An Insightful Analogy

On Fareed Zakaria’s GPS on CNN last Sunday, a guest introduced a clever analogy to describe what is going on in Washington since Trump took over. He likened the situation to a group of pirates who have captured a massive treasure ship operated by one of the great maritime powers. There are far too few of them to operative such a large vessel, and they are somewhat unfamiliar with its sails and rigging. As a result they dragoon the ship’s crew to assist. Not unexpectedly, these captives are not exactly enthusiastic, and as a result the ship stays close to its original course and speed even though the pirate captain wants to divert to his home base. So he rages at his cohort in a vain attempt to achieve better control. His crew is understandably upset as they expected easy going and great rewards from this marvelous prize. So they squabble among themselves about the best way to “right the ship”. Being pirates, used to enforcing their will by force of arms, the internecine strife quickly turns bloody.

The consequences of such a situation are very unpredictable. The original crew might take advantage of the internal disagreements of their captors and seize control again. Or perhaps the ship, under uncertain and disputed management, might run aground and result in disaster for all concerned. It’s even possible that the pirates might get their act together, perhaps by making a deal with the original crew, and finally achieve their objectives. And lurking in the background is the possibility that privateers commissioned by enemies of the flag under which the treasure ship sailed might meddle with the outcome.

You probably can see the parallels with the political situation facing the fledgling Trump administration. At this point I wouldn’t choose any of the listed outcomes as most probable, though my hope is that the first prevails.

Is competence really optional?

Suppose you need some small home repairs or to have your nice new home entertainment system installed. You could try to do it yourself, but often it is best to find an expert. He or she would have relevant experience and would know how to best do the job. This is almost always faster and it often avoids expensive mistakes. Doesn’t that make sense? The same principle applies if you have a medical problem, some important financial transaction, or a legal issue. It is true that consulting an expert costs money but generally it is well spent, assuming you do your homework in choosing the right person. And when picking someone to treat your kid’s broken leg, I hope and assume that you restrict your search to credentialed medical professionals and don’t consider having your gardener take his best shot.

This may seem obvious, but evidently it isn’t for Donald Trump. Although I can’t believe that he hires auto mechanics to design his golf courses or shoe salesmen to run his hotels, when it comes to the business of government the only relevant criterion seems to be personal loyalty.

He just selected a hedge fund manager to be the White House Communications Director. His choice to head the HUD office for the region that covers New York and New Jersey is a party planner. The best person he could find to be the Chief Scientist of the Agriculture Department has degrees in political science and public administration. While obviously not exactly a dummy, he is a decidedly square peg in a round hole. And then there are all those close Trump relatives managing White House affairs. They seem to be talented and successful individuals, and they are probably kind to children and small animals. But running our government isn’t an amateur exercise, or it wasn’t until last January 20th. I am fairly confident that we will outlast this experiment in incompetence, but it is likely to be rocky ride.

A 21st Century Modest Proposal

One of the most consequential activities we pursue from the standpoint of health and safety is automobile driving. As a result, the government has passed numerous regulations that require safety features, from seat belts to intricate electronic control systems. These are not optional. The auto manufacturers must implement them, and they must do so in a manner that meets rigorous test standards. In many cases, drivers must use them. Disabling airbags, except under special conditions, is illegal. And in many jurisdictions, driving without attaching your seat belt can result in a stiff fine. You can’t choose a cheaper car that isn’t as safe because Big Brother says so. And if you are a highly skilled, youthful driver you can’t substitute your skill set for the mandated technology because … well, just because. There can be little doubt that all of this improves driving safety and has contributed to saving many lives, although it obviously adds a substantial amount to the cost of ownership.

Obamacare applies this logic to health insurance. It requires a full spectrum of care provisions that are very comprehensive and very protective. These are not optional, whether you want them or not and even when they don’t apply to your personal circumstances. So, men must pay for maternity benefits and everyone must pay for drug abuse counseling. The logic behind this is that bundling full services in this manner makes them affordable for those in real need. If you can’t afford such comprehensive protection, the government chips in with subsidies.

Don’t you think that it would be consistent, returning to the automobile case, for the government to use safety testing data to qualify car models for sale in the U.S.? Perhaps the top five models on the test scores each year would qualify. Actual qualifiers might change from year to year, but historically it is obvious that some brands would dominate the list. I suspect that over time all of us would be driving a Volvo sedan or something like that.

Consider this. We are spending enormous amounts to make automobile driving safer but nevertheless as many as 40,000 people died on our roads in 2016 and an estimated 4.6 million more were seriously injured, according to the National Safety Council. If you include all costs from this carnage, the NSC estimates that $432B was lost as a result. So, wouldn’t yet more federal regulation be warranted? Isn’t this almost comparable to the need that spawned Obamacare? So why shouldn’t its model be employed once again?

