There’s definitely a danger in drawing too many conclusions from the first two months of a new presidential administration. The sample size is incredibly small, with virtually no time to work with Congress on crafting any kind of meaningful legislation. Most cabinet members have only been on the job for a few weeks, so it’s largely unfair to judge their performance yet. Still, between Supreme Court nominations, executive orders and cabinet confirmation hearings, there’s been enough activity that I thought it warranted a knee jerk reaction. So here are two developments that have given me reasons for optimism, and two that have me worried. Note: I’m trying to restrict myself to policy-related developments instead of talking about “controversies” such as Trump’s potential ties to Russia/Putin or his apparent war on the media.
Reasons for Optimism:
During the election, one of the recurring arguments for a Trump presidency (more specifically, against a Clinton presidency) was that the balance of the Supreme Court was at risk. Justice Scalia’s unexpected death had removed one of the court’s most conservative justices, and allowing a President Clinton to nominate a liberal justice to replace him would undoubtedly significantly shift the court to the left for a long time. Considering Trump’s constantly shifting political stances, including nearly a decade spent identifying as a Democrat in the early 2000’s, I didn’t find that particular argument very compelling at all. Also, considering Trump’s apparent ignorance of and disregard for the Constitution, I wasn’t even confident that he would nominate anybody remotely qualified as anything more than a rubber stamp for a gross expansion of executive power. I figured the best case scenario was probably a nominee similar to Merrick Garland: somebody who was qualified and “centrist” in a way mostly antithetical to libertarians.
So I was absolutely shocked that he nominated Neil Gorsuch.
I want to be very clear. Before Trump nominated him, I had never heard of Neil Gorsuch. I don’t at all profess to be a constitutional law expert or to possess any in-depth knowledge of the type of judge Gorsuch was or the type of Supreme Court Justice he might become. The vast majority of my knowledge on this topic comes from “second-hand research” where I read the opinion of libertarian legal scholars whose judgement I trust. Not only does it sound like Gorsuch won’t be a disaster, it’s possible he might end up as one of the best (from a libertarian perspective) justices on the Supreme Court.
You can read Ilya Shapiro on why Neil Gorsuch will make a fine justice.
You can also read Damon Root on Gorsuch’s past positions on Chevron deference and the Fourth Amendment.
And you can watch Randy Barnett on why he is cautiously optimistic about Gorsuch:
Gorsuch’s certainly not perfect, and there is a history of Supreme Court nominees not turning out to be who we thought they were after being confirmed to the Court, but he seems like the best possible option considering the man who nominated him.
I think it’s important to note that liberals who are worried about expanded executive power under President Trump, many of whom are probably still sore over Merrick Garland’s treatment, should really try to approach Gorsuch with an open mind. They just might find an ally on some important issues and realize that Gorsuch will not just be a rubber stamp for Trump:
Gorsuch’s concern about overweening executive power is illustrated by two 2016 opinions in which he rejected the retroactive application of an agency’s legal interpretation. One case involved an unauthorized immigrant seeking legalization, the other a home health service provider whose Medicare reimbursements were deemed improper based on regulations announced years after the claims were filed.
Gorsuch, like Scalia, is a critic of vague criminal statutes and a stickler when it comes to requiring that prosecutors prove all the elements of an offense. Both tendencies are apparent in a 2015 opinion that overturned the Analogue Act convictions of two convenience store owners because the government had not proved they knew enough about the psychoactive “incense” they sold to be guilty of violating that law.
Gorsuch’s respect for the zone of privacy protected by the Fourth Amendment is also reminiscent of Scalia. Last year, dissenting from a 10th Circuit ruling that allowed police officers to ignore multiple “No Trespassing” signs on the property of a suspected drug dealer, Gorsuch faulted his colleagues for endorsing “an irrevocable right to enter a home’s curtilage to conduct a knock and talk.”
