Interesting Times

Parts of what Trump is doing I very much approve of. I believe it would be a better country, a better educated country, if the federal role in education were entirely eliminated. I suspect that scientific progress would be faster if the government played no role in either funding or regulating it. Some of what the EPA does is probably worth doing but much of it is not. Climate policy is, in my view, an expensive mistake based on badly biased science. I have long believed that both the US and the world would be better off if the US had a less interventionist foreign policy, if our allies took chief responsibility for their own defense.

Other parts of what Trump is doing I very much disapprove of. I expect his tariff policy to make both the US and its trading partners poorer. I expect increased restrictions on legal immigration to make both present inhabitants of the US and would-be immigrants worse off. Limiting the ability of immigrants, legal and illegal, to benefit by welfare state features of the present system would be a good thing but expelling present illegal immigrants would, in my view, make both them and us worse off. As best I can tell, support for that policy is driven by an exaggerated, in part fictional, account of the problems they cause.

None of that is the point of this essay. For defense of some of it, in particular my view on climate, see my other writing.

What I am currently worried about is the potential for the present political situation to make America a much worse place, in any of several different directions. The obvious is the one that the left has been crying wolf on for a long time, development of a right wing dictatorship. The present administration claims the right to deport people into a foreign prison with no need to demonstrate that they are guilty of anything, even illegal immigration, based on a very stretched interpretation of an 18^th century law. They are, sensibly, starting with the most unsympathetic victims they could find, but nothing in their interpretation of the law would prevent them from doing it to anyone else — at no point, in their view, are they required to demonstrate that their claims about the victims are true.

I expect the courts to rule against them, the Supreme Court by a sizable majority. But there are faint murmurs among their supporters of the idea of ignoring the courts, sympathetic references to Andrew Jackson’s (probably apocryphal) "John Marshall has made his decision, now let him enforce it." Continued electoral success could move them farther in that direction and, even if it does not, would eventually change the makeup of the judiciary.

Right wing dictatorships are, on the evidence of the post WWII world, less dangerous than left wing dictatorships, murder thousands but not hundreds of thousands or millions, but that is not what I want to live under.

The less obvious danger is in the opposite direction, a risk discussed in an earlier post. Suppose Trump’s administration goes badly, serious economic problems driven by rapid change, increased uncertainty, an increase rather than decrease in the deficit, serious foreign policy reversals, perhaps disasters. The Democrats end up with the presidency, both houses of Congress, a lot of angry supporters. They have already demonstrated their willingness to engage in lawfare against their enemies. The claim that everyone commits three felonies a day is doubtless an exaggeration, but a sufficiently committed prosecutor drawing jurors from a sufficiently biased local population can, as already demonstrated, get multiple felony convictions for a misdemeanor on which the statute of limitations has already run. Even without a biased jury to convict, prosecution alone can impose very large costs — and anyone can be prosecuted for something, a problem I discussed in an earlier post.

Prosecutors themselves understand just how much discretion they enjoy. As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s Office for the Southern District of New York was to name a famous person—Mother Teresa, or John Lennon—and decide how he or she could be prosecuted:

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences.

The, result, however, was inevitable: “prison time.”¹

There is one more way in which things could break down — civil war, undeclared and with no shots fired but still real. Lawfare by the Democrats was mostly in state courts. Some states are controlled by Republicans, some by Democrats. If norms of legal behavior become sufficiently corroded, a state could use prosecution in its courts to discourage support for its minority party, drive out supporters, give the state majority party both permanent control of the state and control of its entire congressional delegation. If the house is evenly divided, as at the moment it is, supporters of such tactics could plausibly argue that if their side has scruples and the other side does not, they will lose control of the federal government.

Perhaps, if the opposition applies unscrupulous tactics at that level as well, forever.

Things fall apart; the center cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst   
Are full of passionate intensity.

Not my kind of anarchy.

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1. Tim Wu, American Lawbreaking, Slate (Oct. 14, 2007, 8:03 AM)