know, I’m pretty hesitant on four-letter words, but John McWhorter (via Conor Friedersdorf) makes a good case for change here:

He sees taboos against the familiar four-letter words, like damn, shit, and fuck, as antiquated vestiges of bygone times when religious taboos, or taboos against sex and excretion, were utterly different than they are today—they make little sense, he argues, in a society where it’s perfectly acceptable to be an open atheist and where many people revel in body positivity and sex positivity. The taboo words make no sense given the dearth of substantive taboos around that to which they refer. For that reason, he refuses to teach his young daughter that it is wrong to say “shit” but okay to say “poop,” or that it is wrong to say “fuck,” though he explains that she should understand the lingering sensitivities of others to those words and take care when and where to use them.

In contrast, he argued, today’s truly profane words—and rightly so—are the n-word and the c-word, words where he is glad to see locutions like the ones I just used because he can make a strong logical and moral case for using them. “That is not something you want The New York Times to have on top of the page. I wouldn’t want my children to ask me what it is. I can’t be flippant about it,” he explained. “I’m telling my children that those words are profane. Why can’t you use them? Because they’re evil … The reason we don’t say those words is that we don’t slur against groups of people … You work against tribalism.”

6) With all the news this week, the Supreme Court finding for AmEx and ever-greater corporate power was pretty much completely ignored.  But it is a great example of the essentially pro-business (not pro-market) ideology that motivates so many conservatives.  Tim Wu:

There is no reason to expect credit card companies to offer their services free. But the credit card tax paid by American retailers and consumers is the highest in the world. Credit card “swipe” fees account for an estimated $42 billion every year in the United States. The Europeans pay less, because they see this as an obvious market failure and limit the commission to 0.3 percent, meaning that you would pay 60 cents instead of $7 in fees for that $200 purchase. We rely on the “American way” — competition instead of regulation to keep prices lower — but that works only if we prevent companies from thwarting competition.

Unfortunately, credit card companies like American Express have managed to stymie fee competition with those gag orders on merchants who contract with them. Merchants are prevented from steering consumers to cheaper options, for example by saying to a customer: “Paying for this microwave with American Express will cost us an extra $5.60. Might you consider using another card if you have one?”

If merchants could tell us which option was cheapest, and steer us in that direction, we would all save money. Even just the threat of steering us in that direction could help keep fees down.

The trial court in this case, after a full trial, found direct evidence that American Express’s gag orders were anticompetitive and thus an illegal restraint on trade. This included evidence that the gag order allowed American Express to raise its fees 20 times in five years.

Nonetheless, the five more conservative justices on the Supreme Court managed to find a way to win this case for American Express. They did so not by contesting the fact that the gag order stymies competition — for that was impossible to disprove. Instead the court put theory ahead of practice in an absurd way: Even though, in practice, American Express hurt competition and inflicted harm on consumers, the court concluded, the company was not, in theory, powerful enough to do so.

The logic is ridiculous: You could just as easily say that robbing banks is economically irrational, given the risks involved, and therefore it does not happen.

7) Love how Emily Yoffe is always willing to take on shibboleths about sexual misconduct.  Of course, sexual misconduct is also about sex, and not just power, yet you’d hardly know it by the statements coming from some quarters.  Really good piece on Weinstein, et al.

8) Thomas Edsall on how immigration opponents really hate being told they are racist.  Problem is, plenty of social science evidence indicates that much of immigration opposition is, in fact, driven by racial animus.

9) Lily Mason turned her nice tweetstorm on asymmetry and incivility into a Monkey Cage post.

10) Jennifer Rubin, on Trump’s losing battle on immigration:

While Democrats have become more enthusiastic about legal immigration, so have Republicans, albeit to a smaller extent. “The share of Democrats and Democratic-leaning independents who say legal immigration into the U.S. should be increased has doubled since 2006, from 20% to 40%. . . . The share of Republicans and Republican leaners who say legal immigration should be decreased has fallen 10 percentage points since 2006, from 43% to 33%.” However, 33 percent of Republicans vs. 16 percent of Democrats favor reducing legal immigration.

