Rule of Law

PROLEGOMENON. Once upon a time, TOF noted that Jerry Falwell had accused the Inquisition of killing several millions of heretics during the Middle Ages. TOF merely observed that this now-forgotten figure would have meant the slaughter of virtually the entire population of the continent, despite the Inquisition not being present in about half the countries. (There was no Inquisition for example in England, Scandinavia, most of Germany and northern France.) Falwell's figures were therefore being used as exclamation points rather than as actual historical estimates. 

The response by far too many commentators was to accuse TOF of championing and supporting the Inquisition. It was as if some who had said "No, Hitler's minions did not kill 100 million Jews as you claim; it was closer to 6 million." And the reaction would be "So! You are defending Nazism!" 

But criticism of an argument is not a defense of the matter being argued. 

Given this caution, let us continue.  

 

AMONG THE MORE DIFFICULT matters in government is one summed up in the legal maxim: "Hard cases make bad laws."That is, an extreme case is often a poor basis for a general law, since the general law would cover a wide range of less extreme situations. Thus, requirements possibly useful in extreme situations are imposed on ordinary actors. For example, the Dodd-Frank¹ law was imposed consequent to the collapse of the sub-prime home mortgage market during the dip in the Juglar cycle.² The provisions of that act, while imposing a heavy burden on smaller specialty finance companies and banks who played no part in the meltdown, are nonetheless unlikely to sweep back the sea of cycles that have been rolling along since who flung the chuck. Likewise, the Patriot Act (with its overtly feel-good title) reacted to 9/11, notwithstanding the fact that had its provisions been in place at the time, none of the events of that day would have been prevented.

It's like the management that reacts to defects in the product by implementing 100% inspection, even though 100% inspection is largely ineffective. In problem-solving, a solution must address the actual root causes of the problem, not simply screen for the defect; but in government, problems are simply opportunities to do whatever you wanted to do already. 

"Never allow a good crisis to go to waste when it's an opportunity to do things that you had never considered."
-- Rahm Emmanuel. 19 Nov 2008

Extreme cases are liable to arouse emotional investment and this leads to poor laws. Glanville Williams wrote, "It used to be said that 'hard cases make bad law'—a proposition that our less pedantic age regards as doubtful.³ What is certain is that cases in which the moral indignation of the judge is aroused frequently make bad law." (Wikipedia)

We can see this clearly in engineering where sometimes-tragic manufacturing flaws result in absurdly strict design changes because legislatures and courts (and even managers) do not distinguish between doing the right thing and doing the thing right. That is, between quality of design and quality of execution. There are times when a design change can prevent an operational error, but typically if a problem happened because an operator failed to follow a procedure, the solution is seldom a more complex and burdensome procedure. 

Now there are times when an extreme case is exactly what you need to make a good law. No one designs a flood-control dam to handle the average flow of a river, since half the time (roughly) the flow will be more than the dam can handle. Instead, dams are designed to withstand the "hundred year flood." This is the flow that has a 0.01 probability of occurring in any given year. The return period is 1/p = 100 years.⁴

EXECUTIVE ORDERS. Something more is needed to declare an executive order (EO) as unconstitutional than "I don't like this!" It must actually be unconstitutional; and that means embodied in the actual Constitution as written or in standing laws. We can't say a constitutional grant of power is legitimate only insofar as it is used in ways we favor, but suddenly becomes wicked when it is used otherwise.

Or worse: when it is used by someone we just detest.

Naturally, we are referring to Donald Trump. [Pause here for boos and hisses and general loss of all reasoning powers.] Now, TOF yields to no man in his regard for Mr. Trump's apparent deficiencies in cognitive skills. The dude seems to have been operantly conditioned more even than a teenager into the short-attention span of tweet-thought. His command of the English language and apparent inability to speak in paragraphs or complete sentences make George W. Bush appear the second coming of Cicero.⁵ But that Trump may be wrong does not mean that his critics are right.

Let's consider an example.