– Trump’s SCOTUS Nominee Is No Rubber Stamp by Jacob Sullum
On criminal justice issues, Gorsuch appears to have a healthy skepticism of overreaching laws and a sympathy for mens rea. His critique of Chevron deference should lead him to oppose power grabs by government agencies. Just over a week after his nomination, it was reported that he spoke out against the very person who nominated him by calling Trump’s attacks on the judiciary “demoralizing.” Considering Trump’s desire to expand executive power and his strong law and order tendencies, liberals could do far worse than Neil Gorsuch on the Supreme Court. In fact, Gorsuch’s apparent positions on issues like criminal justice and executive power are so much at odds with Trump’s that I wonder if Donald had any input into this decision at all, or if he delegated it entirely to somebody else.
One of the more baffling controversies to me from the first month of the Trump presidency has been the intensity and the breadth of the opposition to his nominee to head up the department of education: Betsy DeVos. I was amazed by the number of people that I knew, many of whom I would be shocked if they could name any previous Secretary of Education (not that I can name more than one), who were so strongly against her nomination. Every day my social media feeds were filled with posts from Occupy Democrats or Vox or George Takei lambasting DeVos as unqualified or mocking her comment about Grizzly Bears or pleading with people to call their congressmen. It was an unprecedented level of interest for a position that hardly ever registers in the news at all:
Not only was it an uncommon amount of opposition for the position, but it was also such an odd target considering the limited power the Secretary of Education has compared to other department heads (and potentially just as controversial nominees). According to the Department of Education, “a substantial majority” of money spent nationwide on education will come from “state, local, and private sources,” including 92% at the elementary and secondary levels. USA Today also casts some doubt on how much power DeVos will have:
Most of the day-to-day power — over curriculum, instruction, safety, teacher preparation and even much-maligned standardized tests — lies with states and local school districts. In fact, the legacy of the Obama administration may have been to shift even more power to states and school districts and away from the federal government.
And any plans by President Donald Trump to make big changes in schools would most likely need a helping of cash — and Congress’ approval.
– How much power will Betsy DeVos have? It depends. by Greg Toppo
Contrast this with the potential power that Rex Tillerson will have as Secretary of State or Jeff Sessions as Attorney General and it makes it all the more puzzling why so much attention is being focused on this position that is usually virtually ignored. In fact, one of the biggest frustrations for me is that the attention devoted towards defeating DeVos seems to be distracting people from a more worthwhile and important fight in defeating Jeff Sessions. More attention has apparently been paid towards the Secretary of Education (whose biggest sin appears to be that she is unqualified) than the drug-war-and-civil-asset-forfeiture-supporting Attorney General who also happens to be against immigration (both illegal and legal):
Okay, so enough about how odd I find the backlash to DeVos. I’m listing her as a reason for optimism. What kind of crazy contrarian opinion is this? For starters, I don’t put much credence in confirmation hearing performances. I largely see them as opportunities for politicians to try to make a name for themselves or score points with their constituents by trying to catch candidates with “gotcha” questions and where the best thing for the candidates to do is to sidestep questions and weasel out of saying anything of substance at all. I see it all as an elaborate show and not as an effective way of communicating nuanced thoughts and perspectives on what are normally complicated topics. That DeVos, who is not an experienced politician, did poorly in her hearing largely does not concern me.
Secondly, despite the overwhelming backlash that her nomination created, the only real credible criticism against DeVos seemed to be that she was unqualified and inexperienced. It’s an odd criticism considering she has been an education activist for decades, which seems like more worthwhile experience than the Secretary of Housing and Urban Development’s career as a neurosurgeon. Yes, she appears to have little experience running anything on the level of the Department of Education, but as Nick Gillespie notes:
But then again, if she’s a competent administrator, that’s really what the job demands. As education analysts such as University of Arkansas’ Jay P. Greene and Reason Foundation’s Lisa Snell have told me, the education secretary has relatively little to do, as most federal funds are pre-committed through funding formulas that are difficult to monkey with very much. What the secretary can do is set a broad agenda and a tone. And that, not her lack of credentials, is why Democratic senators tried to “hold the floor” against her.
Which finally brings me to my main point. I approach the Department of Education from the libertarian perspective that it is unconstitutional, unnecessary and ineffective. Most people don’t care about whether government activities are constitutional or not, so I’ll focus on the latter two.
Why do I say it’s unnecessary?