This is remarkable, given the stunning ignorance about the relative number of illegal and legal immigrants. (“Just 45% of Americans say that most immigrants living in the U.S. are here legally; 35% say most immigrants are in the country illegally, while 6% volunteer that about half are here legally and half illegally and 13% say they don’t know. In 2015, the most recent year for which data are available, lawful immigrants accounted for about three-quarters of the foreign-born population in the United States.”) Still, 69 percent are somewhat or very sympathetic toward illegal immigrants, while just “27% of Americans say that giving people who are in the U.S. illegally a way to gain legal status is like rewarding them for doing something wrong. More than twice as many (67%) say they don’t think of it this way. Since 2015, the share saying that providing legal status for those in the U.S. illegally is akin to a ‘reward’ for doing something wrong has declined 9 percentage points.”

Despite Trump’s persistent lying, most Americans “know documented immigrants living in the U.S. are not more likely than U.S. citizens to commit serious crimes (65% say this) and that undocumented immigrants mostly fill jobs citizens don’t want (71% say this).” That’s somewhat reassuring after two years of nonstop anti-immigrant harangues…

One area in which nervous politicians and pundits sympathetic to immigration have given ground to opponents is on the use of English. Well, ordinary Americans just don’t like hearing all that Spanish. Perhaps pro-immigrant voices should reassess their eagerness to indulge xenophobes. “Most Americans say they often (47%) or sometimes (27%) come into contact with immigrants who speak little or no English. Among those who say this, just 26% say it bothers them, while 73% say it does not. The share saying they are bothered by immigrants speaking little or no English has declined by 12 percentage points since 2006 (from 38% to 26%) and 19 points since 1993 (from 45%).”

Let me offer some informed speculation as to why the outlook of most Americans so strongly differs from Trump’s and Trump’s base and why Americans as a whole are becoming more sympathetic toward immigrants. Many of Trump’s red-state supporters, as I have observed, come from states with a minuscule number of illegal immigrants. They’ve decided that these people are dangerous and are out to steal their jobs, based on very little firsthand experience. In 2016, Pew found that in states such as Kansas and South Carolina, the number of illegal immigrants was quite small and shrinking (95,o00 in 2009 to 75,000 in 2009 in Kansas, out of a population of nearly 3 million; 100,000 to 85,0000 in South Carolina, out of a population of more than 4.8 million.) In Attorney General Jeff Sessions’s home state of Alabama, the number went from 80,000 to 65,000 — out of more than 4 million people. In short, much but not all of the staunch opposition to both legal and illegal immigration comes from less-populated, rural states with few immigrants.

By contrast, in states with huge illegal-immigrant populations, which have become part of the fabric of society (California, New York, New Jersey, Illinois), the attitude toward immigrants is positive, and becoming more so as more Americans interact, work and live with immigrants — and intermarry as well. Even in Texas, where Republican politicians remain obsessed with deportation, “Three-fifths of the registered voters surveyed in the poll said they would continue the Deferred Action for Childhood Arrivals, or DACA, program. Just 30 percent said the program should end.” (You may recall that Republicans along the border disfavored the wall.)

In sum, the country’s overall view of immigrants and even illegal immigrants is improving since a high percentage of Americans live in heavily populated states with large numbers of immigrants (both legal and illegal). As a percentage of the population (and thereby reflected in the polls). more people are having experience with more and more immigrants; it has changed their view of these Americans.

Trump’s base and the GOP is disproportionately rural and therefore comes in contact far less frequently with actual immigrants. They’re content to blame immigrants — or are riled up to do so by Trump — for social and economic woes that may have in reality virtually nothing to do with immigrants. The population in these states is declining, and with that the number of rabid anti-immigrant voters, although their intensity is soaring.

11) The rise of college grade forgiveness in the Atlantic.  I remember several years ago NC State made it absurdly easy to just remove a single bad grade or two from your transcript (the earlier, far more sensible policy, required a re-take of a bad grade you earned as a freshman).  Now we just let you drop two bad grades, because…?

12) Nice interview with no-longer-Republican, Steve Schmidt.

13) “Abolish ICE” has hit a critical point.  It is definitely no longer a fringe position (and deservedly so).  Brian Beutler:

“Abolish ICE” is catching on because of a widespread and accurate belief that it’s a cruel, rogue agency. And even if the goal of actually abolishing the agency goes unmet, a party unified in hostility to a government agency can have a huge impact on its functioning. Republicans have channeled their antipathy towards the IRS into starving the agency of funds, which has had a huge impact on the agency’s ability to enforce tax law. A tamed ICE that wasn’t engaged in mass raids and deportations would be an improvement over what we’ve got now.

