Travel Ban Decision (Trump vs. Hawaii)

The Opinion
SCotUSBlog's Case Page

Super brief summary of case:

Candidate Trump included on his webpage a statement about how he intended to stop all Muslim immigration temporarily. (Other than this, the clearest thing he seems to have said on the subject was that the US was "having problems with Muslims coming into the country.")

1.  On his 8th day as president, Trump issued Executive Order 13769 among other things suspended entry of people from certain countries for 90 days.
2. It was almost immediately subjected to legal challenges which delayed its enactment.
3. It was replaced by Executive Order 13780, which removed Iraq from the list of countries banned and clarified that people with legal standing in the US were not subject to the ban.
1. Chad, North Korea, and Venezuela were added to list
2. Chad was removed from list
4. Legal challenges began

In my reading of the opinions (of lay people and judges), it seems to me that the real question at issue here is whether a motivating factor should be used to decide constitutionality. I don't think that either side disagrees that if Candidate/President Trump had never said anything about banning Muslims, that the (second executive) order would be ruled unconstitutional. The dissent seems to be almost entirely around his statements about banning Muslims and the fact that most of the countries are Muslim-majority countries.

The majority's opinion seems to be that his statements not withstanding, the fact that the executive order has a reasonable, non-religious explanation supporting it, and the President has pretty broad powers to control entry into the United States, the executive order is constitutional.

The dissent's opinion seems to be that President Trump expressed a desire to implement a ban on a certain religion and therefore this order which mainly affects some countries with large numbers of that religion is based on religious animus and therefore unconstitutional.

If we go with the dissent for a moment, their position really is that if a person expresses an unconstitutional motivation at anytime, that bars him from enacting any law that would even partially fulfill that motivation despite it being constitutional when the motivation is ignored.

Am I wrong that this would open the door to litigation of any and all laws that have a disparate impact on a group? I suppose it would need to be a protected group. It's hard to imagine a different case. Every now and then a politician is caught saying something anti-Semitic. If they passed a law which had a negative impact on Jews, would that be unconstitutional? Another example might be tax policies that hurt different groups.

On the other hand, what if there actually existed a religion whose sole purpose was to destroy us? If a candidate said he was going to stop them, would he not be allowed to do so because of his religious animus?

Another question that the dissent generates would be at what point can you discern a legislator's or president's motivations? President/Candidate Trump actually said Muslim ban, but what if he had merely said he thought Muslims dangerous and then said we shouldn't allow dangerous people into the country, would that be clear enough? This would definitely create a whole new set of cases and judgments to define the line of motivation, and you can be assured that the left's interpretations of motivations are often stretched pretty far. Just think about the scant evidence they use to call someone misogynistic (because they think Judge Kavanaugh should be confirmed) or racist (because their middle name is Beauregard).

Another interesting tidbit about this decision. I think this is a case where the split wasn't caused by political ideology but judicial ideology. If the judges were polled as to whether they approved or disapproved of the law, I would bet that the disapprovers would outnumber the approvers. It might even be unanimous. I know that's how I feel. I disagree with the policy, but still think it's constitutional. Count this as an argument that the conservative justices aren't voting for political reasons. Are there any similar cases where the liberal justices vote against their political beliefs? J. Ginsburg has expressed an anti-Trump animus. Should her decisions be negated?

Other Thoughts

There is a lot of back and forth about rational versus reasonable basis. The dissent claims that "if a reasonable observer would understand an executive action to be driven by discriminatory animus, the action be invalidated" (reasonable basis). The opinion believes that if the law has an underpinning for legitimate purposes, then it must be upheld (rational basis). The rational basis camp cites many precedents suggesting that this should be used on cases of national defense, foreign affairs, and entry of foreign nationals while the dissent's (single yet very clear) precedent pertains to "holiday displays and graduate ceremonies". If the dissent had won this argument, it would have expanded the use of the reasonable basis review.

