Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

01 February 2017

Trump the Magician: Building Walls, Banning Muslims, Resurrecting Scalia, and Making Kids Hate Ice Cream

[For a note on what the Exclusion-Order fiasco says about Trump’s competence, click here. For some popular recent posts, click on the links below: Trump’s magic tricks
Resurrecting Scalia
Making kids hate ice cream

Trump’s magic tricks

If you want to know Trump and to understand how to fight him effectively, think of him as a magician. He cuts the lady in half, politically speaking. Then she shows up at his inaugural lunch and he tells of his “respect” for her.

He pulls rabbits out of the hat—the Wall and temporary bans on entry from war-torn majority-Muslim nations. The crowd cheers. The plebes swoon. They salute him as the Man on Horseback whom they wanted to save them from neglect and their own hyped-up fears.

They think he can work miracles. Didn’t he, with absolutely no prior political experience, wipe the GOP slate clean of all its best and brightest and beat a woman with decades of experience, who had crushed him in every debate?

But like any magic show, it’s done mostly with smoke and mirrors. The lady doesn’t really get cut in half. (Heard “Lock her up!” lately?) The rabbits don’t really appear out of thin air. The show, the show’s the thing, to make Trump into history’s latest king.

Take the Wall, for example. The highest estimate of its cost I have seen is $ 14 billion. That’s a lot of money. It could do a lot of good, for example, if invested in medical research.

But it’s a pittance compared to the $ 1 trillion that Trump has promised to invest in infrastructure, let alone the $ 3.6 trillion that our American Society of Civil Engineers says we need to invest. If even Trump’s reduced infrastructure plan goes through, it will cost us 71 times as much as the Wall.

The Wall won’t actually do much. Mexicans who want to cross it will climb or fly over it, swim or boat around it (in the Pacific or the Gulf), or dig under it, just as they did before. It will be a colossal waste of money, time and effort, serving only Trump’s political purposes.

Illegal immigration probably will decline with or without the Wall. It will decline due to stagnation of our American economy and the palpable hate that Mexicans can feel as far away as Oaxaca and Guerrero. It will fall from Mexican immigrants, documented or not, phoning and e-mailing their relatives in Mexico and saying, “Lay low. Now’s not the time to come here.” And if the statistics do show a decline in illegal border crossings, Trump will bray and crow, saying, “My Huge Wall did it all. Thank me!”

The much despised and heralded recent ban on entry from seven majority-Muslim nations is similar. It’s all a magic trick. Zealots on both sides forget a simple fact: except for Syria, it’s only for 90 days.

Why does this time limit matter? First, a permanent ban might be unconstitutional, at least without Congress’ approval. But what court is going to second-guess a president’s decision inside the core of his authority (foreign affairs) when he says something is desperately needed, just for a short time, to keep the nation safe? That’s a big ask of any judge.

Anyway, 90 days is a short time for legal action. By the time the issue is raised and briefed on appeal, the sunset date will be nearing, if not already passed. Under those circumstances, many courts would label the difficult legal issue “moot” and leave it for another day.

Finally, with the strict time limit, the ban won’t do much good or much harm. The (probably non-existent) terrorists whom Trump says it will thwart will just delay their attack plans for three months. The innocent alien graduate students stranded abroad will just have to skip a semester. (Those doing research abroad, as distinguished from taking classes here, could just continue their research.)

So the temporary ban will not change the world, whether for worse of for better. Sure, a few unfortunate, justifably terrified applicants for asylum might be injured or killed by real terrorists while waiting for entry. But to Trump voters, they will only be “collateral damage.” Few here would shed tears for them.

So you see how it works now? Under most foreseeable circumstances, the magic trick is an almost certain win for Trump. Our intrepid intelligence services have been working hand in glove with our immigration authorities since 9/11 to vet entrants from dangerous, suspect countries like The Seven. But, whatever happens now, Trump will say his ninety-day ban on entry let them improve their game dramatically. He will declare victory and let the bans expire, except for Syria.

That’s why the demonstrators at airports over the weekend played right into his hands. A Man on Horseback needs enemies. The real enemies—clever and well-financed terrorists hiding in the shadows—are hard to spot and defeat. But false enemies, such as the airport demonstrators, are easy to see and exploit. Trump will point to these political enemies and say he overcame them to keep the bad guys out and the nation safe. The rabbit will pop out of the hat, and the rubes will cheer.