14) Just this week, my son and I were talking about how athletic performance declines with age.  I thought peak was mid-20’s, it’s actually early 20’s.  Though baseball-specific, this is a fascinating look at the issue.  And how experience counter-acts physical decline, to a degree.

15) Recently read Theory of Bastards and really enjoyed.  Nothing like near-future bonobo fiction.

16) Pretty unsurprisingly, both Democrats and Republicans are pretty awful at estimating the actual demographics of the other party (and, I suspect, innumeracy is a huge part of this).  For what it’s worth, I was within a couple percent in my estimates of all of these.

17) This article argues that you really cannot trust negative on-line reviews.  Actually, I think they can be really helpful.  If the only negative reviews, for example, are from people who clearly have not even figured out how to properly use the product, than you are onto something.  On a related note, really enjoyed this Planet Money about fake positive reviews.  Been having a lot of fun with reviewmeta since.

18) Of course Trump’s economic adviser Larry Kudlow is egregiously lying to the American public about deficits.

19) How our brains fall for false expertise.  And how to stop it.

20) Paul Waldman, “No, Ocasio-Cortez’s victory isn’t bad for the Democratic Party.”

21) Who are you pulling for in the World Cup?  My favorites are Belgium and Mexico.

Real support for our military

Finally got around to reading Phil Klay’s terrific article about America’s misguided relationship with our military in last month’s Atlantic.  So good.  Read it!  And, I can’t mention Klay without again highly recommending probably my favorite story collection ever, his Redployment.

So while America as a whole chooses to express its love for its military in gooey, substance-free displays, our military waits, perhaps hopelessly, for a coherent national policy that takes the country’s wars seriously.

What would such a thing look like? It would probably look like rescinding the open-ended Authorization for the Use of Military Force and making the president regularly go before Congress to explain where and why he was putting troops in harm’s way, what resources the mission required, and what the terms of success were. It would look like every member of Congress carrying out his or her constitutionally mandated duty to provide oversight of our military adventures by debating and then voting on that plan. It would look like average Americans taking part in that debate, and scorning anyone who tried to tell them they couldn’t. It would look like average Americans rolling their eyes in disgust when our leaders tell us we’re not at war while American troops are risking their lives overseas, or claim that Americans must support the wars their country engages in if they want to support the troops, or when a press secretary argues that anyone who questions the success of a military raid in which a service member died “owes an apology” to that fallen soldier. It would look like our politicians letting the fallen rest in peace, rather than propping up their corpses for political cover. And when service members die overseas in unexpected places, such as the four killed in Niger last year, it would look like us eschewing the easy symbolic debates about whether our president is disrespecting our troops by inartfully offering condolences or whether liberals are disrespecting our troops by seizing upon those inartful condolences for political gain. It would look like us instead having a longer and harder conversation about the mission we are asking soldiers to perform, and whether we are doing them the honor of making sure it’s achievable.

In short, it would look like Americans as a whole doling out a lot fewer cheap, sentimental displays of love for our troops, and doubling down on something closer to Gunny Maxwell’s “tough love”—a love that means zeroing in on our country’s faults and failures.

Photo of the day

Atlantic with a nice “fans of the World Cup” gallery.  Pretty tough for Germany fans on Wednesday.

Germany fans react as they watch the South Korea versus Germany Group F World Cup match at a public viewing area at Brandenburg Gate in Berlin, Germany, on June 27, 2018. South Korea won the match 2-0. #

Hannibal Hanschke / Reuters

Zero-sum white supremacy

So, I was just going to do a short post linking to this chart from a recent Pew survey and highlighting utter delusion of Republicans when it comes to the reality of life in America:

I suppose you could make the case that “everyone has an equal opportunity to succeed” but not using definitions of”everyone” “equal” “opportunity” or “succeed” that I’m familiar with.  And if you think the rights of all people are equally respected, you presumably get all your news from Fox.

Anyway, I think this dovetails very nicely with a Salon article by Chauncey Devega my wife pointed out to me which analyzes Republican racial attitudes in a zero sum perspective:

Against all facts and evidence, matters have become so absurd in the age of Donald Trump that almost half of white Americans actually believe that they are more likely to be victims of racism than are black and brown people.  Moreover, Donald Trump and the Republican Party’s voters are so drunk on white victimology that they think that it is white people and not nonwhites who are the “real victims” of racial discrimination in America.