Furthermore, the dissent strongly believes that "a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus." I just don't know if that's true. I think reasonable people could fall on both sides, though a majority of them would probably agree. It really depends on how it is presented. If you said, "President Trump wanted a Muslim ban and the first thing he did in office was ban a bunch of Muslims from entering the US.", then yes. If you instead said, "President Trump said he wanted a Muslim ban, but keep in mind, President Trump is prone to exaggeration and doesn't really precisely what he means" (give numerous examples) "Upon entering office he issued a sloppy order that banned entry from the 7 mostly Muslim countries that President Obama's administration had placed restrictions on because of 'the growing threat from foreign terrorist fighters.' After legal challenges, President Trump cleaned up the order as it related to people who already had legal standing, added two countries with very few Muslims and removed Iraq. It also included explicit, non-religious reasons the countries were on the list providing them a way out. At most, it 'bans' 8% of world's Muslims." What would a reasonable person say to that? I don't really know.

• If a Candidate/President expresses a religious animus, and then actually has a change of heart, would the dissenters still prevent her from implementing a similar travel ban? Would she need to express her change of heart? If President Trump says he loves Muslims would he be in the clear?
• If one of those countries, or any Muslim majority country declares war on us, would President Trump be barred from fighting back? Would he have had to have said on the campaign that he didn't like Muslims?
• “The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla­mation inflicts upon countless families and individuals” - Is this a legal argument or a logical fallacy?
• In J. Sotomayor's dissent, footnote 7, "It is important to note 'using the term alien to refer to other human beings' to be 'offensive and demeaning'" I don't think it's important to note that at all.
• Why does the dissent cite Democrats who believe it to be bad policy? The quality of the policy should not affect whether it's constitutional.
• “the Proclamation has deleterious effects on our higher educa­tion system; national security; healthcare; artistic culture” - and? OH! That was your point. Everybody stop the travel ban! Let anyone who wants to come in come in, otherwise our artistic culture is doomed!

Good Writing

“Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”

Media Arbitration

Here are some news articles regarding the recent change in the arbitration rule. (In ascending order of support for the change - liberal at the top; conservative at the bottom)

Bryce Covert - Slate
Renae Merle and Tory Newmyer - Washington Post
Jessica Silver-Greenberg - New York Times
Lisa Rickard and David Hirschmann - RealClearMarkets
Norbert Michel - Fortune

Just a little background first. Banks have been increasing their use of clauses that deny its customers the ability to join class-action lawsuits should they have complaints, instead forcing them into arbitration. This was done by adding an arbitration-only clause into that 50,000 page agreement you sign when you open an account. The Consumer Finance Protection Bureau, ostensibly charged with protecting US consumers from bad bank policies/behavior issued a rule to prevent banks et al. from any such restriction. Republicans last night undid that rule allowing banks to preclude class action lawsuits.

After reading many of these articles, I really can't say for sure whether class action lawsuits are better or worse than arbitration for consumers who have been (what's a nice word for) cheated by banks. The main arguments for arbitration seem to be that their faster and they have a higher payout per person (though it's hard to know what exactly that means when it's possible that fewer people try for arbitration). Also, any payout will go directly to the consumer and not go into the pockets of the lawyers. The main arguments for class action are that you're more likely to have an advocate (class-action lawyer) who will work to ensure a payout and conviction, they're more public, and they're more accessible. In addition, it's rarely consumer-friendly when companies are restricting your options to complain about them, so anyone should be immediately dubious of this policy.

All that being said, I think the CFPB's main duty here is to inform consumers. That's one of the most useful things government can do. In this case, it could inform consumers of their rights within arbitration, whether they can bring a lawyer, how consumers could initiate a complaint and go through the process, what are some issues that consumers should be aware of, what cases other people have brought and what their outcome was. There are many, many things that can help consumers.

My main point, however, is that those three paragraphs I wrote are not in any of the news articles on this topic. The first paragraph was basically in each, the second paragraph's separate arguments might be in one or the other depending on the source, and the third paragraph is unheard of.

