A Philosopher's Blog

Trump, Terror and Hope

Posted in Law, Philosophy, Politics by Michael LaBossiere on November 14, 2016

speaking at CPAC in Washington D.C. on Februar...

After Trump’s victory, my friends who backed him rejoiced in their triumph over the liberal elite and look forward in the hope that Trump will do everything he said he would do. Many of my other friends look forward in terror at that same outcome. As one might imagine, Hitler analogies are the order of the day—both for those who love Trump and those who loath him. While my political science studies are years behind me, I thought it would be worthwhile to have a rational discussion about what Trump is likely to do within the limits of his powers. This assumes that he does not hand the office over to Pence and get to work on Trump TV when he finally finds out about what he’ll need to do as President.

One thing that will disappoint his supporters and give hope to his opponents is that politicians rarely keep all their promises. Trump also has quite a track record of failing to follow through on his promises and his ghost-written The Art of the Deal lays out how he regards hyperbole as a useful tactic. As such, his promises should be regarded with skepticism until there is evidence he is trying to keep them. If Trump plans to run in 2020 he will need to work on keeping his promises; but if plans on being a one term president, then this need not concern him very much. Then again, people voted for him once knowing what he is, so they might well do so again even if he delivers little or nothing.

Trump also faces the limits imposed by reality. He will not be able to, for example, get Mexico to pay for the wall. As another example, he will not be able to restore those lost manufacturing jobs. As such, reality will dash the hopes of his supporters in many ways. Assuming, of course, they believed him.

There are also the obvious legal limits on his power as set by the constitution and laws. His supporters will rejoice in the fact that since 9/11 the powers of the presidency have expanded dramatically. While Obama originally expressed concerns about this, he did little or nothing to rein in these powers. For example, he made extensive use of executive powers to conduct drone executions. As such, Trump will be stepping into a very powerful position and will be able to do a great deal using, for example, executive orders. While these powers are not unlimited, they are extensive.

Those who oppose Trump will certainly hope that the legal limits on the office, such as they are, will restrain Trump. They can also hope that the system of checks and balances will keep him in check. Trump’s rhetoric seems to indicate that he thinks he will be able to run the country like he runs his business, which is not the case. The legislative and judicial branches will resist incursions into their power; at least when doing so is in their interest.

There is, however, an obvious concern for those worried about Trump: his party controls the House and Senate. His party will also control the Supreme Court, assuming he appoints a conservative judge. As such, there will be no effective governmental opposition to Trump, as long as he does not interfere with the goals of his fellow Republicans in the House and Senate.

This is where matters get a bit complicated. On the one hand, the Republicans will presumably try to work together, since they are all in the same party and claim to accept the same ideology. On the other hand, Trump has said things that are contrary to traditional Republican ideology, such as his rejection of free trade and his view of American defense commitments to our allies. Trump and the Republican leadership also have had their conflicts during the primary and the campaign; these might flare up again after the honeymoon is over. So, America might see the Republican House or Senate opposing some of President Trump’s plans. This is, of course, not unprecedented in American history. A key question is, of course, how much the Republicans in congress will stick to their professed ideology and how much they will go along with Trump. There is even the possibility that some of what Trump wants to do will be opposed on the grounds of principle.

While Trump ran on the usual bullshit rhetoric of going to Washington to “blow things up” and “drain the swamp”, doing this would involve going hard against congress and the established political elites. As much as I would love to see Trump getting into a death match with Paul Ryan and Mitch McConnell, I think we can expect Trump to settle into politics as usual. Even if he does get into it with congress, Trump has no real experience in politics and seems to lack even a basic understanding of how the system works. As such, Trump would presumably be at a huge disadvantage. Which could be a good thing for those who oppose him.

While predicting exactly what will happen is not possible, it seems reasonable to expect that the total Republican control will allow them to undo much of what Obama did. Trump can simply undo Obama’s executive orders on his own and Trump will certainly not use his veto to thwart congress to protect Obama’s legacy. So, expect Obamacare to be dismantled and expect changes to how immigration is handled.

The restoration of conservative control of the Supreme court will initially not be much of a change from before; although the advanced age of some of the judges means that Trump is likely to be able to make more appointments. Unlike Obama, he can expect the Senate to hold hearings and probably approve of his choices. That said, the Senate will probably not simply rubber stamp his choice—something that might frustrate him. However, as long the senate remains under Republican control he will have a far easier time getting judges that will rule as he wants them to rule into the court. This is, of course, what the evangelical voters hope for—a supreme court that will overturn Roe v Wade. This is also the nightmare of those who support reproductive rights.

If Trump can shape the court, he can use this court to expand his power and erode rights. Because he is thin skinned and engages in behavior that justly results in condemnation, he wants to loosen up the libel laws so he can sue people. Trump, despite being essentially a product of the media, professes to loath the news media. At least reporters who dare to criticize him. If he had the sort of supreme court he wants, we could see the First Amendment weakened significantly.

