According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult -- especially for their successors.
Suppose President Donald Trump decided to create a nationwide right to carry guns openly. He could declare that he would not enforce federal firearms laws, and that a new “Trump permit” would free any holder of state and local gun-control restrictions.
Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.
That incredible outcome is essentially what happened with the Supreme Court decision last week in Department of Homeland Security v. Regents of the University of California (the latter being my employer, I might add). Regents blocked President Trump’s repeal of the 2012 Deferred Action for Childhood Arrivals (DACA) program, which halted the deportation of aliens brought to the U.S. illegally as children, and a parallel 2014 program that suspended the removal of their parents (DAPA). Until the Trump administration goes through the laborious result of enacting a new regulation to undo DACA and DAPA, approximately 6 million aliens can remain in the U.S. in defiance of federal immigration statutes.
While supporters of broader, more humane immigration policies (among whom I count myself) may have welcomed the result, they may well regret the Court’s disruption of executive power. President Barack Obama could issue his extralegal visa programs for children and their parents aliens by simple executive fiat, according to Chief Justice John Roberts and four liberal Justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but President Trump had to pretend the order was legal and use the slow Administrative Procedure Act to reverse them. “Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients,” Roberts found, DACA “could not be rescinded in full without any consideration whatsoever of a” non-deportation policy other than on the ground of its illegality.
According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult — especially for their successors.
Such a rule upends the text, structure, and history of the Constitution, which generally prevents the occupants of a branch of government (who are temporary, after all) from binding their successors. The Constitution, for example, contains no system for undoing a statute. When Congress wants to repeal a law, it must pass a new law through the same process of bicameralism (House and Senate approval) and presentment (presidential signature). The Supreme Court effectively repeals past opinions simply by overruling the earlier case, though the Constitution does not expressly provide for such reversals. Brown v. Board of Education famously overruled Plessy v. Ferguson’s rule of separate-but-equal. When a president wants to repeal an executive order, all he need do is issue a new executive order. When agencies want to reverse a regulation, they must resort to the same sluggish method of notice-and-comment rulemaking.
If anything, constitutional law grants presidents the power to reverse the acts of their predecessors even faster. Although Article II of the Constitution requires cabinet officers to undergo both presidential nomination and Senate advice and consent, practices from the earliest years of the Republic as well as Supreme Court precedents recognize the executive right to fire them unilaterally. A president similarly can terminate treaties, as Trump recently did with the Intermediate Nuclear Forces agreement with Russia, even though treaties must also receive Senate approval.
Recognizing a plenary power to reverse previous presidential acts, contrary to the Supreme Court’s DACA rule, comports best with the purposes behind the creation of the executive branch. The Framers created an independent executive branch that could act unilaterally and with dispatch because the president’s swift action was desirable in the execution of his constitutional and statutory responsibilities. They wanted each president to be fully accountable to the electorate for his actions without any diffusion of responsibility. The same reasons that support unitary executive action in the first instance support its potential unilateral reversal. A president may need to reverse his predecessor’s decisions quickly to protect national security or take advantage of a great opportunity.
The Framers’ careful protection against arbitrary government would be turned on its head if one president could insulate his unilateral policies against reversal by a subsequent president — for then the constitutional difficulty of enacting a statutory override would further entrench a tyrannical executive policy against electoral or statutory change.
It is important to understand that this principle applies even more strongly in the case of illegal presidential action. The Constitution vests in the president the responsibility to “take Care that the Laws be faithfully Executed.” The highest form of the law of the land is the Constitution. Under this duty, the president cannot enforce an executive order that violates the Constitution — here, the vesting of the power over immigration in Congress. Upon taking office, for example, President Thomas Jefferson immediately ended all prosecutions under the 1798 Sedition Act, which had made criticism of the government a crime, and pardoned those convicted under it.
This allocation of the power to execute the Constitution to the president reveals the perversity of Chief Justice Roberts’s opinion in Regents. It forces President Trump to enforce an executive program that he believes violates the Constitution and federal immigration law, and hence it forces President Trump to violate the Constitution. This is doubly perverse because Trump supports a legislative solution that would allow DACA and DAPA beneficiaries to remain in the country. Nevertheless, Trump reversed DACA and DAPA because President Obama had no constitutional authority to impose the two policies.
The Obama administration claimed that it could still establish DACA and DAPA as a matter of prosecutorial discretion. The constitutional obligation that presidents enforce the law also includes their right, due to limited resources and time, to set enforcement priorities. Prosecutors cannot bring cases for every violation of every federal law at all times. But Obama’s claim flew in the face of the Constitution by claiming that he could bring the enforcement of a federal law — here the removal provision of the immigration laws — completely down to zero.31
If that were true, President Trump could simply restore the preexisting enforcement levels as a matter of his own exercise of prosecutorial discretion. Each new president’s right to reverse the exercises of executive power by his predecessors means that no level of enforcement can bind any future administrations. If Obama were indeed free to set immigration removal levels to 50 percent of past cases, or even zero, Trump had the constitutional right to restore removals to those that prevailed under the Bush administration.
Trump’s rationale was correct: President Obama had no constitutional authority to refuse to enforce the immigration laws against whole classes of aliens, amounting to 50 percent of the possible removal cases. As the Court in Regents concedes, he had intruded on Congress’s constitutional prerogative to set immigration levels and to establish visa categories. As the lower courts had found, President Obama failed to live up to his constitutional responsibility to take care that the laws are faithfully executed. In such a situation, the Constitution compelled Trump to restore immigration enforcement to pre-DACA and pre-DAPA levels. By ignoring these aspects of the Constitution and presidential power, the Regents Court may have inflicted a harm on the nation that goes far beyond immigration law.
Since the deadly biblical struggle between the two brothers Abel and Cain, humanity has grappled with the fundamentally existential paradoxes between good and evil, free will and subjugation, dominance and obedience, as well as fear and coercion. These bifurcations of societies and communities into freedom by personal responsibility and disenchanted irresponsibility by surrender to seductive illusions have always been lurking under the notion of obligatory assimilation throughout the 244 years of American history. The Declaration of Independence with its lofty ideals of ubiquitous equality and of inalienable rights to life, liberty and the pursuit of happiness, has always hidden the potential of disappointments in imperfect governments. This interaction between the expectant masses and the thus pressurized governments has created a permanently unpredictable interplay between the majority that has needed guidance and the minority that has been elected to command. The reactions to such an unstable situation have been either compliance or revolt. Both have depended on circumstances that mostly have been foreseeable but occasionally subject to barely explainable circumstances.
The death of George Floyd on May 25, 2020, in Minneapolis, Minnesota, during an attempted arrest, has given rise to both open-ended peaceful protests and unbridled lawlessness. Coupled with the relatively draconian anti-pandemic measures instituted by the federal and state governments, these two events have been the fundamental causes of the present infantile idiocy gripping the nation.
The initial reaction to the unwarranted violence has been fear. Cain was afraid of Abel, therefore, he killed him. He was punished by having been uprooted and condemned to impermanence. Similarly, those who destroy statues and monuments are devoid of solid roots in American society. Having been grown up without serious parental guidance and having been confused by their scant education, they are miserable in their primitive loneliness. Lacking any sense of personal responsibility, they demand absolute freedom for themselves and total subordination by the majority. The result is complete, absolute, unconditional insecurity, as well as chaos, anarchy, and terror.
Clearly, such a situation cannot be tolerated at all. The overwhelming majority must transition from merely defending itself to going on the offensive against the unfounded charges of racism, white supremacy, intentional oppression of minorities, and the senseless denigration of a successful national history. There is no institutionalized and systematic racism in the United States of America. The charge of white supremacy is a myth. Minorities are not oppressed. On balance, the 244 years of American history is unequivocally positive.
The only true meaning of democracy is that single issue minorities cannot seize power from the majority by force. Any nation would be in mortal danger if minorities with destructive ideas would want to impose on the majority unworkable ideas that would run counter to the constitution, the laws, the traditions, and the morality of the nation. Attempting to replace the Judea-Christian-based spiritual realm with pseudo-Marxist and outrightly fascist social justice and inhuman rights rhetoric, would only lead to the demise of Western civilization. Unless these minority movements can prove that their ideas and policies could win elections, they must be dealt with harshly within the confines of the rule of law.
The American Republic can only survive if the majority refuses to excuse evil. Black Lives Matter, Antifa, and like-minded minority movements are evil. As long as they embrace violence, they must not be permitted to operate outside the law. The media that promotes these evil movements must not be allowed to hide behind the First Amendment. Such destructive opposition cannot be glorified by the Democrat Party without political consequences at the ballot boxes.
The United States of America has its faults. Yet, the constitutional and political powers upon which it has existed for almost two-and-a-half centuries rest on firm foundations. For this reason, the United States of America has always possessed the strength necessary to progress without borrowing its inspiration from external sources, material or moral. Its greatness has come from its individual as well as its collective ethos.