I'd encourage each reader of this entry to read the Slate article and think about every sentence/paragraph and whether it's talking about whether the rule itself is pro- consumer or anti-. Some examples:

First paragraph: "Under cover of darkness, the Senate voted Tuesday night, with a tie-breaker from Vice President Mike Pence, to undo a rule that had been a major win for consumers against banks."

Scary. "Under cover of darkness...". An assertion that the rule was pro-consumer, let's read more!

"Instead, consumers are pushed into a private arbitration process when they have a complaint, where the odds are steeply stacked against them."

More scaremongering: "pushed", "steeply stacked against them".

Historical context: "Forced arbitration wasn’t always legal: It was barred until 1925, when Congress passed a law allowing companies to use the clauses in disputes between themselves."

See, the people before 1925 knew what was good.

"But most people, understandably, don’t even realize that they’ve signed them. Who takes the time to fully read a product agreement, let alone understand the legalese that means they’re giving away the right to join a class-action lawsuit? The CFPB found that these clauses alone run about 1,100 words on average, with some as long-winded as 2,500 words, and that they are typically the most complexly written part of a contract."

People are being tricked. Banks are trying to get away with this. Then the "why are these so long and complicated complaint."

"Consumers stand little chance of getting relief when they’re pushed into arbitration: Companies have a lot of control over who will oversee and arbitrate the cases. Only about 60 percent of consumers go into arbitration with a lawyer at their side, but companies are always represented. And once an arbitration decision is made, there’s usually no recourse to change it. In one case study, debit cardholders who were able to join a class-action lawsuit got $1 billion via 18 settlements over their allegations of illegal overdraft fees. Those who went through arbitration because they either weren’t allowed to join, or opted out, got nothing at all."

Aha. Finally, the money paragraph. Notice that the lawyer point isn't necessarily good or bad as it doesn't deal directly with whether consumers benefited or lost out eventually. (As an aside, we should remember that the left is not aghast that school's deny lawyers to men accused of sexual assault on campus.) Then, the author cites a single instance where class action resulted in a better outcome for consumers.

After that, the author talks about recent issues at Wells Fargo and Equifax and how they relate to these arbitration clauses without discussing whether that resulted in lower payments for consumers or the lack of paid damages. Then about how Republicans like the financial industry.

So to sum up, in over 900 words on how the Republicans' change will harm consumers, there's a single, concrete claim with evidence related to actual damages, and that was an anecdote. On the other side, there was no mention about the benefits of arbitration, OR, importantly, the vital question of whether the arbitration process tends to result in more losses for consumers or what lawyers' cut is.

Is balanced news really that difficult?

Dems ask Trump admin to keep young people's health costs high

From thehill.com (edited to show the perspective of a less powerful demographic group) 

Senate Democrats are urging the Trump administration not to move forward with changes to ObamaCare that could lead to increased healthcare costs for older Americans decreased healthcare costs for younger Americans.

In a letter to Tom Price, the newly confirmed secretary of the Department of Health and Human Services (HHS), Democratic Sens. Maggie Hassan (N.H.), Sherrod Brown (Ohio), Amy Klobuchar (Minn.) and Kirsten Gillibrand warn against adjusting the age rating requirement in ObamaCare.

The Huffington Post reported last week that a forthcoming HHS regulation could change the ratio set under ObamaCare on how much more insurers can charge older people than younger people.

“We write to express our serious concerns that the Trump administration is reportedly considering a change to the Affordable Care Act (ACA) that would have the direct impact of increasing health insurance costs for older adults decreasing health insurance costs for younger adults and ask that this policy be removed from consideration,” the senators wrote.

“We oppose rolling back consumer protections established in the ACA that protect older Americans from discrimination codify discrimination of younger Americans. Loosening the age rating requirements in the ACA without also expanding advance premium tax credits is a misguided policy that will make health insurance less affordable for millions of Americans more affordable for millions of Americans.”

Right now, the ratio is 3:1, meaning insurers can charge older people, who tend to have higher health costs, three times as much in premiums as younger people. Insurers have long been pushing to loosen up that requirement and allow for charging older people more while charging younger people less. 