Trump has also made the promise of going up against the elites. While he certainly has a dislike of the elites that look down on him (some have described him as a peasant with lots of gold), he is one of the elites and engaging the systematic advantages of the elites would harm him. Trump does not seem like the sort to engage in an altruistic sacrifice, so this seems unlikely. There is also the fact that the elite excel at staying elite—so he would be hard pressed to defeat the elite should they in battle meet.

Trump is also limited by the people. While the president has great power, he is still just a primate in pants and needs everyone else to make things happen and go along with him. He also might need to be concerned about public opinion and this can put a check on his behavior. Or perhaps not—Trump did not seem overly worried about condemnation of his behavior during the campaign.

Citizens can, of course, oppose Trump in words and deeds. While the next presidential election is in four years, there will be other elections and people can vote for politicians who will resist Trump. Of course, if more people had voted in the actual election, this might not be something that would need doing now.  Those who back him should, of course, vote for those who will do his will.

As a rule, people tend to err significantly in their assessments of politicians—they tend to think they will do far more good or evil than these politicians deliver. For example, some hoped and others feared that Obama would radically change the country. His proponents had glorious dreams of a post-racial America with health care for all and his opponents had feverish dreams of a Muslim-socialist state taking away all their guns. Both proved to be in error: America got a centrist, competent president. In the case of Trump, there are fears and dreams that he will be an American Hitler. The reality is likely to relieve those having nightmares about and disappoint those dreaming of people in white hoods advising Trump in the White House (although the KKK is apparently planning a parade for Trump).

In closing, while I suspect that the Trump presidency will be a burning train wreck that will make America long for the golden years of Obama, it will not be as bad as some fear. That said, history shows that only fools do not keep a wary eye on those in power.

 

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Replacing Scalia

Posted in Law, Politics by Michael LaBossiere on February 17, 2016

Scalia 2016

The death of Antonin Scalia has left a vacancy on the United States Supreme Court and, of course, has set off a political storm of predictable proportions and positions.

For the most part, Republicans are claiming that Obama should not appoint a replacement. Rather, this should be left to the next President.  The current plan of the Senate Republicans seems to be to simply refuse to hold hearings. There is, however, some talk about holding hearings and simply rejecting anyone Obama nominates.

Democrats, as might be expected, tend to hold that Obama has the right to make the appointment and that the senate should confirm his choice. There is also some talk that if the Republicans obstruct the nomination, then Sanders or Clinton should nominate Obama if one of them is elected President.

Both parties are, as usual, engaging political maneuvering and trying to determine what will best benefit their party in terms of the upcoming elections and scoring political points. The Republicans are also operating on their principle of hating Obama and opposing everything he does. The Republicans hope that by engaging in obstructionism, they can appeal to their base and thus garner re-election for Republican senators who might be at risk. They also hope to milk this to help whoever is the Republican candidate. Interestingly, the Republican candidates are also using this matter to bash each other–although most bashing is being aimed at Jeb Bush. While some pundits claim that the Republicans can hurt themselves through their obstructionism, the past seems to show that they are rewarded politically for such behavior.

While most Democrats want Obama to be able to make the appointment, they are also working out how to best exploit the situation. One strategy is to nominate a candidate that is incredibly appealing and eminently confirmable so as to make the Republicans look bad, thus helping out Democratic candidates. While somewhat sensible as a strategy, it does rest on the assumption that it will win over voters who are not already won over. This might not prove to be as effective as the Democrats might hope.

Obviously enough, if the situation were reversed, the Republicans would be howling that the Republican president has every right to present a nominee and that the obstructionist Democratic senators would be obligated to hold hearings and approve his choice, no doubt for “the good of the country.” The Democrats would, of course, be screeching that the nomination must wait for the next president and that they are acting for “the good of the country.” As always, I prefer to operate on the basis of principle rather than operating on what just happens to be in my interest at the moment. As such, I will endeavor to consider the matter as neutrally as possible and put forth a position that I can hold regardless of which party is on which side.

Since Scalia professed to be a constitutional originalist, it is fitting to refer to the Constitution and see what it says about this matter. Article II, Section 2 of the Constitution addresses the process of Supreme Court appointments:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

While I am not a constitutional scholar, I can read English well enough to see what the Constitution specifies about this matter. The president unambiguously has the power to nominate Judges of the Supreme Court. Since Obama is still the President, he has the constitutional right to make the nomination. This would, obviously enough, hold up to the point at which he ceases to be President. Obama can also make appointments when the Senate is in Recess-there is, however, debate about what exactly counts as recess. However, the text is clear that any such appointment would last only until the end of the next session of the Senate, thus putting a clear and short limit on such appointments.