The ultimate guarantee of this greatness resides in the character of the President, the Vice President, members of the cabinet, members of the House of Representatives, members of the Senate, and the office holders of the Judiciary. What the Democrat Party and the various extremist movements represent is antithetical to the Judeo-Christian governance of America. Marxism has always been against democracy, religion, the family, and the nation state. Fascism is the despotic version of Marxism. Thus, Marxism and Fascism can be defined as political regimes based on the rule of the minority over the majority, in which the minority controls politics and the economy. Moreover, both are irrational, because they are forced to make bad compromises, in order to survive. Finally, having trafficked in lousy ideas and disgraceful emotions, Marxism and Fascism ended up as abysmal failures whenever they were tried in practice.The state of the constitutional institutions have always determined the viability of a democracy. Lawlessness, chaos, and anarchy engenders a feeling of uncertainty. Adherence to the rule of law generates confidence. Presently, only President Trump comprehends what is really happening in the United States of America. Defending and reinforcing the Judeo-Christian foundations of America are the keys to preserving and strengthening the constitution-based governance of the greatest nation on earth.
What many commentators have missed is that the Bostock opinion provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII.
On June 15, the Supreme Court issued its decision for Bostock v. Clayton County. The ruling established that firing an employee simply for being gay or transgender is a violation of federal law under Title VII of the Civil Rights Act of 1964 as a form of discrimination based on sex.
Justice Neil Gorsuch wrote the opinion for the six-justice majority. He established a simple “rule” for when sex discrimination occurs under Title VII: if changing the sex of an employee would change the employer’s decision, then the employer has violated Title VII.
This opinion has been lauded by the left and some on the right as an important step forward for gay and trans rights. What the Bostock cheerleaders who love the decision for its surface-level results don’t realize is the profound difference between a legislative policy change and a judicial policy change. “Legislation” from the courts carries the baggage of the reasoning used to achieve its result, and the contents inside can be volatile and dangerous when the courts finally get around to unzipping them.
Gorsuch’s rule creates problems because it lacks a limiting principle. What many commentators have missed is that the Bostock opinion already provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII. Even further, Bostock provides the basis for the argument that it is a violation of Title VII to enforce sexual harassment policies that are mandatory under Title VII.
The deep problems with Bostock are best illustrated by an example. Imagine an employer that has locker rooms for its employees. There is a male locker room and a female locker room. Each has a communal changing area and a communal shower area. The men in their locker room change and shower in front of one another. The women in their locker room do the same.
The employer also maintains sexual harassment policies that are mandatory under Title VII. These policies prohibit harassing behavior that creates a hostile or offensive work environment, as is federally required.
One day, after reading the Bostock opinion, a male employee who does not identify as transgender walks into the women’s locker room. The women are disrobing in the communal changing area and some are showering. The man disrobes in front of the women, then showers. The employer immediately learns of this and informs the male employee that he has violated the employer’s sexual harassment policies and is fired.
The male employee sues the employer for sex discrimination under Title VII based on the Bostock standard that the decision to fire him for his actions would have been different if he were a woman. The male employee argues that all he did was enter the women’s locker room, disrobe, and shower, and that female employees do those exact actions all the time without penalty.
He argues that his performance of the same actions got him fired only because he was a man doing them, which constitutes sexual discrimination under Bostock in the same way that if a man and a woman at a company are both attracted to men, but only the man is fired for it, then the company has sexually discriminated against the man.
Gorsuch and Bostock defenders do have an obvious argument for why the male employee could not claim discrimination under Bostock. They can say that the male employee’s actions in the locker room were not the “same” as what the female employees were doing because, when the male employee disrobed, he was exposing a male body and male genitalia to the women there, whereas the female employees were exposing female bodies and female genitalia when they disrobed.
Bostock defenders can argue that this biological difference is sufficient to establish that the male employee did not engage in the “same” action as the female employees, and thus his firing was not discriminatory. Yet this defense fails for two reasons.
The first reason is that it is utterly ineffective for dealing with a similar version of the scenario in which the male employee simply walks into the women’s locker room and grabs a towel from the shower area, thus allowing him to see the women in the changing area and shower disrobed and without exposing his body. The court would need to say that the male employee’s act of seeing the women is different from the women’s act of seeing each other, or to put it more simply, that “it’s different when a man does it.” But the argument that “it’s different when a man does it” is exactly the kind of thing Gorsuch rejected as discrimination in Bostock.
The second reason is that the argument about the asymmetry of male and female biology was missing from Gorsuch’s reasoning about sexual orientation and trans status in Bostock, even though it just as easily could have applied there. Either the concept of discrimination accounts for the natural distinctions and asymmetries between men’s and women’s bodies and the social context of their actions with the same and opposite sex, or it doesn’t.
In Bostock, Gorsuch decided that it doesn’t. This means that, just as Gorsuch declared that male same-sex attraction is the “same thing” as female opposite-sex attraction, so too does his logic require that a man exposing his body to women is the same as a woman exposing her body to women.
Bostock demonstrates the bad consequences of a judge’s unacknowledged assumptions about philosophy, theology, and other big ideas. In Gorsuch’s justification-free assumption that same-sex and opposite-sex attraction are literally the “same thing,” he has provided no guideline for how the actions of men and women can ever be distinguished sufficiently to keep women, like those in the locker room example, safe from a man intruding into places like their showers and exposing himself.
What would the solution be to correct for this? Would it be an arbitrary redefinition of some actions as inherently different when men and women do them, but not others that Gorsuch wants to enforce equality for? Would it be a standard that finds no difference between male and female sexual attraction to men, but does find an inherent difference between a man and a woman seeing women nude?
That kind of a scheme would further transform the judges’ robes into heroes’ capes, to wear as a Super-Legislature. Their list of super powers would be impressive: they don’t need to be elected and can’t be voted out; their laws don’t need presidential approval; they decide if what they do is constitutional; and they can create laws based on personal preference.
Justice Samuel Alito described Gorsuch’s appeal to textualism, and the claim that he was reading Title VII as it was written and nothing more, as akin to a pirate ship flying a false flag to get away with plunder. Such a self-serving use of official power for personal policy goals, as would be demonstrated by the Supreme Court scrambling to find asymmetries between men and women only where it would produce a patchwork of desired results, does sound like something a pirate would do.
Election security has a key issue since the run-up to the 2016 U.S. presidential election. Over the past three years, many states have taken aggressive actions to strengthen their election infrastructure to provide enhanced security and resiliency for the 2020 primary and general elections. The global COVID-19 pandemic has added a new layer of complexity as local election authorities consider how to protect voter registration systems and rapidly pivot to a massive increase in the mail-in and absentee voting. The prevalence of election officials working from home and accessing election systems only expands opportunities for bad actors to disrupt or cause a loss of public confidence in the election system.
Election security issues range from direct threats, to the vote tally itself, to disinformation and influence operations by foreign actors. As of June 2019, we have not observed threat actors successfully altering vote tallies or results in any US election. That is the good news. The bad news is we know there are threat actors out there actively trying to influence U.S. voters, and by extension, the outcome of elections. The impact from the pandemic only exacerbates this concern.
Election security threats should be looked at as an ecosystem categorized into three principal layers. Each layer is equally important but is targeted in different ways by those trying to collect intelligence, target data, and impact the confidence of American voters. This impact would give threat actors precisely what they are looking for — the power to sway a vote or extend a political agenda. Each layer also has its own unique set of information technology, processes, and related risks that must be accounted for when planning for a robust defense.
The inner, and most critical segment is the voting infrastructure layer. This layer encompasses all of the systems and technology directly supporting the casting, recording, tallying, management, and certification of votes. The targeting of this infrastructure is the most concerning because it could have a direct impact on both the integrity and availability of the voting process. Fortunately, given the federated and generally segmented nature of voting systems in the U.S., there is a its limited attack surface presented to threat actors. Modifying or preventing the casting of enough ballots to change the outcome of national election undetected would be extremely difficult. Although we haven’t directly seen vote tallies altered by malicious actors in U.S. elections, that doesn’t mean they have not been trying. The U.S. Senate Intelligence Committee report on Russian targeting of U.S. election infrastructure stated that they observed adversaries conducting vulnerability scans targeted at election systems in every single state in the U.S. during the runup to the 2016 election. The larger systemic risk at this layer is an erosion of public trust in the voting process and the integrity of the results if these critical systems cannot demonstrate consistent and sustained security and resiliency against cyberattacks.