Where would this take us? Convertibles, for example, are so unlikely to qualify that no sensible manufacturer would try to make them for the U.S. market. If you don’t like or need a four-door sedan, well that’s just too bad. Many more currently optional safety features would become mandatory: lane assist, braking assist, 360 degree proximity detection, sonar-assisted separation control, drunk driver interlock, and so on. These would make cars much more expensive of course, but who can place a value on the lives saved? If you can’t afford this, then probably government subsidies will be needed, paid for by taxes on the usual suspects. I have little doubt that this would save many lives. So, not doing it, as they now say about repealing Obamacare, is tantamount to condoning mass murder.

I think you get the idea. Why stop at health insurance with this concept. And for that matter, why stop at automobiles? How about food too? Obesity is a terrible health scourge and it is getting worse in the U.S. every year. Shouldn’t we get those unhealthy foods off the market and apply stringent standards for what can be sold? It is true, I think, that this might be a bridge too far and might fall prey to the flaw that eventually killed the noble Volstead Amendment. It is very hard to prevent people from finding fatty, salt-ridden foods, and many avaricious criminals would be happy to serve this taste for the forbidden. Still, we could probably make it fairly difficult and expensive to achieve morbid obesity. Surely that would discourage some, and every life is valuable.

We could make life so much safer if we only follow this concept to its logical conclusion. Wouldn’t that be wonderful?

When are funding cuts real?

An old dispute in the political world keeps returning, and it is now back in spades in the Obamacare fight. When are funding cuts real?

Let’s take an analogy that might strike a bell personally. Suppose you are a highly valued employee and are accustomed to receiving a generous 10% salary increase year after year. Then suddenly your employer tells you that business conditions have worsened so that all you can expect for the foreseeable future is a cost of living increase. This year that will be about 2%. Did you just get a salary cut?

Can a loss of anticipated salary accompanied by an actual increase be seen as a real loss? Many people would think so. They might argue that without the change they would be richer, so obviously the change hurt them financially. Impartial observers might respond, “Wait a minute. Won’t you actually earn more even after the change? How can that be a cut?” In other words, is it reasonable to “bank an expectation”? Which viewpoint seems more valid to you? I am honestly torn on this question. I see some validity in both views.

Politicians argue this point vociferously whenever changes are proposed that reduce future spending on a government program. A concrete example from the Obamacare issue is what Republicans are proposing to do to the Medicaid program. Are they cutting it or not? Here is the actual projection by the Congressional Budget Office.

On this question, the award-winning Politifact site says that the Trump administration claim that Medicaid isn’t being cut is “mostly false”. However they are really addressing an important but peripheral issue rather than the funding itself. Their conclusion is based on eligibility changes. Their argument is that regardless of how much you spend, if you eliminate some prospective recipients, then it must be viewed as a cut. That is a reasonable position, but I am not so sure it is germane. How funds are distributed is quite distinct from how much is allocated. Each aspect can and should be assessed separately.

Our Colonial Empire

It may seem anachronistic, and it should be a source of some embarrassment, but the United States is one of the few remaining colonial powers. We have colonies, which we euphemise as territories, in Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands. Actually there are sixteen territories in total but these five are the only ones permanently inhabited. Those born in these territories, with the exception of American Samoa, are automatically American citizens, though they have very limited voting rights. For reasons I haven’t bothered to research, American Samoans are citizens of the U.S. only if one of their parents is a citizen, and even then they are accorded similarly restricted voting rights.

By and large these colonies are treated kindly, have substantial local rule and have warm relationships with us. Nevertheless, from time to time, there are efforts to alter their status, one way or another. Today marks one such effort.

For the fifth time our fellow citizens in Puerto Rico are voting on a status change. The options as usual are no change, independence or statehood. Any change requires Congressional approval. The odds this time, and for the first time ever, are that statehood will prevail because the opposition is mostly boycotting the plebiscite.

I don’t think its current status makes sense, is fair or is sustainable in the long-term. It was imposed by force. The residents are pseudo-citizens, i.e. they don’t participate in the election of our President and they pay no federal income taxes. The island’s economy is moribund. And from our viewpoint, we don’t get much out of this arrangement.

I would argue for independence, with a significant transition period to work out the details. Everyone benefits, but only after a fairly tricky adjustment period. Puerto Ricans now living in the U.S. have all the privileges and responsibilities of any citizen. Thus any change in status shouldn’t affect them, though I suppose they might be accorded the option of which country to join.

The problem is that there is no way Congress would approve either change of status for Puerto Rico. It isn’t clear why independence seems to be off the table, but statehood would be anathema for Republicans. That is because the residents are deemed “people of color”, which most Republicans view as synonymous with Democrat. Two new Democratic Senators? Not a chance! Polls have shown that mainland citizens favor statehood for Puerto Rico over statehood for the District of Columbia, which tells you a lot about both of their prospects.

When this issue does get serious consideration, and I believe that is inevitable, the status of the other territories should also be regularized. There is a precedent for independence. The Philippines were acquired as a territory in the same way that Puerto Rico was, as the spoils of the Spanish-American War, and they now flourish as an independent country. If statehood becomes feasible, one option that has been suggested is for Puerto Rico and the U.S. Virgin Islands to combine as a Caribbean state. And it has already been proposed that the Pacific territories become a part of Hawaii. Larger states are more economically viable although geographical separation presents unique problems.