If the forces of Reason, let alone progressives, are to make any headway in fighting The Magician, they are going to have to learn how to fight magic. They are going to have to learn how to defeat Big Lies, “alternative facts,” human history’s most powerful propaganda machine (Fox) and American history’s most gifted presidential magician (Trump).

That’s not going to be easy. The airport demonstrators probably delayed and scared far more innocent travelers than they persuaded. They were about as effective, in a political sense, as the Charge of the Light Brigade. The Left needs to become more strategic—a lot more—if it’s not to be buried by magic.

Resurrecting Scalia

Which brings me to the Resurrection of Scalia, in the body of Judge Neil Gorsuch. That Resurrection is the self-evident purpose of Gorsuch’s nomination to the Supreme Court. If it succeeds, the GOP and the Right will have brazenly stolen a justice from Barack Obama by refusing to do their constitutional duties for almost a year. They will have pulled off the greatest political/judicial coup in American history, right under the noses of a badly divided people.

Make no mistake about it: Gorsuch is a clone of Scalia. He may even be worse. By all accounts, he takes Scalia’s constitutional philosophy of “originalism” even farther than Scalia did, although he may not be as deft as Scalia in promoting it.

What is “originalism”? Simply put, it’s a mode of constitutional analysis that tries to let the dead rule the living. And it’s not just today’s dead; it’s the dead for about two centuries.

“Originalism” holds that, when the Constitution’s words are unclear, you dig deeply into history to discover their “original” meaning to the people who drafted it. You ignore the Constitution’s essence, the eternal values enshrined in its prose. Instead, you look narrowly at what individual words and phrases meant to the people who drafted it, often quoting obscure letters they sent to each other or to their families.

There are so many things wrong with “originalism” that’s it’s impossible to enumerate them in a short essay. So I’ll just recite two. First, it’s futile. You just can’t get inside the minds of people dead two centuries or more. Their society, their mores, their work and their daily lives, let alone their businesses, technology, wars and weapons, were incomparably different from ours today.

Not only didn’t they have radio, TV, or the Internet, automobiles or airplanes. They didn’t have nuclear weapons or small arms that can discharge twenty rounds in a second or so. When the Constitution was drafted, it took about a minute to load or reload a single round in a pistol or rifle—plenty of time for a crowd to subdue a shooter. You think that simple fact might have shaped our Founder’s views on the dangers and risks of allowing everyone to carry personal arms?

Second and more important, looking to history is just a tricky way of disguising the real motives for a decision. “Originalists” claim that all other judges impose their own values on an innocent public by interpreting the Constitution’s words. But that’s a straw man. The others first discern the Constitution’s basic values and principles, which are pretty clear from its words. They they apply those values to modern circumstances, with logic, wisdom and common sense. In contrast, “originalists” go rummaging through musty tomes of forgotten history to discover previously unknown scraps of evidence that they then feel obliged to honor.

Like all judges, justices are human. Try as they might, they cannot separate themselves and their personal philosophy and ways of thinking from the decisions they make in their work. So non-“originalists” try to discern broad, enduring principles and values in our Constitution and apply them to an ever-changing world. In contrast, “originalists” look for scraps of evidence to interpret specific words and phrases in the way they think our Founders might have done.

Often the only evidence available is the writing of one our two of our Founders, out of many. We know they all argued incessantly about everything to do with the new government they were creating. So how representative is that?

Which method is more transparent and comprehensible today? Which method better accommodates inevitable change? Which method is more like that of religious fundamentalism, which looks to past millennia for meaning, in the words of Jesus or Mohammed? You decide.

In my view, there is no better long-term way to destroy our nation and its future relevance than to tie the application and currency of its most basic values, forever, to obscure words of long-dead Founders from the late eighteenth century.

Those men (they were all men; take note, women!) may have been brilliant. But they were not gods. And they did not live in the modern world that we inhabit. Instead, they lived in an incomparably simpler, smaller, less knowledgeable and more primitive world.

So resurrecting Scalia through Gorsuch is a battle well worth fighting. It would be so even if the open Supreme-Court seat had not been stolen from President Obama and the Dems by unlawful and treasonous obstructionism.

This is the battle in which to pull out all the stops. This is the one whose repercussions will reverberate for at least a generation or two. It’s worth a thousand Walls, or ten thousand temporary bans on entry for people from seven globally and historically insignificant nations.