The second layer of the election ecosystem are the organizations and systems involved in supporting elections. These include infrastructure such as voter registration systems, and boards of election and election commission networks. For any adversary who intends to disrupt or influence elections, these government administrative networks represent the next most direct and impactful targets of opportunity. In the past, state and local officials, electoral registers, and commissions have all been targeted by actors in attempts to disrupt elections. While such compromises may not provide access to properly segmented election systems, threat actors compromising institutions affiliated with elections have the potential to disrupt pre-election and election day activities and more deeply damage the public’s faith in the electoral process should news of such intrusions become public. Beyond the threats from nation state actors, U.S. officials are publicly concerned about the effect ransomware attacks might have on the 2020 presidential elections, as the threat from criminals utilizing disruptive malware continues to impact state and local governments.
The third and most exposed layer of the election ecosystem represents all of the individuals and organizations with some stake in the political campaigning process, from social networks and news organizations to donor groups and political parties. Threat activity that has historically been observed in this segment has included cyber espionage — and in some cases the purposeful leaking of the data obtained in that manner — as well as disinformation campaigns. While far removed from altering actual systems that votes are cast or tabulated on, this sort of threat activity presents opportunities for malicious actors to attempt to influence public perception and guide a narrative which they hope will amplify a particular message or divide voters on crucial issues, This layer is often forgotten or much less visible to voters and the media, and yet can have an impact on their decisions inside the polling booth. If threat actors can successfully manipulate information so close to the election that there isn’t enough time to authenticate fabricated content being disseminated, irreversible damage may be done. Even if our adversaries are not directly successful, the fallout from foreign manipulation (actual or perceived), can have major consequences to both policy and public discourse for years after the election.
The seriousness of this threat transcends politics or policy disagreements. All stakeholders in the democratic process, from state and local election officials, to federal support functions, to campaigns and parties, have limited time and resources to adapt given new challenges posed by COVID-19. To best secure the U.S elections this year we must take an approach that understands the same threat actors and sponsors may target multiple parts of the ecosystem. Similarly, election security is not about a single candidate or one party over another. All sides are targets. This is about an attempt to divide and erode democratic institutions and confidence in our voting process. There is an urgent need to defend our democracy against these disruptive and divisive attacks. We are all much more aware and educated about the risks and threats facing our elections than we were four years ago. With a concerned and focused effort, we can ensure a safe, fair, and free election for all Americans.
I remember this one teacher. To me, he was the greatest teacher, a real sage of my time. He had such wisdom. We were reciting the Pledge of Allegiance, and he walked over. Mr. Lasswell was his name….He said:
“I’ve been listening to you boys and girls recite the Pledge of Allegiance all semester and it seems as though it is becoming monotonous to you. If I may, may I recite it and try to explain to you the meaning of each word:
I – me, an individual, a committee of one.
PLEDGE – dedicate all of my worldly goods to give without self-pity.
ALLEGIANCE – my love and my devotion.
TO THE FLAG – our standard, Old Glory, a symbol of freedom. Wherever she waves, there is respect because your loyalty has given her dignity that shouts freedom is everybody’s job.
OF THE UNITED – that means that we have all come together.
STATES OF AMERICA – individual communities that have united into [our] great states. . . individual communities with pride and dignity and purpose, all divided with imaginary boundaries, yet united to a common purpose, and that’s love for country.
AND TO THE REPUBLIC – a state in which sovereign power is invested in representatives chosen by the people to govern. And government is the people and it’s from the people to the leaders, not from the leaders to the people.
FOR WHICH IT STANDS.
ONE NATION – meaning, so blessed by God.
INDIVISIBLE – incapable of being divided.
WITH LIBERTY – which is freedom and the right of power to live one’s own life without threats or fear or some sort of retaliation.
AND JUSTICE – the principle or quality of dealing fairly with others.
FOR ALL – which means it’s as much your country as it is mine.”
Since I was a small boy, two states have been added to our country and two words have been added to the Pledge of Allegiance – “under God”.
Wouldn’t it be a pity if someone said, “That’s a prayer” and that would be eliminated from schools, too?
With the anniversary of our independence from Britain just around the corner, the social strife now appearing ubiquitously on social media has many of us questioning what is happening to America. From those whose lineage goes back to the original European settlers to those who earned their citizenship in just the last few years, we’re wondering, some of us, if the nation as we’ve known it can survive.
It can—and it will. We’ve been through worse and come out the better for it. We are not perfect and never have been. We are, however, still what Lincoln called “the last, best hope of earth.”
Are there inequities? Sure, just as there are in any country. Here we have freedoms guaranteed to us by our Founding documents that allow us wide latitude—some would say too wide, these days—to express our concerns about our leaders and about the policies that shape the nation. This is not the case in China, Somalia, Cuba, Venezuela or any of the other dictatorships that many of the young Americans now protesting only know as dots on a globe or listings on Wikipedia. Yet few of them, given the chance, would swap our system of government, the rights we enjoy and the economic realities of living in those countries for life in the United States.
Some are nonetheless cheering on those who’ve chosen violence. Most of us still abhor the rioting and looting and the assaults and murders of police officers and others seeking to keep the peace. We can see no justification for it, no matter how serious the perceived injury might be. That speaks well of the majority. We are not yet the kind of animals those who would bring the entire system crashing down, though some would like to get us there on the fast train.Ads by scrollerads.com
Some of them believe, and they’ve made this abundantly clear, that the social contract has been broken. That the government we have now lacks the consent of the governed and, according to Locke and other Enlightenment philosophers, the people have the right to seek a replacement by any means necessary.
They’re within their rights to think that and to proclaim it. To most of us, though, this is nonsense. And it will continue to be nonsense as long as peaceful means remain available to bring about change in government.
Are we perfect? No, and we never have been. Are we better than every other country? Many would say yes but, to be fair, let’s agree that we at least consistently rank in the top ten. Rather than feel we are inexorably stained by our slaveholding past—a past not unique to this country, and a practice that still exists in other parts of the world—and that there is no way to overcome it, let us celebrate how far we have come. As Independence Day approaches, let us remember how America has consistently led the world, how we have been a haven for the oppressed, how our sons and daughters have given life and limb in the fight against tyranny in many parts of the world and how we remain a beacon to those longing for freedom and as close to a true meritocracy as any nation that has ever existed.
America is the place where you can rise above the circumstances of your birth to accomplish and acquire. It is also where you can fall from great heights, sometimes spectacularly, and lose everything. Elites and establishments do exist in just about every walk of life, but they are more open and democratic here than in most other parts of the world. Meanwhile, we have become the place where, as Dr. Martin Luther King, Jr. said so many years ago, the sons and daughters of former slaves and former slave owners can meet together over the table of brotherhood.
To some, none of that matters. They want to remake America according to what they feel and follow the dictates of largely ill-considered contemporary truths that have failed as governing principles in the other nations that have tried to implement them. They ignore at their peril the eternal truths expressed and refined through thoughtful debate by the Founders who, while not perfect, should be judged by history and by us for the body of their accomplishments and the sum of their lives. “If men were angels,” James Madison said, “no government would be necessary.”
Well, men are not angels and those who conceived and wrote the governing compacts still in force today should be praised for their vision and for their belief that what “this new nation, conceived in liberty and dedicated to the proposition that all men are created equal” had to offer, has to offer, and will have to offer in the future. It is superior to what any other nation on earth at the time could do. Lincoln Steffens was wrong. The future did not work.
Life. Liberty. The pursuit of happiness. The American story is just as much about the ongoing struggle to secure these for everyone, generation after generation, as it is about anything else. Some things have come easier than have others. The struggle endures but shall not end until those objectives have been achieved. Freedom is the aim and always, God willing, shall be.
Two recent pieces in Vox and the New York Times say outright what many of us have long understood is an implicit belief among our elite media: that the media are motivated — and should be motivated — by ideology, not objectivity.
Of course, the ethics guidelines and mission statements of leading outlets have yet to acknowledge this reality, and many still read like paeans to the old gods.
“Our fundamental purpose,” the New York Times cautions its reporters, “is to protect the impartiality and neutrality [of our] reporting.” The Washington Post insists on strict “fairness” and that it “shall not be the ally of any special interest.” We are “unbiased, impartial, and balanced,” declares the Associated Press. “Non-ideological objectivity” is what the Los Angeles Times assures readers it maintains. “Professional impartiality . . . without our opinions,” is the standard declared by National Public Radio.
But if you look at what journalists actually say about each other and their racket behind closed doors, at the champagne-soaked galas where they hand each other prizes, you’re hard-pressed to find an acknowledgment that impartiality or balance are even virtues at all.
The most insider-y of these onanistic lovefests is the annual Mirror Awards, hosted by the prestigious Newhouse School of Public Communications and focused on reporters who cover the journalism industry itself.
One of this year’s nominees for “Best Story on the Future of Journalism,” the Pacific Standard’s Brent Cunningham, perhaps captures the new media zeitgeist most starkly in an article spotlighting reporters who hold the “belief that journalism’s highest calling [is] not some feckless notion of ‘objectivity,’ but rather to . . . expose the many ways the powerful exploit the powerless” and “f*** ’em . . . with the facts.” Indeed.