Public education (including federal involvement in public education) was a thing in the United States for a couple hundred years before 1979, when Congress narrowly approved the cleaving of a new Department of Education (DoED) out of the already existing Department of Health, Education, and Welfare. But the newly created federal bureaucracy was more of a favor to a large and powerful special interest group on behalf of a beleaguered president than a necessary reorganization to allow the federal government to “meet its responsibilities in education more effectively, more efficiently, and more responsively,” as then-President Jimmy Carter put it.
– Why Do We Have a Department of Education? Jimmy Carter’s Debt to a Teachers Union. by Anthony L. Fischer
And how is it ineffective? The Cato Institute has done some good work on this:
We spent over $151,000 per student sending the graduating class of 2009 through public schools. That is nearly three times as much as we spent on the graduating class of 1970, adjusting for inflation. Despite that massive real spending increase, overall achievement has stagnated or declined, depending on the subject.
– The Impact of Federal Involvement in America’s Classrooms by Andrew J. Coulson
Don’t trust the Cato Institute? It’s something Politifact has also noted as “Mostly True”.
I point this all out not to pile-on the Department of Education and Public Schools, but just to point out that 30+ years of trying the same things over and over again don’t seem to be working. I believe it’s time to try something different, and I’m excited about the idea that the Department of Education might start giving a serious look into throwing more support behind charter schools.
I know charter schools are a little controversial and that the research on them is mixed. For every study that shows impressive gains, there seems to be just as many showing no better student performance. I don’t pretend to be an expert, but from everything I’ve read, it seems like some charter schools are good, and others might not be so good. But the beauty of charter schools isn’t that they are all great and that they are for everybody. The beauty of them is that they provide a choice relative to the monopoly of public schools. And when the bad ones fail to live up to their promises and under perform, they get shut down, while the good ones provide a shining example of the right thing to do.
That’s the reason why I’m optimistic about Betsy DeVos. Because I’m optimistic that she will help provide some support for school choice from the federal government.
Reasons for Pessimism
This probably isn’t a surprise, considering some of the things I said about Jeff Sessions above, but I consider the nomination (and subsequent confirmation) of Jeff Sessions as Attorney General to be the most worrisome development of the Trump administration so far. If somebody tried to Frankenstein together a libertarian’s worst nightmare for Attorney General, they would probably end up with somebody like Jeff Sessions. On almost every issue important to libertarians that the Attorney General has influence over, Jeff Sessions is on the wrong side.
Sessions on The Drug War
I could write a whole article about the harm that the War on Drugs has done (and maybe one day I will), but for now I’ll just provide an incredibly quick rundown of some of the problems that it creates:
- Much like how alcohol prohibition caused an increase in violent crime, so too has the War on Drugs.
- The process of waging the War on Drugs has led to a massive increase in incarceration (placing the United States at an embarrassing #1 in terms of prison population in the world) and weakened the Bill of Rights, in addition to leading to an increase in police militarization.
- To be blunt (no pun intended), it has been a failure. Despite four decades and $1 trillion spent, we appear to be no closer to eliminating access to illegal drugs or overdoses.
It seems like Americans are slowly coming around to these facts, in addition to realizing that marijuana is in many ways safer than alcohol and potentially has a wide range of medical uses. Jeff Sessions appears to have not gotten the memo. He has been described as a “drug war dinosaur,” he previously has supported the death penalty for drug dealers and has claimed that “drug trafficking can in no way be considered a ‘non-violent’ crime“. It’s even a possibility he will use federal resources to prosecute marijuana businesses in states where recreational use is legal.
Sessions on the Death Penalty
In addition to the aforementioned desire to execute drug dealers, Sessions has also spoken approvingly of Donald Trump’s support for the death penalty against the “Central Park Five,” a group of five men who were later exonerated after DNA evidence and a confession from a serial rapist and murderer. To reiterate, Jeff Sessions believed that a good example of being serious about “law and order” is supporting the death penalty for five people who were innocent of the crime for which they were in jail.
Sessions on Immigration
As a libertarian, I believe that immigration is a net positive for the country and the more of it that we have, the better. Jeff Sessions appears to believe the exact opposite. He has been a fervent opponent of immigration (both legal and otherwise) during his time in Congress.