All of these delusions revolve around a basic contradiction: Many white Americans have convinced themselves that black and brown people exaggerate, are too sensitive, and outright lie about their experiences as victims of racism and white privilege. Yet, this racism — which according to the white gaze does not really exist except in extreme forms such as the Ku Klux Klan and neo-Nazis — somehow does exist but manifests itself in the form of so-called “reverse racism” against white people… [emphases mine]

In the United States, black Americans and other people of color have only wanted full and equal rights with white Americans. For example, from the Civil War to the great experiment in democracy that was the Reconstruction, black Americans worked very hard to expand opportunities for all people, including poor and working class whites. This dynamic continues into the present where public opinion polls show that black and brown Americans consistently support policies which would expand the social safety net, civil rights and economic justice and opportunity for the average American — on both sides of the color line. Black and brown people are also on the frontlines of saving American democracy from the fascism and authoritarianism of Donald Trump and the Republican Party.

Black (and brown) Americans, as a group, have never sought to retaliate against white Americans — even when such an act and desire would have been perfectly reasonable, just and yes, moral. But there are millions of white Americans in Trump’s camp, and also outside of it, who are terrified that with increasing racial and ethnic diversity they will be victims of racially-motivated revenge and violence. This makes these millions of white voters easily manipulated by racist demagogues who use political sadism to stab at the worst parts of human nature. In response, it will require a united front of black and brown and white folks to save the United States from Donald Trump and the Republican Party’s fascist and authoritarian campaign against democracy. Unfortunately, too many white Americans would rather live under an authoritarian regime that supposedly empowers white people like them than a real democracy which provides equal opportunities for all people.

Now, of course this is not all Republicans and Trump supporters.  But, the evidence is clear that a distressingly high number of them are truly animated by racial animus and literally delusional racial thinking.  And our country is so much the worse for it.  And for those other Republicans, they should suck it up and vote for Democrats until their party actually abandons authoritarianism and white ethnocentrism.

Craziness from not quite Republican state legislator

No, not crazy Republican state legislator, but this guy did manage to get the nomination in NC 48, which appears to be a safe Democratic seat.  Pretty, pretty amazing:

A website tied to a candidate for the North Carolina General Assembly says God is a racist white supremacist and that Jews are descended from Satan.

Russell Walker is a Republican candidate running for state House District 48 which includes Scotland and Hoke counties.

On Tuesday, the North Carolina Republican Party withdrew its support for Walker…

Walker did not immediately respond to requests for comment on Wednesday.

“What is wrong with being a white supremacist? God is a racist and a white supremacist,” the website connected to Walker says.

“Someone or group has to be supreme and that group is the whites of the world … someone or something has to be inferior … In all history in sub-Saharan Africa, no two-story building or a waterproof boat was ever made.”

Walker has authored multiple essays and other articles on the site and has said it belongs to him.

The reporter I talked to today said if you did around the website, it’s even worse.  Yes, credit to Republicans for disavowing him, but that’s a pretty low bar.  Does this guy successfully run and win a nomination pre-Trump?  Maybe, but I think far less likely.  Here’s the news story where you get 5 seconds of me and my office.  (And look, I put a tie on (just for 5 minutes) during the summer.

 

You didn’t post this!

Hey i haven’t posted this yet but if you feel like it put this on your blog.

-Your Son Evan

[My 12-year old son has become somewhat obsessed with writing in my blog editor window when I leave it open on my laptop.  I think he’ll be very happy to see that I actually did post this.  Now, I’m going to have to get him to write something with more content.]

Republicans are great for the economy!

Kidding!  A break from Anthony Kennedy and the Supreme Court for this helpful reminder.

Drum:

For the past 40 years, the Republican playbook has been straightforward: they take office, cut taxes on the rich, and run up the national debt. Each time, Democrats have dutifully cleaned up their messes, only to watch them retake power and use the newly cleaned-up budget as yet another excuse to cut taxes on the rich and run up the national debt. Now Donald Trump has done it:

Needless to say, each time this happens Republicans start issuing dire warnings about the evils of a rising national debt as soon as the tax cut has passed. You’d think people would start cottoning to this eventually, but so far the con just keeps working. I wonder how much longer they can pull it off?

Very preliminary Anthony Kennedy thoughts

Thought for once I’d share my thoughts before seeing what everybody else’s are.