Reporter Jon Marcus was nominated for a piece in Harvard’s Nieman Reports about reporters who withhold certain facts — say, the name of a mass shooter — in a move that’s come to be called “strategic silence.” While Marcus says it’s a “fraught and complex debate” that “media organizations are struggling with,” he rehearses an Olympian leap of logic from a left-wing activist at Media Matters, who argues that reporters should apply this strategic silence to the leader of the free world, too: The idea is that they should refrain from reporting statements by President Trump that they determine are not “inherently newsworthy” or that they classify as “misinformation.” Say what you will about the man — he probably shouldn’t be covered like a gunman.
Forget about laying out the facts, or airing competing viewpoints, or writing “the first draft of history.” Americans are far too thickheaded for that. Marcus cites another sage who observes that “assuming media literacy . . . may be optimistic.” Yet another one of his sources bemoans journalists who assume that if you merely “throw facts at someone . . . that’s going to change their minds.”
The other nominees for the 2020 Mirrors (19 in all, across six categories) hardly need the encouragement to selectively slant their reportage. The list includes a host of liberal media darlings singing straight from the progressive hymnbook. In the eyes of the Newhouse School, apparently no conservative writers came up with any worthy media criticism in the last year.
Elsewhere The New Yorker’s Jane Mayer, a writer whose leftism is more knee-jerk than a can-can dancer’s, was nominated for an essay called “Trump TV,” which explains that, gee whiz, Fox News tends to support the president. Move over, Bob Woodward.
The Mayer love gets meta, too. Nominated for “Best Profile” is a piece by Molly Langmuir that appeared in the glossy magazine Elle, titled “What’s Next for New Yorker Reporter Jane Mayer?” Here is what the awards committee regards as an exemplar of “hold[ing] a mirror to their own industry for the public’s benefit”: “In person, Mayer, who is petite with brown shoulder-length hair she usually wears down, the tips slightly flipped up, displays a confidence that has no visible fault lines. She also has a tendency toward self-deprecation. And while her mind often seems to whir with seamless elegance, this appears to fuel in her not impatience but curiosity.”
And here’s a detail that didn’t make it in alongside the flipped tips: Mayer was recently excoriated by critics across the ideological spectrum for a baseless and uncorroborated hit piece she co-wrote, the central claims of which were later disavowed by “several dozen” sources contacted by the New York Times.
In an Orwellian flourish, Langmuir explains that to Mayer, the “furor from both the left and right” over the piece was a consequence of her and co-author Ronan Farrow’s own “attempts at carefulness.” Mayer told Langmuir that she had focused on the “‘accountability portion, trying to be fair,’” you see. Plus, Mayer’s certainty on the unsubstantiated accusation she did get into print was “informed by [another] incident Mayer learned about, the one she didn’t get into print.” Got that? The reporting rejected by every other mainstream outlet except The New Yorker was backed up by reporting rejected by every mainstream outlet — including The New Yorker.
If Mayer was at all chastened by the denunciation of her work by her peers, it’s hard to tell. In her most recent piece, “Ivanka Trump and Charles Koch Fuel a Cancel-Culture Clash at Wichita State,” she returned to one of her pet obsessions. Riffing on original reporting in the Wichita Eagle, Mayer deceptively claimed that Koch Industries “threatened to withdraw its financial support for the university” after Ivanka Trump was disinvited from giving a commencement speech. But the source article makes clear that neither Koch Industries nor Charles Koch threatened any such thing. A company spokesperson said explicitly that the company was not pulling funding and in fact stressed its commitment to “academic freedom.”
Maybe Elle ought to hold off on the puff profiles, and Mirror on the awards, until Mayer can master faithfully representing all the facts she finds reported in regional newspapers?
And that isn’t even the biggest coffee-spitter Mirror Awards nominee. That honor would go to David Zurawik of the Baltimore Sun, saluted for his opinion piece applauding MSNBC host and serial prevaricator Brian Williams. “At this moment when journalism and a free flow of reliable information are under continual attack from the Trump administration and its many media allies,” Zurawik proclaimed, “our democracy is made stronger by having Williams . . . at the end of each weeknight to offer perspective on the political and cultural warfare” in our “nation’s civic life.”
But that’s tame stuff compared to the outright agitprop of the nomination for a multipart series jointly published by the Columbia Journalism Review and The Nation, “The Media Are Complacent While the World Burns,” which argued that the press doesn’t spend enough time talking about climate change. Right, and the New York Post ought to devote more ink to a plucky ballclub from the South Bronx called the Yankees. A recent report found that in 2019 the top five U.S. newspapers combined ran between 400 and 800 articles per month that mentioned climate issues. The top seven TV news outlets (ABC, CBS, CNN, Fox News, MSNBC, NBC, PBS) combined covered climate issues between 200 and 400 times a month.
For the authors of that series, Mark Hertsgaard and Kyle Pope, the sheer volume of this reporting isn’t good enough if it doesn’t send readers to the ramparts. “Instead of sleepwalking us toward disaster,” they insist, “the US news media need to remember their Paul Revere responsibilities — to awaken, inform, and rouse the people to action.”
Let me suggest a different historical analog for Hertsgaard and Pope. It was a former newspaper editor, Vladimir Lenin, who once wrote, “A newspaper is what we most of all need . . . [in] the pressing task of the moment. . . . Never has the need been felt so acutely as today for reinforcing dispersed agitation . . . that can only be conducted with the aid of a periodical press. . . . A newspaper is not only a collective propagandist and a collective agitator, it is also a collective organizer.” That’s why, to turn the sleepwalkers into the fully woke, Lenin created the infamous Department of Agitation and Propaganda, or “agitprop” for short.
For all that they say the quiet parts out loud, most journalists still want to have it both ways. They want the satisfaction of slanting coverage to suit their ideological commitments but without giving up the authoritative veneer of neutral objectivity. This duplicity helps explain why surveys from leading media groups like Pew Research show a fast-growing majority of Americans no longer trust the news.
The Mirror Awards, at least, seem to have sensed which way the winds are blowing and are sailing in that direction. They’ve moved away from their promise that the prizes should “recognize reliable reporters who criticize the media and put their own views aside [to] be transparent and objective” and toward the consensus that the problem is “the media’s reliance on objectivity and what some see as false equivalency,” as Newhouse professor Joel Kaplan puts it.
Objectivity is for suckers. A reporter’s own subjective assessment is what counts, and the public is depending on the media to tell them what to think and how to vote.14
Fine. But treat readers like grownups. Polemic masquerading as unbiased reporting demeans everyone involved, making liars out of the press and treating the public like idiots. So why not end every article with a shirttail stating plainly the reporter’s point of view? The author of this piece is a committed progressive and would like [insert desired political result] to come from the issues raised here.
The Newhouse School could even give the first New York Times or Washington Post reporter to adopt the practice an award for bravery.
It’s been decades since the Democrats settled on a presidential nominee as weak as former Vice President Joe Biden. He’s not popular in his own party. In Tuesday’s Kentucky presidential primary, for example, he only won about 60 percent of the vote—and he’s already clinched the nomination.
Party leaders should be worried about this. It’s not as though the only Democrats to show up in the Bluegrass State on Tuesday were the fringes and the freaks. The suddenly competitive race between former congressional candidate Amy McGrath and State Senator Charles Booker for the nomination to go against Senate Majority Leader Mitch McConnell (R-KY) in the fall brought out Democrats of all stripes all over the state. Much of the party faithful, it’s clear, just doesn’t like the idea of a Biden presidency.
If things were any worse, the talk of replacing him at the top of the ticket might be at a fever pitch by now. Instead, while he hides in his basement—and perhaps because he does—Biden is ahead in every national poll, just about every poll in just about every swing state and is preferred by most voters to Donald Trump on every issue except the handling of the economy. And even if the polls are suspect, as Trump’s team and many Republicans say they are, the Democrats must be pleased with the sentiments those polls reveal.
For all intents and purposes, it is a strange election indeed. Which makes the decision to play the “Obama card” so early in the process curious.Ads by scrollerads.com
Obama is the big gun. He’s Mr. Charisma. He’s the face of the Democratic Party everybody loves. Usually, you’d hold someone like him back for the fall election and then work him nearly to death, sending him to every targeted state, time and again, on the party’s behalf. If Hillary Clinton had been able to do that with husband Bill in 2016, she might have won, but—for reasons already discussed ad nauseam—Republicans like Roger Stone kept him pretty much on the sidelines. Yet rather than hold Obama in reserve to move the voters they need to win late in the election, the Biden people rolled him out earlier in order to raise money.
It makes some sense. Biden may be leading the polls, but he’s trailed way behind Trump in fundraising. That, oddly enough, may end up being what makes the difference in November. The free campaign being waged by the pundits, political reporters and news channels on Biden’s behalf have made the election a referendum on Trump.