The Huffington Post reported that the Trump administration is considering a regulation to change the ratio to 3.49:1, under the theory that 3.49 still “rounds down” to three and therefore follows the law. 

Republican-sponsored bills in the House would change the ratio to 5:1. 

“We are concerned that the reported proposal to relax the age band will amount to an insurance company give-away at the expense of older adults to the benefit of younger adults,” the senators said. 

AARP, the powerful seniors lobby, has threatened to sue the Trump administration if it follows through on the regulation.

Here We Go

In the last 8 years, during Obama's presidency, do you remember one time when he proposed something, and the immediate reaction from the media was, "Is President Obama's proposal constitutional?" That should be the very first question anyone asks when any branch of the government proposes something. It should go:

1. Is proposal legal?
2. Is proposal effective?
3. Is proposal possible?
4. What are the costs/drawbacks of the proposal?
5. Do the benefits outweigh the costs?

In the last 8 years (the last 16 years for that matter), I can't remember a single time when the left has asked question #1 at the onset of a policy discussion. In my memory, they only discuss constitutionality when the right tries to assert the constitution to prevent policies.

I welcome the left's newfound dedication to constitutionality just as I do its newfound interest in federalism (and here). If these turn out to be lasting, and consistently applied, Trump's election will be worth it.

Free Stuff

In the 2012 election, Mitt Romney received a fair amount of coverage with his comments about the 47%. Basically, he said that 47% of the electorate would vote for Obama no matter what because they are dependent on government and need Democrats to provide for them.

Other Republicans have made similar comments, and many have characterized the Democrat debates as a contest to give away free stuff. (View from the Left)

Now, there's proof. Drawn to this because I'm curious about what drives people's politics, I was surprised to see that Romney's comments were justified. Maybe not 47%, but a solid segment of Democrats vote Democrat for the free stuff.

Excerpt from study (with my comments in bold)

I was caught off guard by how specific and personal Democratic voters’ issues tended to be. One woman told me she had lost a job because she had to take care of a sick relative and wanted paid family leave. Another woman told me her insurance stopped covering a certain medication that had grown too expensive and she liked how Clinton and Sanders talked about lowering drug prices. One man told me his wages were stagnant at his hotel job and he was looking for policies to increase them.

Though the first two would qualify as free stuff, "policies that increase [wages]" doesn't necessarily qualify unless the policy is a minimum wage or legislation raising the wage.

Another way to spin this, as opposed to Vox saying "Democrats want specific things and Republicans want philosophical," is to say that Democrats want policies that help them personally, Democrats are selfish with public policy, while Republicans want what's good for the country. I'm sure the Left is apoplectic reading that, and I'm not saying it's always true. I would argue, however, that the non-elitist portions of the Democrat party are motivated more by personal wishes than what's good for everyone.

(If you read the link above to the Daily Kos, they cite how rich Republicans support lower taxes and weird tax breaks, etc. that benefit them, which is probably true for some Republicans, but why do so many Republicans support lower marginal rates at every level when most of them are not paying the highest levels?)

Trump Effects Economic Knowledge in the Media

From Yahoo! Finance's website.

Of all the times I've read or heard stories about tariffs, the only thing I've ever heard was how they would help American workers: Our steel manufacturers need to be protected from Chinese dumping. Tires too.

I can never recall reading a mainstream news article that mentioned that tariffs harm consumers, though it is mentioned frequently on Economics blogs I read.

Now, once Donald Trump proposes tariffs, they're terrible for consumers!

Of course, I already believed that, but I guess I can thank Donald Trump for changing the media's minds on tariffs. See, presidential candidates are extremely instructive. Despite the media constantly criticizing him and his followers, without him, they would never have seen the detrimental effects of tariffs.

Thank you, Donald Trump.

Does anyone believe we'll ever see a politician cite a report that carefully balances the costs and benefits of a new policy?

New York City lowers speed limit to save lives

Why don't reporters ask for that?