1) This doesn’t change things quite as much as people think.  On about 90% of issues, Kennedy is a doctrinaire conservative.  He’s basically a conservative with a soft-spot for gays rights and bare minimum abortion rights.  Now, those are important issues, but all those 5-4 votes we just had– those don’t change.

2) The fact that Trump will look to appoint a nominee who will overturn Roe and Obergefell is huge.  The simple fact is the right to a legal abortion (in most of red America) and the right to same-sex marriage is absolutely at risk.

3) #2 presents a huge electoral advantage for Democrats.  I think there’s a lot of people who aren’t so pro-life when you start talking about taking away Roe v. Wade.

Likewise, many will be especially politically activated at the idea of the Supreme Court taking away the right to same-sex marriage.  Meanwhile, Trump will be under huge pressure from his Christianist base to appoint a judge who will do just these things.

4) Given the theft of a Supreme Court seat for Neil Gorsuch, I’m honestly in favor of Democrats taking pretty much any historically unprecedented action that makes this harder for Trump.

The asymmetry of “civility”

Normally, I just save good twitter threads for quick hits, but this twitter thread is too good so I want to make sure you don’t miss it.  Political Scientists Lilliana Mason on how the roots of Republicans obsession with being outraged by liberals lie in the fact that the Republican party is the identity politics party– the white identity politics party.  Just read it:

There needs to be an honest conversation about asymmetric expectations of civility. (Thread) https://t.co/8QnOwfwfjN

— Lilliana Mason (@LilyMasonPhD) June 26, 2018

It’s okay to discriminate against Muslims

as long as you pretend you are not.  Or so say the Supreme Court’s conservatives when it comes to the travel ban.  If you learn one thing about politics this week, you need to understand how epically awful the 5 conservatives’ decision was in Hawaii v. Trump.  It truly did essentially say to the U.S government, discriminate all you want, provided you 1) claim that your actions are motivated by national security, and 2) don’t specifically mention the people you are discriminating against.  A horrid decision that, I truly believe will go down in infamy.  Lots of great analysis.

Scott Lemieux:

The Court has never held, however, that the deference owed to the president over national security was absolute. Indeed, in a protesting-too-much conclusion to his desultory opinion, Chief Justice Roberts acknowledges that the Court’s upholding of FDR’s internment of people of Japanese descent in Korematsu v. United States “was gravely wrong the day it was decided, has been overruled in the court of history.” Even the context of world war, the chief justice acknowledges, should not immunize presidential actions taken out of racial or religious animus from judicial scrutiny.

These words, however, ring hollow in light of the Court’s approval of an order plainly motivated by anti-religious bias and — contrary to the majority’s assertion — justified by national security pretexts that are far from “persuasive.” As Justice Sotomayor says in a powerful dissent joined by Justice Ruth Bader Ginsburg, “By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.” The Court’s apparent conclusion that the Court can serve as a check on racial and religious animus in the name of foreign security several decades in retrospect but not contemporaneously is cold comfort indeed… [emphases mine]

But — as the chief justice’s condemnation of Korematsu makes plain — it’s simply not true that the president’s order must be “free from judicial scrutiny” just because it has an alleged security justification. The Constitution remains in force; alleged national security concerns do not make constitutional an executive order motivated by religious animus. Like Justice Felix Frankfurter’s claim in Korematsu that the racist order upheld by the Court was “their business, not ours,” this is unconscionable buck-passing that will not withstand historical scrutiny.

Aziz Huq:

Three times in American history, the Supreme Court has been asked to speak to a law, neutral on its face, yet rooted in a popular hatred or intolerance of minorities. Three times, it has chosen to ignore the real reasons for the law.

Three times, it has instead given a free pass to laws and policies predicated on discriminatory judgments that our Constitution supposedly bars.

The first was Plessy v. Ferguson. In 1896, the Plessy Court upheld Homer Plessy’s conviction under Louisiana’s law mandating “equal but separate” railroad carriages. The central plank of the Court’s argument was simple: If Homer Plessy experienced a “badge of inferiority,” it was “not by reason of anything found in the act,” but “solely” because he chose to view the law that way.

The second was Korematsu v. United States ­ — the Japanese internment camp case. Famously, the caseupheld in 1944 an executive order by President Franklin Roosevelt, authorizing “military areas … from which any or all persons may be excluded.” The Court reviewed “evidence” that Congress had gathered about the Japanese government’s “dissemination of propaganda and … maintenance of … influence” among Japanese Americans.