That’s a hard race for anyone to win, let alone the current president—especially given the cynical nature of most American voters. No contemporary politician except possibly Ronald Reagan—who won 49 of 50 states in 1984—could run against his own record and win. No one is that good. No one is that beloved. Even Barack Obama, unlike Bill Clinton, got fewer votes running for re-election than he did in 2008.
If it were up to the people who establish the national campaign narratives on the newspapers and TV screens, the campaign would remain a referendum on Trump. But they can’t control that. The president needs to change the conversation and make the election a choice between competing visions of what America should be—and force voters to make that choice.
Team Trump can do it. It has more money in the bank than any of his predecessors, money that’s being used to establish communication channels all over social media. The campaign is even doing original programming to counter what’s airing on the networks. It’s a great leap forward, and Biden alone can’t raise the money to match. So in that sense, playing the Obama card now makes sense. The former vice president’s campaign needs the kind of money only someone of the former president’s stature can raise right now.
It may also be that Obama, while of great value to candidates down-ballot in the general election, won’t be able to help Biden on the stump much at all. The former president will always overshadow the would-be future president at every joint appearance. Appearing on his own, he’s a constant reminder to every Democrat and independent of how charisma- and vision-challenged Biden actually is.
Keeping Biden in the basement may not have been intended as a strategy, at first. It may have just been a response to the COVID-19 lockdowns. But now it looks like a blessing in disguise. The voters, at least right now, are showing a decisive preference for the candidate they can’t see over the one they can. It’s not clear if that is sustainable, but the Democrats will try to keep it going for as long as they can. Unfortunately for the down-ballot races, that may mean keeping Obama under wraps, too. They can’t risk giving Trump anything to play off other than himself.
Our national security should require that all remaining Confucius Institutes on American soil be shut down — immediately.
A concerned student at Binghamton University, a public university in New York, challenged the propriety of the school’s partnership with the China-funded Confucius Institute on its campus earlier this year. Last month, the university published an imperious rebuff to the inquiry.
“The campus is confident that the concerns you raise in your email do not apply to Binghamton University’s [Confucius] Institute,” wrote the school’s attorney.
Simply put: Move along. There’s nothing to see here.
But the FBI is moving in the opposite direction. In 2018, FBI Director Christopher Wray testified before a Senate committee, declaring his intention to investigate the Chinese Communist Party-funded Confucius Institutes on American college campuses.
Confucius Institutes are ostensibly educational partnerships between the Chinese government and host schools in foreign countries. Their stated purpose is to teach language and culture, but they do much more than that.
Professor Jonathan Lipman of Mount Holyoke College explains, “By peddling a product we want, namely Chinese language study, the Confucius Institutes bring the Chinese government into the American academy in powerful ways. The general pattern is very clear. They can say, ‘We’ll give you this money, you’ll have a Chinese program, and nobody will talk about Tibet.’” Tibet is one of the three “T-words” (Tibet, Taiwan, and Tiananmen) that cannot be discussed at the institutes, in violation of academic freedom and free speech.
Confucius Institute funding is tied to China Politburo member Liu Yandong, who formerly led the United Front Work Department. Steven Mosher of the Population Research Institute testified before Congress that the United Front Work Department’s purpose is “to subvert, coopt, and ultimately control Western academic discourse on matters pertaining to China.”
New York University historian Jonathan Zimmerman cautions that Confucius Institutes bear an alarming resemblance to the 1930s “Mussolini model” of funding “Italian language centers” in the United States to promote fascist propaganda. In light of academic freedom and transparency violations, Wray testified again in 2019, saying Confucius Institutes are “part of China’s soft power strategy and influence,” which “offer a platform to disseminate Chinese government or Chinese Communist Party propaganda, to encourage censorship, to restrict academic freedom.”
In announcing the FBI’s planned probe into campuses with Confucius Institutes, Wray corroborated what higher education researchers have warned for some time: These Confucius Institutes are not really educational projects and have no business being associated with higher learning institutions. They are propaganda centers planted on America’s campuses as part of China’s worldwide intelligence operations.
American colleges and universities depend for their existence on academic freedom and the transparency that supports it. Confucius Institutes, however, have been shown to abuse academic freedom and mock transparency.
It is thus heartening to see that roughly two dozen U.S. universities have moved to close their Confucius Institutes since 2014. In 2013, University of Chicago Professor Emeritus Marshall Sahlins penned an articleasking, “China U: Confucius Institutes censor political discussions and restrain the free exchange of ideas. Why, then, do American universities sponsor them?” He urged his university to set an example by revoking its partnership. In 2014, his university did just that, as did Penn State.
That said, about 80 schools still continue their ill-advised “partnerships” with these propaganda organs of the Chinese Communist Party.
Joining in opposition to Confucius Institutes in America are the national executive board of the College Democrats of America (along with 15 of its state presidents), the executive committee and national committee of the College Republican National Committee, Students for a Free Tibet, the Intercollegiate Taiwanese American Students Association, Students for Falun Gong, and a number of other organizations, all of which can be found by going to the website of the movement’s organizing body, the Athenai Institute.
The American Association of University Professors — hardly a right-wing organization — called on universities in 2014 to drop their Confucius Institutes, finding that they “function as an arm of the Chinese state and are allowed to ignore academic freedom.” The Canadian Association of University Teachers urged universities to get rid of them as well.
This exodus is not restricted to American educators. This year, Sweden closed its last remaining Confucius Institute. A 2014 Washington Post editorial argued that “academic freedom cannot have a price tag,” urging that Confucius Institute partnerships should be terminated if universities refuse to publish the terms of their contracts with them.
However, too many American universities continue muzzled. According to the National Association of Scholars (NAS), which has been keen to this threat for some time, as of May 1, there are a total of 86 Confucius Institutes in this country. “This includes six that are scheduled to close in summer 2020: the University of Maryland, New Mexico State University, the University of Missouri, the University of Arizona, Miami University of Ohio, and the University of California-Davis.” NAS also found seven institutes at K-12 public school districts.
That roughly 80 universities have failed to safeguard their institutions’ commitment to free speech against these propaganda efforts means that either they lack the moral fiber required to defend American core values, or they were never that hot about American values in the first place.
Consider the recent survey conducted by the nonpartisan Foundation for Individual Rights in Education, which found that 77 percent of colleges now use secret social media blacklists “to censor the public, in violation of the First Amendment.” Or perhaps it’s a third option: Is it all about the money? Lipman remarks, “In this economy, turning [Confucius Institutes] down has real costs.”
NAS reveals that the Chinese government “selects and pays the teachers, sends free textbooks, and offers upwards of $100,000 a year in annual funding” for the institutes. Although universities “are supposed to match” China’s contributions, they “typically do so by volunteering classroom and office space. The result is that colleges can charge tuition for courses that are being funded — and whose content is largely being decided — by the Chinese government” (emphasis added).
NAS’s findings are supported by a study published in The China Journal by Brookings Institution fellow David Shambaugh, who found that the funding “is in fact laundered through the Ministry of Education.” Laundered from where? From communist China’s External Propaganda Department.
If you still wonder about the purpose of Confucius Institutes, consider this assessment from someone who should know. Li Changchun, a member of the Politburo Standing Committee, praised the institutes as “an important part of China’s overseas propaganda set-up.”
What can be done? A number of proposed remedies are already circulating. In addition to sounding the alarm, NAS has called on schools that accept Confucius Institute dollars to refund the same amount back to the federal government, as well as enforce federal transparency requirements on the institutes. These and like measures would be a good start.
Better still, our national security should require that all remaining Confucius Institutes on American soil be shut down — immediately.
Column: How a microbe will decide the 2020 election
On March 18, at a press conference flanked by high-ranking officials, President Trump described himself as a “wartime president” fighting an “invisible enemy” known as the coronavirus. The president, it seemed, was beginning to reckon with the extent of the economic, epidemiological, social, and psychological damage the pandemic would cause, and to act appropriately. “We must sacrifice together,” Trump said, “because we are all in this together, and we will come through together.”
An anxious populace welcomed the appearance of a strong leader at a time of national emergency. The president’s job approval ratings rose in the following weeks, reaching a high of 47 percent in the Real Clear Politics average on April 1. The gap between Trump and former vice president Joe Biden narrowed to five points.
How long ago that seems. Some 122,000 deaths and tens of millions of lost jobs later, and in the middle of a cultural revolution sparked by the viral video of George Floyd’s death at the hands of Minneapolis police, President Trump finds himself backed into a corner. The rhetoric of a wartime presidency is gone. His coronavirus task force is barely visible. In a symbol of declining levels of support among white voters critical to his reelection, attendance at the Keep America Great rally in Tulsa failed to live up to expectations raised by Trump’s own campaign. The president’s job approval rating has fallen to the low 40s. Biden’s lead has widened to 10 points.