Notes:
1. Dodd-Frank. "Smaller specialty finance companies and banks who played no part in the meltdown are now having to gather more customer information, which must then be kept confidential, and report on it, which requires investment in systems and people to do the reporting. These are non-trivial expenses, to be borne by those who had nothing to do with the collapse and stand no chance of causing another one. Meanwhile, Goldman Sachs, which actually did play a part in the financial collapse..., gets to do whatever they want, at least insofar as new regulation is concerned. They supply all the upper management at the US Treasury – out of the patriotic goodness of their hearts, no doubt." (Joseph Moore)
2. Juglar cycle: an approximately nine-year cycle in fixed investments. When it drops, our custom is to find the nearest person we don't like and blame him. In the old days, we put the king in a wicker cage and burned him. Note that the Juglar and Kitchin cycles are on track to blame Trump for next year's winter recession, as forecast in Falling Stars.

Silver-tongued devil

3. less pedantic. The extent to which "less pedantic" overlaps "less thoughtful" is left as an exercise for the reader.
4. hundred-year flood. My hometown of Easton PA once experienced three hundred-year floods in the span of three consecutive years: 2004-2006. Seems improbable, but years are not independent events like dice rolls. Weather patterns persist: wet years more probably follow wet years.
5. Cicero. Compelling and persuasive speechifying is independent of the value of the ideas being persuasively spoken. A silver-tongued devil with the power to move stones to weeping remains at bottom a devil nonetheless. And a stumble-tongue can speak sooth, despite has trouble making his point. See the Oracle at Delphi for details.

MUCH IN THE NEWS lately is a travel ban similar to what ex-prez Obama recently placed on Cuban refugees fleeing that island regime or that Carter placed on Iranians back in the day. Is Trump's temporary pause any more heinous than Obama's apparently permanent halt to refugees from Cuba? Why riots in the one case and not in the other?

One method of effective propagandizing is the repetition of the same easily-remembered phrase. This is well known to commercial advertisers ["Where's the beef!"] as well as political operatives ["Russian hackers!"]. Note, for example, the repetition of three-word slogans by protestors ["Lock her up!" "Dump the Trump!"]. Watch your news and you will hear that the countries covered by the travel ban are referred to as "seven predominantly muslim countries" [or "seven majority muslim countries"] as if that were the only thing the Seven have in common.⁶ The idea is to propagate the notion that the travel hiatus has something to do with muslims.

When you tell people what they want to hear, you don't have to be too careful about premises, facts, and conclusions.
-- Angelo M. Codevilla

Now, majority muslim states include many other states with far more muslims in them, such as Indonesia, Bangla Desh, Egypt, Turkey, Morocco, etc., none of which are covered by the Executive Order. So the purpose of the EO can hardly be to bar muslims. Some have suggested that this is because Trump has business interests in these other countries but not in the Seven. However, the list of countries was drawn up by the Obama administration, not by the Trump administration. That Obama would be so tender of Trump's business interests defies reason.

The Seven states affected by the EO are shown on the map above. Can anyone think of any thing these seven have in common other than that they are majority muslim? Anyone? Bueller?

The US visa-waiver program allows the citizens of more than 30 countries to visit for short stays without a visa. But if a citizen of an eligible country has visited—with some exceptions—Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011— that person must obtain a visa first, under measures put in place by the Obama administration.

Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

• Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
• Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

IOW, Mr. Obama put travel restrictions on Europeans (and a few others) who had even so much as traveled to the seven "countries of concern." Mr. Trump imposed a temporary halt in issuing those visas until the visa process has been thoroughly evaluated.

This is not because the "countries of concern" are "predominantly muslim," nor even because they are a major source of terrorists in the US, but because of their inability or unwillingness to provide the information needed to adjudicate a visa under the INA. They include failed states (Libya, Somalia), states engulfed in civil war with jihadis (Yemen, Syria, 'Iraq), or are state sponsors of terrorism (Sudan, Iran). Hence. the Obama administration determined that clearance to fly to the USA from any of these countries could not be relied upon.⁷  

Notes
6. only thing in common. This is why the Court Oath is not simply to tell the Truth, but to tell the whole Truth. 
7. Obama administration. The common delusion that the Obama administration did nothing in this context is also a case of confirmation bias. Whether too much or not enough is a separate question.