It carefully framed its Korematsu opinion as focused on a policy of “exclusion,” ignoring the network of civilian assembly centers and “relocation” camps — as the internment camps were euphemistically known — that ultimately held between 110,000 and 120,000 people.

The Court expressly refused to look beyond these proffered justifications — justifications that in the fullness of time were revealed as false…

The third case, of course, is Hawaii v. Trump. In upholding the president’s travel ban, both Chief Justice John Roberts’s bare majority opinion and Justice Anthony Kennedy’s concurring opinion go out of their way to reject the suggestion that religious animus motivated the ban, and they distance the Court from President Donald Trump’s many hateful and discriminatory statements about Muslims.

The majority opinion quoted a few, brief snippets of the president’s anti-Muslim remarks. But it was left to Justice Sonia Sotomayor, in her dissent, to remind us of just how numerous and nasty those remarks were. She noted, among other examples, Trump’s recurring obsession with the massacre of Muslims in the Philippines by Gen. John J. Pershing, in the early 1900s.

Trump at least twice approvingly repeated the apocryphal story that Pershing’s troops used bullets dipped in pigs’ blood as they executed Philippine insurgents. (The theme of no due process for racial and religious minorities is hard to miss).

The justices’ assertion that the president’s words do not reflect the religious neutrality of the policy, as written, is empty. The logical core of the travel ban decision is the idea that the government prevails in a national security case so long as it can muster some — any — trace of evidence of a legitimate motive. So long as a policy is “plausibly related to the Government’s stated objective to protect the country,” Chief Justice Roberts explained, it survives constitutional attack…

If that’s true, the courts are toothless as a check on discrimination. Court challenges are then Kabuki theater, not a quest for compliance with our best ideals. The world is complex enough, and empirically messy enough, that it will simply always be possible for governments to whip up a “rational” justification for illegitimate acts, even if the true motivations are quite different. I can imagine almost no national security or immigration policy, even if justified to the public in terms of pure animus, and adopted in that spirit, that could not be re-described in way that would pass the test the Supreme Court just used.

Dana Milbank:

Renouncing the 1944 Korematsu v. United States decision, which upheld internment camps for U.S. citizens and noncitizens of Japanese descent during World War II, Chief Justice John G. Roberts Jr. wrote: “Korematsuwas gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitu­tion.’ ”

It should take the court of history much less time to conclude that the Roberts Court was likewise wrong in deciding to uphold President Trump’s travel ban. With the frequency of Trump’s broadsides against the justice system and the rule of law, it shouldn’t be long at all…

The legal test was whether a “reasonable observer” would think the travel ban reflected religious bias. Roberts believed not, because “the text says nothing about religion” and Trump’s order “is facially neutral toward religion.” He dismissed the many anti-Muslim statements Trump has madeas “extrinsic statements.”

Extrinsic?

“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on,” the Trump campaign proclaimed…

This 5-to-4 conservative majority says the travel ban isn’t discriminatory because it doesn’t use the word “Muslim.”

By the same logic, the hypothetical mentioned in arguments by Justice Elena Kagan would be kosher: An anti-Semitic president could ban all Israelis from entering the United States, if he didn’t use the word “Jews.”

If the court applied the same “facially neutral” standard to segregation-era laws (rather than intent and impact), cities could ban people in black-majority neighborhoods from riding the bus, if the statute didn’t mention race.

Dara Lind:

By upholding President Donald Trump’s travel ban (in its third iteration) in Trump v. Hawaii on Tuesday, the Supreme Court did Trump an enormous favor: It pretended he didn’t exist.

Chief Justice John Roberts’s majority opinion (signed onto by the Court’s three other conservatives and “swing vote” Anthony Kennedy) is a clear declaration that the executive branch had the legal power to indefinitely restrict certain visa holders and immigrants from several countries, as the current travel ban (signed in September) has done since it was allowed to go into effect in December. The opinion scrupulously avoids any defense of Donald Trump, as an individual, in deciding to order such a policy.

But by ignoring Trump, the Supreme Court has sent a different message: that nothing Trump is doing is more damaging to the presidency than what the Supreme Court would do if it tried to restrain him…

It’s hard to overstate the extent to which Roberts’s majority opinion talks about the presidency as if it’s not currently being occupied by any human at all — or, at least, not by Donald J. Trump, a president who has personally attacked several members of the federal judiciary and was last seen mocking the idea of using “judges and court cases” to help process immigrants who enter the US illegally.