There is no shaking the coronavirus. It is the ever-present backdrop against which our national nervous breakdown is taking place. The good news is that deaths have declined to fewer than 1,000 per day. But that number is still higher than the casualties reported by other liberal democracies in Asia and in Europe, and it may rise in the coming weeks. Sclerotic bureaucracies, poor decision-making, and ill communication at every level of government wasted the opportunity to suppress the virus through relentless testing, contact tracing, and quarantine.
By the time testing ramped up to the point where it could become the centerpiece of a suppression strategy, Americans had grown tired of lockdowns enforced throughout the country without regard to local conditions and to basic freedoms, and weary of a public health establishment whose pronouncements—New York good, Florida bad; protests good, yeshivas bad—seemed driven by partisanship and ideology.
The virus exposed racial, ethnic, and class cleavages that inflamed elite opinion and increased demands for social justice. And the economic devastation left an environment permeated by anxiety and filled with bored and unemployed people, some of whom felt as if they had no stake in the system and no reason not to smash things. The civil unrest of the past month has analogues in earlier pandemics. Local, state, and federal leaders met the disorder with the same woolly-headedness, indecision, posturing, and lack of compassion that they have applied to this one.
Trump has tried to reinvigorate his candidacy by resuming a normal schedule. Recently, in addition to Oklahoma, he has traveled to Arizona and Wisconsin, but at each stop he has run up against the agent of his electoral distress: the plague.
The arena wasn’t full in Tulsa because of a justified fear, on the part of some who otherwise would have attended, of participating in a large gathering in an enclosed space. During his monologue the president remarked, as case numbers rose in 29 states, that he had told his team to “slow the testing down please.” The content of his speech to a youth group inside a Phoenix megachurch had to compete with questions over how widely face masks were distributed among the crowd. As the president traveled to Green Bay for a town hall with Sean Hannity, Texas governor Greg Abbott paused his state’s reopening and halted elective procedures at hospitals in four counties.ADVERTISING
The spread of the virus results in panic, and the panic results in economic losses, social isolation, and polarized media and culture primed for incitement. That is why 80 percent of registered voters say the country is out of control, why 68 percent say the country is on the wrong track.
What the coronavirus has done is rob President Trump of his ability to control events. The president has a knack for putting his human opponents on their toes, for establishing facts on the ground that are difficult to contest. But the coronavirus doesn’t read Tweets, doesn’t watch television, and doesn’t go away if ignored. It has to be defeated, or endured. America prides itself on having a government of, by, and for the people. But here, today, the virus rules.
A lot to argue about!
Trump held his first post-lockdown rally last evening in Tulsa, Oklahoma. There was controversy before, during and after the event. Criticism was not confined to the content of the speech as usual but spread over the unusual areas of the timing, location, venue, and attendance of the rally.
The earliest criticism concerned the timing of the event. A Trump rally, held in an indoor arena, was criticized as a blatant violation of the CDC current (and often changing) recommendations regarding safeguards against the “Chinese virus”, as Trump calls it. Among the most obvious violations were the lack of social distancing in the densely packed house, without compulsory masks, and held indoors (as opposed to outdoors).
After the rally, much was made of the lower attendance. Not only were there noticeable empty bleachers (which the network cameras showed frequently), but also the scheduled outdoor appearance by the President was cancelled because the only crowd out there was the ever-present (thankfully peaceful) protesters. Nevertheless, there were approximately 18,000 or more in attendance, counting the seating on the floor of the arena, out of a published capacity of 19,000. One unaccounted-for factor was the absence of the 0ver-65 crowd who tend to be among the most loyal of the Trump base.
So, what to think about all this? First of all, there is the symbolic significance of the scheduling. The President has shown in various ways that the public health contingent – which essentially scared him (and all of us) into the lock-down in the first place – is no longer calling the shots in the White House response to the pandemic.
This column remarked very early in the process the fact that the public health perspective is necessarily limited. Never before in American history has this group been given such control over public policy. At the first sign of a public health threat, Mr. Trump, in typical CEO practice, called into service the finest experts he could find in this field – which he admitted was far from his own experience. He then followed their advice, quite uncritically. As I pointed out at the time, this was a huge gamble: if it went wrong, it could, among other things, cost him the election and even his place in history. (See https://drlarryonline.com/trumps-huge-gamble/)
After a while, he did begin to appreciate the narrowness of that perspective. But he was stuck in the middle of a lock-down which he had ordered! Thus, began the journey back to recovery, to normalcy. His diffusion of power to local politicians was a stroke of genius. Not only did he gradually shed the sole responsibility for the lock-down, but he made friends and evoked loyalties among an entire new group of politicians with whom he had had little prior contact. And it was acting out the essence of the Constitution, which sees the sovereign states as surrendering and thereby validating some of their powers to create the federal government.
This entire scenario was moving along quite nicely. Then two unexpected things happened: the Washington Democrats in Congress began to “adopt” the public health establishment, endorsing ever more stringent limitations on the population in the name of the pandemic. As this attitude began to percolate out to the state governors, the recovery slowed down.
By this time Trump and his people had fully realized that the lock-down had nearly ruined the economy and still threatened to do so. They went into overdrive to speed up the recovery. Trump was still winning, however, until the next shoe dropped: a cellphone video of the brutal murder of a defenseless Black man by a White policeman in Minneapolis went viral on social media. The reaction was a worldwide protest against civil authority in America. After a few peaceful marches, the movement turned violent and radical leadership emerged.
Among other secondary effects, the total attention of America — and much of the world – turned away from the economic recovery and toward the protesters and the rioters.
Some past events of this type have elicited soaring rhetoric from leaders such as the Reverend Martin Luther King, Jr. and Senator Robert Kennedy to begin healing the wounds. Soaring rhetoric is not one of Mr. Trump’s talents. Nor does he have the soothing, compassionate manner of a Bill Clinton or a George Bush. In the face of these disasters, Donald Trump stumbled.
The Democrat opposition immediately made him the face of the disaster. His poll numbers have tumbled, yielding to the reclusive Mr. Biden whose silence has served him well.
Trump may not be a great orator or an instinctive healer, but he does excel at one thing: he can draw thousands of impassioned participants to his rallies. This is his unique sandbox and he felt the urgency to activate it.
The Tulsa Rally was the first step on Trump’s road to recovery. It was an act of defiance to the public health establishment and their new sponsors, the Democrats and the press. It also emphasizes the simple truth that the virus is going to be around for a long time, and we have to learn to live with it while carrying on our normal economic activity. Our financial survival as a nation depends on it.
Whether Trump’s new strategy succeeds or not depends on the next steps. In one of Mr. Trump’s favorite sayings, “We’ll see what happens.”
Indeed, we will.
When Facebook started out, most Americans thought they were getting a free service to help them connect with family and friends and that Facebook would be funded by the advertisements on their computer screens. Almost no one understood that their private information was being used to create detailed personal profiles that tracked virtually everything — where they live, who their friends are, what they like and dislike, where they shop, what products they buy, what news or events interest them, and what their political views are. Monetizing each of its users is how Facebook became a billion dollar business. But very few understood that they were, in fact, the product being sold and monetized when they signed up.
We are about to see this same phenomena on replay when it comes to new high tech home security systems. But this time it will be on steroids — because firms like Amazon will have access to a lot more than just the things we chose to post online. Products like Ring are able to store this information and it can be accessed months or years later.
They will have microphones and cameras in and around our homes. They could conceivably have access to the most intensely private and personal information and even have video and photos and sound files with our voices from inside and around our homes. How will this valuable private data be used?
These security firms store this information and it can be accessed months or years later. The question is — accessed by whom and for what purposes? If past experience is any indicator, your private information will be available to whomever is willing to pay for it, and for whatever purpose generates income. But you’re not being told that when you buy these new products.
In the past, home security systems, used high tech solutions to monitor doors and windows and glass breakage and smoke to notify you and/or to call 911 when there was a break in or a fire. But they were not collecting your private information. They were not recording your conversations. They were not recording video inside your home or even who might be coming and going from your home. But all that is changing. The new frontier in home security appears to be the Facebook model — make the client the product that the company is actually selling, but don’t make that clear up front.
Many firms have used high tech automation to lower monitoring costs, and some offer lower prices because they will make it back the same way Facebook did. If you thought Facebook was gathering information about you and your family, wait until you see what they and others can do with your private conversations in the most intimate settings at the front door and within your home.
With devices in our homes that listen to our voice so that they can turn on or off lights or adjust temperatures or turn on the television, or a hundred other things, we now know that employees who listen to the devices have held parties where they all share the most embarrassing or strange events that they’ve overheard. Simply stated, employees have saved and replayed private conversations that were recorded in our homes and used them for their personal amusement. I’m pretty confident that wasn’t in the “User Agreement.” So we have to understand the potential for abuse of our private information is real and, in fact, likely.
If consumers want security services that record voice and video in and around their home, they have the right to choose that. But to be a real choice, there must be a full and complete disclosure in plain English and there must be real legal accountability for violations of the agreement.