The text is also clear that the appointment of the Judges of the Supreme Court requires the “advice and consent” of the Senate. Since the constitution does not actually specify the process, the Senate has created its own confirmation rules. In general, the approval process has been fairly quick in the past-so there is no real argument that there is not enough time to give an Obama nominee appropriate consideration. There have also been appointments made in the last year of a President’s term-so an appointment by Obama would be consistent with past precedent. That said, since the Senate makes its rules, they have every right to make whatever changes they see fit-provided that they are consistent with the Constitution. This would certainly open the door to running out the clock on hearings or even refusing to hold them. However, refusing to hold a hearing could be problematic. The text certainly seems to indicate that the Senate is supposed to provide its advice and give or withhold its consent. There does not seem to be an option for refusing to consider a nominee. This, as some would argue, would seem to be simply refusing to do their job. That said, it could be argued that refusing to hold hearings would be refusing consent, and thus it is within their power. The filibuster could also be deployed as well to delay proceedings and run out the clock, so to speak. As such, the Senate does seem to have the right to obstruct the president in regards to nominations, which would obviously run afoul of the need to fill the vacancy.

My own view is that since the President has the right to nominate and the Senate has the role of advice and consent (or refusal of consent), the Senate is obligated to consider the nomination made by the president. Refusing to do so or running out the clock would be a failure of their specified duty. I hold to this view regardless of the political parties of those involved and will, of course, leave this post up in perpetuity in case the situation should arise with a Republican president and a Democrat dominated senate.

 

DNA Gathering

Posted in Ethics, Law, Philosophy by Michael LaBossiere on June 13, 2013
Animation of the structure of a section of DNA...

(Photo credit: Wikipedia)

In some states, the police are allowed to gather DNA samples upon making an arrest-even before the person is actually charged (let alone convicted). As might be guessed, this has raised concerns from those who are concerned about privacy issues. However, there are those who regard the collection of DNA as a good idea and one that can help ensure that the guilty are punished and the innocent are set free.

One argument in favor of allowing the police to take DNA samples upon arresting a person is that the DNA information can be used in whatever investigation that might follow. Of course, the obvious counter to this is that the sample need not be taken upon arrest to be used in the investigation or trial. That is, the police can wait until the person is actually charged with a crime that legitimately involves a need for DNA evidence.

Another argument in favor of allowing the police to take DNA samples upon arresting a person is that this adds to the database of DNA. Even if the person arrested is not charged or found to be innocent, the DNA information will remain and it might prove useful in a later investigation. Not surprisingly, this same argument is used to argue in favor of mandating that everyone be included in the DNA database. Such a national DNA registry would be a great boon to police. For example, a person picked up for a traffic violation could be checked against the database and it could be found that he is a wanted serial rapist. Without the DNA information, the serial rapist would have been free to continue his crimes.

As might be imagined, the arguments in favor of such DNA sampling and database creation are countered with arguments against them.

One of the main arguments against taking DNA samples from a person who has been merely arrested is based on the claim that the police need a proper warrant to obtain evidence. Just as an officer cannot go through my computer or house without a warrant, she cannot go through my DNA. The main counter to this is that the police do take fingerprints and this practice is on a solid legal foundation. The debate then becomes one of analogy: is DNA more like fingerprints or more like the content of a person’s house or computer? The answer to this depends a great deal on the sort of data gained from the DNA sample.

If the DNA sampling merely provided data comparable to that provided by fingerprints (that is, just identifying the person), then a fairly solid case can be made that DNA sampling of this sort would be just as legally solid as fingerprinting.  However, if the DNA sampling provides more data, then it would seem to be more analogous to going through a person’s home and thus simply grabbing a DNA sample upon an arrest would seem to be on par with going though a person’s house just because she had been arrested.

Obviously enough, a DNA sample does potentially provide a vast amount of information about a person. However, the amount of information revealed would depend on the sort of testing used on the DNA. Thus, a key part of the matter would focus on how the DNA was used (and what was done with the actual samples).

Another argument against DNA sampling is the potential for the misuse of the information gathered. Obviously, there is the concern that the information revealed by the DNA will be misused by the police. For example, DNA samples are now used to make family matches and innocent relatives of criminals can find themselves targeted by the police.   As as another example, DNA identifications are not as reliable as people generally believe. This raises the concern that too much reliance will be placed on such evidence. For folks who worry about the government having a registry of firearms, the idea of collecting such DNA information should be utterly terrifying. There is also the concern that the data will be misused by those outside of the police forces. That is, that the data will become available to other parts of the government and perhaps even those in the private sector. For example, the DNA data gathered by the police could become available to insurance companies.

The gathering of DNA evidence is now fairly common and it continues to grow more common. One reason for this is that the companies that profit from DNA testing have effective lobbies that work rather hard to ensure that there will be a large market for their products. This, like the for-profit prisons, also raises concerns. After all, when such profits are involved, the public good is often ignored.

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