On one hand, Roberts (per usual) deferred to the past: Supreme Court precedents that give the executive branch broad authority not just to set policy when it comes to immigration, but to shield that policy from judicial review…

The other way that Roberts wrote an opinion upholding Trump’s policy as if Trump wasn’t involved was by assuming that, frankly, Trump wasn’t.

Roberts’s opinion, following the cue of Solicitor General Noel Francisco (who argued for the travel ban at oral argument for the case in April), relied heavily on the idea that the current version of the travel ban wasn’t Donald Trump’s policy, but instead “reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”

Because that policy process was normal, Roberts ruled, the Court lacked the authority to plumb too deep into what might have motivated Trump to ask for the process. The bureaucracy cleansed the travel ban of its Islamophobic “taint.”

Adam Serwer on John Roberts:

For years, Chief Justice John Roberts has been concerned with the question of prejudice. But it’s not bigotry toward his fellow Americans that has occupied his thoughts—it’s attempts to address the bigotry.

As a young attorney in the Reagan Justice Department, Roberts wrote that amending the Voting Rights Act of 1965 to ban practices that had the effect of discriminating against black voters, and not just those that exhibited such intent, raised “grave constitutional questions.” As chief justice, Roberts asked during oral arguments over Section 5 of  the Voting Rights Act, which targeted states with a demonstrated record of discrimination for heightened review, “Is it the government’s submission that the citizens of the South are more racist than the citizens of the North?” It wasn’t the history of disenfranchising Americans on the basis of race that provoked the chief justice; it was the suggestion that ongoing policies that result in lower rates of black voting might be racist…

Bigotry exists. But laws that secure people’s rights against that bigotry are what have occupied Roberts’s concern.

Roberts’s approach to the question of prejudice was perhaps best articulated in his 2007 opinion striking down school-desegregation plans that consider race, in which he wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” As long as there is no clear evidence of an intent to discriminate, Roberts argued, discrimination has not taken place, no matter how obvious the impact. But if you acknowledge that a group is being discriminated against and extend it protections or benefits in the process of trying to address that discrimination, that is the real racism. Roberts’s jurisprudence puts into the polite language of the law the belief that accusations of prejudice are worse than prejudice itself.

A brief big picture take from Lemieux:

Today’s 5-4 Heritage Foundation position papers from the Supreme Court:

• It is probably unconstitutional to make “crisis pregnancy centers” provide information about abortion, although it is definitely constitutional to make doctors read pro-life propaganda before a woman can obtain an abortion.
• Despite the extensive evidence provided by Donald Trump’s own statements, the travel ban issued by Our President is probably constitutional. Please ignore that we found far weaker evidence of animus dispositive in Masterpiece Cakeshop earlier this month. 

More on both later, but this is a ridiculously hacky and partisan court, and the fact that Republicans have maintained control of the Supreme Court despite losing the popular vote in 6 out of 7 presidential elections has been immensely significant. It’s Donald Trump’s Court all the way.

And, just because, here’s a Yale law professor arguing that the Court decided the case correctly.  I think it is the best case that the Court decided correctly, but it doesn’t take a law professor to see that this logic far too easily can lead to a series of discriminatory outcomes whenever the government proclaims “national security!”

More immigrants, please

Good stuff from Brett Stephens and John Cassidy last week.  The reality is that we need more immigrants.  While Donald Trump and friends are busy trying to scare everyone and reduce all immigration because… brown people, the reality is our national demographics and our economy really need us to have more immigration.

Stephens:

We could use some more people. Make that a lot more.

That’s a point worth bearing in mind in the larger immigration debate unfolding in Congress. The Trump administration’s policy of forcibly separating migrant Latin American children from their parents was a moral outrage that, had it not been belatedly terminated on Wednesday, would have taken its place in the annals of American ignominy…

Consider some facts.

First: The U.S. fertility rate has fallen to a record low. In May, The Times reported that women “had nearly 500,000 fewer babies than in 2007, despite the fact that there were an estimated 7 percent more women in their prime childbearing years.” That’s a harbinger of long-term, Japanese-style economic decline.