We cannot make an informed decision when the marketing of these devices suggests that they are simply a lower cost, higher tech home security solution. That’s deceptive and it is designed to mislead consumers and lull them into a false sense that their privacy isn’t at risk.
We have the right to know what private information, voice recordings, photos and video are being recorded and stored. How will that information be used? Will it be sold? Will it be used at employee parties to get a laugh? Who has access to your private and intimate data? If you talk about something in the privacy of your bedroom, will you begin receiving push advertisements on that exact topic?
Policymakers should create clear standards that allow consumers to make informed choices. Consumers have every right to invite companies and their employees into their private lives. But it shouldn’t come as a surprise to them what the real deal is. Disclosure allows Americans to decide if they want a home security system or if they want to invite a large corporation into their home to surveil them so that they can expand their profits.
Liberals and conservatives are approaching the COVID-19 pandemic through very different moral frameworks.
In a 2008 TED Talk, psychologist Jonathan Haidt said the worst idea in psychology is the notion that humans are born as a “blank slate.”
Like the cognitive psychologist Steven Pinker, Haidt was rejecting the notion that the human mind is a blank slate at birth, an idea that can be traced to thinkers from Aristotle, to John Locke, to B.F. Skinner and beyond.
“Developmental psychology has shown that kids come into the world already knowing so much about the physical and social worlds and programmed to make it really easy for them to learn certain things and hard to learn others,” explained Haidt, a Professor of Ethical Leadership at NYU’s Stern School of Business.
Citing research from the brain scientist Gary Marcus, Haidt said the initial organization of the brain essentially comes with a “first draft.” Studying the anthropological and historical records, Haidt found that five pillars of morality exist across disciplines, cultures, and even species:
What’s interesting is that these moral pillars differ sharply across ideological lines in America today. Haidt found that both conservatives and liberals recognize the harm/care and fairness/reciprocity values (though liberals value these a little more than conservatives). Things change, however, when examining the three remaining foundational values—loyalty/betrayal, authority/subversion, and sanctity/degradation. While conservatives accept these moral values, liberal-minded people tend to reject them.
The difference is extraordinary, and it helps explain the different ways Republicans and Democrats are experiencing the coronavirus. In May, a CNBC/Change Research survey found that while only 39 percent of Republicans said they had serious concerns about COVID-19, 97 percent of Democrats said they had serious concerns.
While some of the divergence could stem from the fact that blue states have been hit harder by COVID-19 than red states, Haidt’s research would suggest that another reason Democrats are more concerned is because liberals have an intense appreciation of the care/harm moral pillar.
Indeed, the preeminence of the care/harm moral can be found in the rhetoric of many progressives.
“I want to be able to say to the people of New York, ‘I did everything we could do,’” New York Gov. Andrew Cuomo announced in March. “And if everything we do saves just one life, I’ll be happy.”
The care/harm moral is even found in the latest social media emojis. Last month, as USA Today reported in an exclusive story, Facebook rolled out its new “care” emoji.
“The new Facebook reaction—an emoji hugging a heart—is intended as shorthand to show caring and solidarity when commenting on a status update, message, photo or video during the coronavirus crisis that allow users to express how much they care about others,” the paper reported.
Cuomo’s language (and to a lesser extent Facebook’s emojis) suggests that, for many, care for others is the preeminent virtue. As such, efforts to protect people must be taken above lesser social considerations.
Understanding the different moral framework conservatives and liberals are using helps us understand why blue states have taken a much more aggressive approach in efforts to limit the spread of COVID-19.
As The Atlantic explains, with a few exceptions, such as Ohio, Republican governors have been much more reluctant to impose sweeping restrictions on their residents than states led by Democratic governors. While governors in these states no doubt value care/harm, their moral framework likely gives them a heightened concern of other social considerations, particularly civil liberties.
The lockdowns, the Constitution Center explains, have threatened many of America’s most cherished civil liberties—the freedom to assemble, the right to purchase a firearm, the ability to freely travel, the freedom to attend church or visit a reproductive health facility. They’ve also put thousands of companies on a path toward bankruptcy by prohibiting them from engaging in commerce.
These infringements tend to be viewed as reasonable to liberals, who emphasize the care/harm moral but are less likely to recognize the sanctity/degradation moral. New Jersey Gov. Phil Murphy, for example, said he never even considered the US Constitution—a document considered sacrosanct by many Americans—when he issued his lockdown order.
“That’s above my pay grade,” Murphy told Tucker Carlson in April. “I wasn’t thinking of the Bill of Rights when we did this. We went to all—first of all—we went to the scientists who said people have to stay away from each other.”
Similarly, Michigan Gov. Gretchen Whitmer saw no problem in suspending the Freedom of Information Act to prevent outside groups from assessing the model state officials used to justify locking down the entire state.
Those who view civil liberties and constitutional rights as sacred, however, are less than comfortable with such an approach. They will be less inclined to sacrifice sacred principles to support sweeping state efforts to protect people (and are probably more likely to see such efforts as counter-productive).
To be sure, some progressives do see civil liberties as sacred, and some of them have expressed dismay and bewilderment that so many progressives, in their enthusiasm for the care/harm moral, have abandoned civil liberties.
“[The COVID-19 crisis is] raising serious civil liberties issues, from prisoners trapped in deadly conditions to profound questions about speech and assembly, the limits to surveillance and snitching, etc.,” the progressive journalist Matt Taibbi recently wrote in Rolling Stone. “If this disease is going to be in our lives for the foreseeable future, that makes it more urgent that we talk about what these rules will be, not less—yet the party I grew up supporting seems to have lost the ability to do so, and I don’t understand why.”
If Haidt’s theory is correct, the reason is liberals and conservatives are, generally speaking, approaching the COVID-19 pandemic through divergent moral frameworks.
After all, the argument isn’t whether we should protect people.
“In any country, the disagreement isn’t over harm and fairness,” Haidt says. “Everyone agrees that harm and fairness matter.”
The argument isn’t even over how to best balance the care/harm moral with other considerations.
The disagreement is over whether efforts to protect individuals from COVID-19 should be balanced against other considerations—including constitutional and economic ones—at all.
The Coronavirus Is Emboldening Autocrats the World Over
In late March, Philippine strongman Rodrigo Duterte rammed a bill through his country’s parliament that granted him vastly expanded emergency powers, ostensibly to fight the novel coronavirus. The bill authorized Duterte to reallocate the national budget as he saw fit and to personally direct hospitals. “Do not challenge the government,” he bellowed in a menacing televised address. “You will lose.” Six days later, Hungarian Prime Minister Viktor Orban pushed even more expansive emergency legislation through his rubber-stamp parliament, enabling him to suspend existing laws, decree new ones, and arrest individuals deemed to be peddling “falsehoods” about the pandemic or “obstructing” the government’s efforts to fight it.
Duterte’s and Orban’s COVID-19 power grabs were especially brazen, but they were far from the only attempts by authoritarian leaders or parties to use the current health crisis as an excuse to curtail civil liberties or undermine the rule of law. Authoritarian regimes in Bangladesh, Belarus, Cambodia, China, Egypt, El Salvador, Syria, Thailand, Turkey, Uganda, Venezuela, and Vietnam have all detained critics, health workers, journalists, and opposition members during the pandemic. Democracies that have lately come under assault, meanwhile, such as Brazil, India, and Poland, have seen populist leaders or ruling parties seize on the crisis to remove checks on their power or weaken the opposition.
It will be some time, probably years, before the pandemic’s full impact on democracy around the world can be judged. The extent of the damage will depend on how long the health crisis lasts and how badly it harms economies and societies. It will also depend on how democracies fare compared with autocracies in containing the health and economic effects of the virus, on who wins the race to a vaccine, and more broadly, on who—China, the United States, or democratic countries collectively—is seen as the most generous and effective provider of global public goods to fight the pandemic. How carefully democracies monitor and circumscribe the enormous increases in governmental power that come with national emergencies will also factor into the equation, as will the ability of established democracies to summon the collective resolve to defend freedom globally in a time of rising danger.
So far, there is little reason to be reassured about the global outlook for democracy and plenty of reason to worry. The pandemic hit during the hardest period for democracy since the end of the Cold War, and authoritarian and would-be authoritarian regimes wasted no time in exploiting it to enlarge and harden their power. More danger could lie on the horizon as democratic governments weigh the dilemmas of using new surveillance technologies to fight the virus and holding regular elections in the midst of a pandemic. The downward democratic spiral can still be reversed, but it will require mobilized civil societies, effective democratic management of the health crisis, and a renewal of American leadership on the global stage.