Making kids hate ice cream

As those among us who still retain good contact with reality learn to battle Trump strategically, we should keep an essential truth in mind. Sometimes magic contains the seeds of its own destruction. So it may be with repealing “Obamacare.”

Let’s speak true. “Obamacare” got health insurance for twenty-plus million people who never had it before. It got pre-existing conditions covered, making health insurance real insurance for the first time. It let kids use their parents’ insurance through age 26—their most financially insecure years. It kept insured people from suffering and dying due to arbitrary annual or overall caps on insurance.

In all these ways and more, “Obamacare” was like ice cream to kids.

So what did the GOP obstructionists do? They weren’t about to let a Democrat, let alone a half-black Democrat, get credit for the most valuable and beneficial social program since Social Security and Medicare. So they set about to make kids hate ice cream.

You might think that an impossible task. Yet the GOP almost succeeded. It used the full force of Fox propaganda. It made up outrageous Big Lies, like “death panels.” It said government bureaucrats would “pull the plug on Grandma,” without mentioning the private bureaucrats in private insurance companies who had already been doing that, for years and for profit, every day. With a constant barrage of brilliant lies and propaganda, the GOP and insurance propagandists almost got kids to hate ice cream.

But not quite. As time went on and the law went into effect, more and more kids who never had it before began to understand that ice cream tastes good. It’s good to live and to be healthy. It’s good to be able to afford modern “miracle” medical care. It’s good not to have so many verbal “gotchas” when you seek medical care that your life and health depend on lawyers’ tricks.

So now the right is worried. Ice cream does taste good. Health care is good—indeed vital—when you need it. Slowly, incrementally, some twenty-plus million people are coming to understand that the GOP wants to take away their ice cream. Some of them (perish the thought!) might even vote, and twenty million is a not insubstantial bloc of voters.

So the crazy GOP-controlled House that voted over fifty times to repeal “Obamacare” with no plan to replace it is now frantically searching for a plan. Some want to repeal it before replacing it, before more kids taste the ice cream. But crazy old Donald Trump is even smarter: he wants to repeal and replace it at the same time. The Old Magician understands that even a clever parlor trick can’t mollify kids after you’ve taken away their ice cream.

So here the strategy for Dems is simple. If Trump and the GOP drop their magic tricks and pledge honestly and diligently to make Obamacare better, Dems should work with them. But if the GOP tries to downsize or privatize Obamacare, or to enact any other measure that will deprive people of coverage or make it more expensive, the Dems should emphatically disown the entire enterprise and make Trump and the GOP own it.

One by one, as people lose coverage, suffer and die, the Dems should take out full-page newspaper ads, duplicated on blogs and social media, reporting their sad fates. They should make absolutely clear who and what is responsible for taking kids’ ice cream away. Then they should look forward to a rout of the GOP in 2018 as dramatic (or more so) as the Dem’s own routs in 2010 and last year.


To fight everything is to fight nothing, at least not effectively. Dems today are weakened, discouraged and discredited. So they need to pick their battles carefully and fight strategically.

Some of their angst is due to their own strategic stupidity. Sure, transgender people deserve equal treatment. And with virtually every bathroom, male and female, having private stalls, who cares what kids do in them? But imagine how you might feel as a laid-off worker who recently lost his job, his home and his family (in that order), seeing the president spending valuable time and power instructing schools to let the few-thousand transgender kids nationwide (if that many!) choose the bathroom they prefer. That, in my view, was one of the very few obvious political blunders President Obama made in his two terms.

Dems are in the minority. They are up against a propaganda machine so powerful it can make up down or black white, or kids hate ice cream. They’ve got to husband their resources, pick fights carefully and make sure they can win them, either in the law-making process or afterward, by pointing out the ice-cream deprivation.

It’s going to be a wild ride, with a half-crazy man as president, and us Yanks’ most diabolical excuse for a political party ever seeking to manipulate him to make its rich donors richer and impoverish the rest of us. There is no room for mistakes, no room for self-indulgence, no room for wasted motion, and—if our country is to succeed in global twenty-first-century competition that no leader can stop—no room for Gorsuch on the Supreme Court or Jeff Sessions ruling Justice.

The Dems cannot win every battle. Maybe they can’t even win most. But they at least ought to play in a way that lets them say, “We didn’t take our eyes off the ball.”



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