“Curiouser and curiouser!” said Alice

During the widely viewed Senate Intelligence Committee hearings on Thursday, James Comey made what appeared at the time to be an off-hand remark. Amid the various blockbusters, it received little attention at first. But now, some commentators are beginning to rethink their evaluation.

Before discussing this remark, a little background is needed. It is now fairly well established that Russian hackers attempted to interfere with the 2016 election, mostly in a fairly effective effort to derail Hillary Clinton’s campaign. There remains dispute about whether Putin’s fingerprints are on these intrusions, although glimmers of fire among all the smoke are evident. He certainly has the motivation, given his known fury at Hillary for what he saw as interference in his last election. Moreover there is a well-documented history of similar activities by the Russian intelligence services groups known as APT 28 and APT 29. Hopefully the investigations by newly appointed Special Counsel Robert Mueller will uncover the truth one way or the other.

Putin has been characteristically enigmatic when questioned about this matter. He has alternatively denied it outright, suggested that patriotic private Russian citizens might be involved, and most recently alluded to possible involvement of U.S. hackers. His implication was that poor old innocent Vladimir is being framed! All of this smacks of typical Russian disinformation, though it shouldn’t be construed as a confession.

And now to Comey’s remark. He said that it was vital for Robert Mueller to look into possible U.S. involvement in the Russian interference, but he added that he couldn’t say more in an unclassified setting. Most listeners took that to be a reference to members of the Trump campaign team, but perhaps it also included possible collusion by U.S. hackers too. What motivation they might have to assist Putin is unclear, other than just generally spreading havoc.

When Lewis Carroll’s Alice exclaimed “Curiouser and Curiouser!”, she was remarking upon her strange changes in height. I think the slowly unfolding circumstances around the last election has some similar aspects. Now if we can only find the cookies and, more importantly, who brought them to the party.

Limitations of Presidential Power

Yesterday, Harvard Law Professor Alan Dershowitz appeared in a panel on CNN arguing a point that caused other participants to turn red with anger. I think I saw smoke coming out of their ears. His argument was that no President can be legally accused of obstructing justice as long as he is exercising his constitutional authority. And remember, the breadth of that authority is immense. But pay attention to the modifier “legally”. There is a big difference between what is legal and defensible in a court of law and what is morally right and defensible in the court of public opinion.

 

According to Prof. Dershowitz, Trump can summarily fire anyone in the executive branch, except the Vice President and employees protected by civil service regulations. He can do this for any reason or indeed for no particular reason. He can order the Justice Department or the FBI to terminate any investigation, criminal or not, regardless of who is the subject. The so-called independence of the Justice Department is custom, not law. He can pardon anyone, before or after their conviction. He can even pardon himself, though not where an impeachment is involved. No one can gainsay any of these decisions. They are not reviewable by any court or by Congress. Moreover, the President is totally immune from civil liability for any of his official acts, though impeachment can remove this protection.

This pokes a gaping hole in most of the overheated rhetoric by his Democratic opponents. There is nothing currently in the public domain that would indicate legal jeopardy for President Trump. But these are early days and the establishment of a special counsel is ominous. And of course there are limits to Presidential immunity. The President cannot commit criminal acts, destroy evidence in a case under investigation, lie under oath or suborn perjury. He must submit materials demanded under subpoena by a legal authority. But he can quite legally halt any federal case in its tracks and raise his middle finger to his opponents.

This may appear to transform the President into a virtual dictator, but there are two resources available to restrain him. Article 2, Section 4 of the Constitution provides for involuntary removal by impeachment. The legal basis for impeachment is whatever Congress says it is. So it can consist of ordinary criminal activity or such indefinable offenses as “failure to execute authority” or “unbecoming conduct.” Essentially Congress can simply use this authority to say, “Begone, scoundrel! We have no further use for you.” This isn’t easy, requiring a two-thirds super-majority of the Senate. There have been four serious attempts to remove a President in this manner and all failed, though Nixon did leave voluntarily when the outcome was inevitable.

The second resource arises from the 25th Amendment to the Constitution. The President can exercise rights under this amendment to relinquish his office voluntarily whenever he feels unable to fulfill his responsibilities. This is a temporary measure until such time as he issues a revocation. Ronald Reagan and George W. Bush employed this mechanism when they required temporary hospitalization. No President under assault by political opponents would be likely to use it. But there is another part of this amendment that permits either a majority of his cabinet or even some ad hoc group established by Congress to force a President to give up his powers, presumably though not necessarily due to disability. This might be called the Fruitcake Provision, and it seems germane to at least some of Trump’s more imaginative opponents. It has never been tried and it is unclear whether any such attempt would survive judicial review.

This is our system, as explained by one of the country’s foremost constitutional scholars. So, TV commentators, self-appointed legal experts and the like can fuss and fume but that changes reality not one whit. I don’t much like this aspect myself but I can’t conceive an alternative that wouldn’t be subject to its own serious drawbacks.