Democracy was faltering globally even before the pandemic. For each of the past 14 years, according to Freedom House, more countries experienced an erosion of political rights and civil liberties than strengthened political rights and civil liberties, reversing the pattern of the preceding 15 post-Cold War years. While blunt military and executive coups have become rarer, more and more elected leaders have gradually eviscerated democracies from within. Politicians who initially came to power via democratic elections—such as Orban in Hungary, Hugo Chávez in Venezuela, Recep Tayyip Erdogan in Turkey, and Sheikh Hasina in Bangladesh—have packed courts; co-opted other independent institutions; squeezed the press, political opposition, and civil society; and sought to subvert or prevent the elections that might otherwise remove them. As a result, the rate of democratic breakdown worldwide has risen sharply in the last decade to nearly twice that of the preceding two decades. At the same time, fewer countries have transitioned to democracy.
Democracy was faltering globally even before the pandemic.
The democratic downturn has been particularly steep in the last five years (2015 through 2019), the first five-year period since 1975 in which more countries transitioned to autocracy than to democracy—twice as many, in fact. In January 2020, the proportion of countries with populations over one million that qualified as democracies fell below 50 percent for the first time since the end of the Cold War. Just as worrying has been the significant decay of democratic institutions and norms in democracies that were thought to be consolidated, such as India, and also liberal, such as Israel and Poland; the more subtle and little-noticed degradation of democracy in South Korea; the steady decline in the quality of democracy in the United States; and the rise of xenophobic populism and political polarization in Europe’s liberal democracies. According to Freedom House, democracy has declined in 25 of the 41 established democracies since 2006.
In short, COVID-19 attacked a world in which democracy was already under threat. The resulting public health crises enabled some leaders (such as Erdogan and Orban) to consolidate authoritarian powers they had already been accumulating and others (such as Prime Minister Narendra Modi and his ruling Bharatiya Janata Party in India) to intensify their illiberal campaigns against critics, independent news media, and opposition parties. In other words, the pandemic has mostly reinforced existing negative democratic trends, supplying illiberal governments with an incentive and an excuse for repressive tactics. Human rights defenders have paid the price in arrests, killings, and extended jail terms. The virus has cut a particularly deadly swath through prisons, furnishing cynical and murderous autocrats with a perfect weapon to use against indefatigable activists who try to hold them to account.
Still more damage may lie in store for democracy before the pandemic is done. In the name of managing the disease, governments are already implementing surveillance and tracking systems that could result in permanent losses of privacy. The apps generally work by gaining access to a phone’s GPS location and its range of Bluetooth communication. When someone who has tested positive for COVID-19 comes into contact with other people, the software alerts those contacts and advises them to self-isolate. With the proper democratic oversight and restraints, these apps can be powerful weapons in the fight to control the virus. But without such limits, they can be used to spy on private citizens and expand social control.
In India, for instance, many fear that a new tracking app rolled out in April could become a tool of mass surveillance for a government already bent on trampling civil liberties. Since Modi was first elected prime minister in 2014, his government has been assaulting venerated pillars of Indian democracy: press freedom, religious tolerance, judicial independence, and respect for dissent. Most alarming has been the Modi administration’s escalating campaign against India’s Muslim minority, which, at about 180 million, is the second-largest Muslim population of any country in the world after Indonesia. The narrative—pushed most blatantly by Modi’s extremist followers but condoned by the prime minister with the same wink and nod that U.S. President Donald Trump gave to neo-Nazi demonstrators in Charlottesville—is that Muslims (and sometimes Christians and other non-Hindu minorities) are “internal enemies” with allegiances to lands and peoples outside India. That narrative has grown only stronger during the pandemic, fueled by a vile stream of disinformation that blames Muslims and Dalits for deliberately spreading the virus. Modi has used the COVID-19 crisis to centralize authority over revenue at the expense of India’s states and parliament and to wrest control of state governments from opposition parties. Many rights activists and cyber experts fear that his government will enlist the disease-tracking app, called Aarogya Setu, to compromise privacy and monitor opponents.
Aarogya Setu was initially voluntary, but as the government eased lockdown restrictions in early May, it made the app mandatory for public- and private-sector employees as well as for people in so-called containment zones, areas with particularly high rates of COVID-19 prevalence. It also required anyone traveling by train to download the app. Later, the government took the positive steps of prohibiting the storage of individual data beyond 180 days and enabling individuals to seek deletion of their data within 30 days. To alleviate concerns about privacy and security, it also eventually opened up the app’s source code to public scrutiny (and improvement). But reasonable suspicion persists, and it may abate only if India does what all democracies should do—appoint an independent ombudsman to ensure that rules on privacy, data gathering, and use are respected.
To comply with international human rights norms, disease-tracking apps and technologies must be grounded in law, publicly deliberated, transparent, limited to the duration of the emergency, and restricted to the specific requirements of combating the virus. The MIT Technology Review has initiated an important effort to study and rate government tracking appsaccording to five criteria, such as whether or not they are voluntary, whether the data they collect can be used only for public heath purposes, how quickly that data is destroyed, and the transparency of the policies and the code that underpin them. By these measures, Aarogya Setu rates only a single star (for data destruction).
Election delays should be limited in time and proportionate to the danger the virus poses.
Privacy is not the only democratic precept under threat in the time of coronavirus: holding regular elections has become a logistical conundrum. Many democracies are left to decide which poses the greater threat: holding elections on schedule, when the opposition cannot campaign, poll workers and monitors may not show up, and large numbers of people don’t feel safe going to the polls; or postponing elections and perpetuating in power unpopular governments that voters might have otherwise ejected. The choice is straightforward in established democracies that have the time and resources to alter election procedures so that voters can vote safely from a distance, ideally by mail, or at least at fully staffed poll stations that have been disinfected and updated to accommodate physical distancing. But even in the United States—five months away from a general election—some Republicans, led by Trump, have turned voting by mail into a fiercely partisan issue, despite convincing evidence that it won’t give either party an advantage. Imagine, then, how much more fraught elections could become in countries with weaker institutions and less widespread postal services.
According to International IDEA, an intergovernmental organization that supports democracy around the world, more than 60 countries and territories have postponed elections at the national or (much more often) subnational level due to the pandemic. In many cases, doing so may have been the least undemocratic course of action. To avoid enabling authoritarian power grabs, the Kofi Annan Foundation has recommendedthat any decision to postpone elections be guided by rules that the government and the opposition agree upon, that are clearly communicated to the public, and that ensure the inclusion of vulnerable groups. As with the use of potentially invasive tracking apps, election delays should be limited in time, grounded in law and technical expertise, and proportionate to the danger the virus poses.
To protect rights, privacy, and the integrity of elections during a pandemic is a daunting task, but it is not impossible. It will require politicians, bureaucrats, and members of civil society to restrain their partisanship, adhere to sound expert advice, and submit all emergency measures to disinterested monitoring and oversight.
Before the pandemic, democracy-minded people in countries that had slid toward electoral autocracy showed that it was still possible to make democratic inroads through organized political campaigns. A campaign of “radical love” carried the opposition to a stunning victory in municipal elections in Turkey last year, and opposition parties won municipal elections in Prague in 2018 and in Budapest last October. Even in the absence of a national electoral upset, similar municipal campaigns that engage practical issues and transcend political divisions can limit the ability of autocrats to consolidate power in the pandemic’s wake. Public opinion can also help defend the frayed boundaries of democracy. The original emergency powers bill that Duterte’s office sent to the Philippine Congress in March would have enabled the president to temporarily take control of any privately owned business or utility. But congressional and public resistance forced Duterte to accept much narrower language, involving only the budget and hospitals.
Global democratic recovery will require much of the United States.
Ultimately, the pandemic’s effect on global democracy will be shaped in large part by its effect on the advanced industrial democracies and most of all, the United States. At a time when China and other autocracies are using the pandemic to trash the efficacy of democratic governance and tout their superior capacity to deal with public emergencies, free governments must show that they are up to the task. Some have already done so. Ironically, the “other” Chinese society—Taiwan—has vividly exposed the lie that competent governance in a pandemic requires the extinction of freedom. Australia, Germany, Israel, Japan, New Zealand, and South Korea have also performed well in containing the virus. The successful governments responded early and vigilantly, with widespread testing and contact tracing, and they communicated with their publics in a transparent, coordinated manner that put health professionals at the forefront. Sadly, few major countries have performed worse than the United States, whose president has routinely flouted such elementary imperatives as wearing masks, respecting science, trusting the public health leadership, and not promoting voodoo cures. The damage has been incalculable—not only to American lives but to global esteem for American democracy and hence, for democracy itself.
Global democratic recovery will require much of the United States. But first, the country must get its own house in order. Fortunately, supplies of ventilators and protective gear have rapidly increased. But national leadership, with discipline and strategic vision, is still lacking. The U.S. government must not only galvanize its people to act responsibly but also spearhead the international effort to distribute protective equipment and—as they become available—vaccines and medicines. Then, when the coronavirus has been vanquished, the United States must resume its leadership of global democracies in defense of liberty and against authoritarianism, corruption, and bullying.