Sessions on Criminal Justice Reform and Civil Asset Forfeiture
Sessions has also been a staunch critic of efforts at criminal justice reform, including efforts to reform civil asset forfeiture and mandatory minimums. Like with his drug war views, his thinking seems stuck in a “tough on crime” era where no sentence is too harsh and the police never make mistakes or are overzealous. Despite impressively large public opposition of civil asset forfeiture, it seems like no progress will be made while Jeff Sessions is Attorney General.
How Sessions got confirmed is nearly as frustrating as the fact that he did get confirmed. For starters, and as mentioned earlier, Democrats seemed bizarrely more concerned over the miscues of Betsy DeVos and defeating her candidacy instead of what should’ve been a more objectionable candidate. Secondly, despite publicly holding a number of unpopular positions that could’ve potentially turned off some Republican supporters, Democrats instead decided to focus all their energy trying to repeat old accusations of racism. I don’t know if Jeff Sessions is racist or not, but it’s a lot harder to prove what is in a person’s heart than to simply point out public positions/comments/votes made in favor of unpopular issues. There was a path to defeating Sessions’ nomination, and it was not through attacking his character with charges of racism. In fact, Rand Paul even suggested those attacks back-fired:
“In some ways, the Democrats made it much more certain that I would vote for him by trying to destroy his character,” Paul said Thursday in an interview with The Washington Post and Roll Call for C-SPAN’s “Newsmakers” series. “I think it’s very upsetting that they didn’t choose to go after him on particular issues, like civil asset forfeiture, where they might have been able to persuade someone. They chose to go after a man’s character.”
Which brings me to the last source of frustration: the lack of Republican opposition. As mentioned before, Sessions holds a number of views that should’ve been distasteful to a number of Republican Senators. Rand Paul, in particular, has been quite vocal about being against civil asset forfeiture and believing in criminal justice reform. For somebody as bad on so many issues as Jeff Sessions to have passed unanimously among Republican Senators is, quite frankly, a disgrace.
I believe that immigration is a net benefit to our country and that we should be encouraging more of it. Even for people who don’t quite believe the same as I do, Trump’s original immigration ban was a mess all around. For starters, the executive order seemed to be hastily and poorly implemented, causing “widespread confusion across the country […] as airports struggled to adjust to the new directives”. In addition, much like the TSA, the ban seems to be an attempt at security theater, making it look like Trump is taking strong action to prevent terrorism, while in reality his executive order would seem to be doing little to help keep us safe despite doing a lot of harm to people trying to flee dangers in their home countries. Not only does the US already have a pretty strong vetting process in place, but as has been pointed out in a number of places, immigrants from the countries on the ban list haven’t committed very many terror attacks in the US:
The order would ban all people entering the United States from Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen, and yet no terrorist from these places has carried out a lethal attack in the United States. Indeed, no Libyans or Syrians have even been convicted for planning such an attack. Moreover, the likelihood of being killed by any refugee from any country is just 1 in 3.64 billion a year. This discrimination is arbitrary and cannot be rationally justified based on a assessment of the risk. It is worth remembering that German Jews were turned away on a similar pretense that they could be Nazi spies—only to be killed in death camps.
But there have been terrorist attacks in the US. Where have those people come from?
Ironically, the countries that do breed anti-American terrorism such as Saudi Arabia (home of the 9/11 hijackers), Pakistan (San Bernardino shooting duo), Soviet Union (one of the Boston marathon bombers) are conspicuously absent from Trump’s list because it would likely upset the foreign policy establishment too much.
– Trump’s New Travel Ban, Just as Mean and Useless as the Old One by Shikha Dalmia
The entire article by Shikha Dalmia is well worth the read, as it goes over other reasons why the ban is a bad idea.
So that’s the two biggest (policy related) reasons for optimism and pessimism from the first two months of Trump’s administration. There’s 46 more months to go, so no doubt I’ll be writing some more in the not-too-distant future. Let’s cross our fingers and hope for three reasons for optimism and one for pessimism next time.