Second: Americans are getting older. In 2010 there were more than 40 million Americans over the age of 65. By 2050 the number will be closer to 90 million, or an estimated 22.1 percent of the population. That won’t be as catastrophic as Japan, where 40.1 percent of people will be over 65. But remember: We’ve only avoided Japan’s demographic fate so far by resisting its longstanding anti-immigration policies.

Third: The Federal Reserve has reported labor shortages in multiple industries throughout the country. That inhibits business growth. Nor are the shortages only a matter of missing “skills”: The New American Economy think tank estimates that the number of farm workers fell by 20 percent between 2002 and 2014, accounting for $3 billion a year in revenue losses.

Fourth: Much of rural or small-town America is emptying out. In hundreds of rural counties, more people are dying than are being born, according to the Department of Agriculture. The same Trumpian conservatives who claim to want to save the American heartland from the fabled Latin American Horde are guaranteeing conditions that over time will turn the heartland into a wasteland.

Fifth: The immigrant share (including the undocumented) of the U.S. population is not especially large: About 13.5 percent, high by recent history but below its late 19th century peak of 14.8 percent. In Israel, the share is 22.6 percent; in Australia, 27.7 percent, according to O.E.C.D. data, another indicator of the powerful correlation between high levels of immigration and sustained economic dynamism.

Finally, immigrants — legal or otherwise — make better citizens than native-born Americans. More entrepreneurial. More church-going. Less likely to have kids out of wedlock. Far less likely to commit crime. These are the kind of attributes Republicans claim to admire.

Or at least they used to, before they became the party of Trump — of his nativism, demagoguery, and penchant for capricious cruelty. [emphasis mine]

And Cassidy:

The easiest way to grasp the seriousness of what is happening is to look at the fertility rate, which is the average number of babies born to mothers between the ages of fifteen and forty-four. Merely to replace the existing population, the fertility rate needs to be about 2.1 per cent. During the baby-boomer years, it reached 3.7 per cent. In 2017, it was just 1.76 per cent. If this trend persists, as it seems likely to do, it portends a declining population and a sharply rising dependency ratio…

The final option is to welcome more immigrants, particularly younger immigrants, so that, in the coming decades, they and their descendants will find work and contribute to the tax base. Almost all economists agree that immigration raises G.D.P. and stimulates business development by increasing the supply of workers and entrepreneurs. There is some disagreement about the net fiscal impact of first-generation migrants. The argument is that they tend to be less educated and therefore earn lower wages than the native population, and that they tend to contribute less in taxes. But this is disputed. There is no doubt about the contribution that immigrant families make over the longer term, however…

In the long run, welcoming immigrants is a good investment for the United States. The entire history of the country demonstrates this fact. But the current President wants to go in the opposite direction. Along with introducing draconian measures to curb the influx of undocumented migrants, he wants to slash legal immigration. At the moment, the United States grants permanent-resident status to about a million people a year, and many of these folks go on to become U.S. citizens. Trump wants to cut this number in half, roughly speaking…

His policy isn’t driven by economics, of course. As he more or less admitted earlier this year, with his derisive comments about immigrants from “shithole countries,” it is driven by racism and a desire to resist the emergence of a nonwhite majority in the United States—a transformation that is inevitable and necessary.

Lessons from Turkey

Turkey just had a not-very-free election to keep it’s authoritarian leader in power.  Yasha Mounk with lessons for the US:

This is a great tragedy for Turkey, which once looked like the Muslim-majority country most likely to build a stable democracy. But it is also a serious warning for other countries.

There are, of course, many differences between Turkey and most of the other countries in which liberal democracy is now under threat. The fact that Erdogan was able to destroy the political system in a country that had never been fully democratic and had never quite resolved the tension between its deeply religious population and its militantly secular institutions does not mean that populists will be able to pull off the same feat in Italy or the United States. And yet, the similarities are substantial enough that it would be folly to dismiss them out of hand.

The Turkish case shows that authoritarian populists can, in the long run, prove surprisingly effective in delegitimizing anybody who disagrees with them by denigrating the opposition and telling lies about critical journalists. It shows that, even if about half of the country deeply hates them, populists can stay in power by mobilizing a fervent base. And it also shows that political and intellectual elites, both inside the country and around the world, persistently underestimate the threat that these kinds of leaders pose to the survival of democratic institutions.

It is a set of lessons we would do well to take to heart in the United States. [emphasis mine]