Civilization, in fact, grows more and more maudlin and hysterical; especially under democracy it tends to degenerate into a mere combat of crazes; the whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by an endless series of hobgoblins, most of them imaginary.
-- H.L.Mencken

AS IT HAPPENS, "black-letter law" -- i.e., the actual statute as written -- grants the power to restrict travel into the US to the president per 8 U.S.C. 1182(a)(12); to wit:

Title 8 - ALIENS AND NATIONALITY8 U.S. Code § 1182 - Inadmissible aliens

CHAPTER 12 - IMMIGRATION AND NATIONALITY
SUBCHAPTER II - IMMIGRATION
Part II - Admission Qualifications for Aliens; Travel Control of Citizens and Aliens
Sec. 1182 - Inadmissible aliens
Subsec. (f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This seems pretty clear. The president may not be wise to do so, but there is no doubt that he is given the authority to do so, and in pretty broad strokes. Notice that "any class of aliens" would allow the President to bar left-handed Albigensians should he determined that they pose a threat.

So what did Trump's actual executive order state?

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES⁸

 ...conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

[This review is to take 90 days, with progress reports at intervals of 30 days.]

  ...the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

[For example, the recent case of an Iraqi national who had worked as an interpreter for the US.]

the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest -- including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship -- and it would not pose a risk to the security or welfare of the United States.

[The boldface portion is troubling, since it would seem to indicate that recent cases involving persons already in transit were in fact contrary to the executive order, and were the result either of over-enthusiasm or "white mutiny."⁹]

Notes
8. protecting the nation... Notice the modern trend toward feel-good titles.
9. white mutiny. a/k/a "malicious compliance."

Trump still appalls me, but not nearly as much as the out of control frothing attacks on him. -- Joseph  Moore

EMPIRE STRIKES BACK
Shrieking fits that the EO is unconstitutional amount to claims that 8 U.S.C. 1182(a)(12) is unconstitutional, which is a considerably broader claim. Folks are welcome to shriek that the EO is unwise, though claims that it is a recruiting tool for ISIS seem overblown. Does ISIS really need such a tool? Meanwhile the Empire Strikes Back.

That is, the Empire of the Unelected: the Permanent Bureaucracy and the federal judiciary. Instead of democracy, we are to have bureaucratocracy and dikastocracy. People who have grown accustomed to getting their own way can grow terrified of opposition. Democrats have not been this riled up since the Republicans took their slaves away.

Alan Dershowitz, no friend of Trump but a great friend of the Rule of Law, wrote in the Hill:

[Yates] referred to [the order's] possibly being unconstitutional and unlawful. Had she stuck to the latter two criteria she would have been on more solid ground, although perhaps wrong on the merits. But by interjecting issues of policy and directing the Justice Department not to defend any aspect of the order, she overstepped her bounds.  An attorney general, like any citizen, has the right to disagree with a presidential order, but unless it is clear that the order is unlawful, she has no authority to order the Justice Department to refuse to enforce it.

A slow-motion Contitutional crisis is brewing. The Permanent Bureaucracy is in revolt.

While many federal workers have begun to consider avenues of dissent only since the inauguration, others had been preparing for weeks. In the last days of Obama’s tenure, several departments catalogued data and reports and got them into the hands of allies outside the government.

That ought to seem dangerous to anyone who loves democracy. But then, the Enlightened regard the American people as irredeemably stoopid.

the federal employees have been "in regular consultation with recently departed Obama-era political appointees about what they can do to push back against the new president’s initiatives. Some federal employees have set up social media accounts to anonymously leak word of changes that Trump appointees are trying to make."

IOW to strategize ways to undermine Trump they are setting up sites like alt-DOJ or alt-EPA and so on. This is not entirely new, only more extreme. Former Bush administration official Hans von Spakovsky told Independent Journal Review that

“I saw this same kind of behavior amongst career lawyers inside the Justice Department during the George W. Bush administration; although, they were not quite as blatant about it as these federal employees.”

Jerry Pournelle writes:

Apparently I am nearly alone in seeing this judicial revolt as a true constitutional crisis, fully deserving impeachments by the House even though Senate convictions are unlikely. I am not arguing the wisdom of Mr. Trump’s immigration executive orders, other than to say they are hardly unexpected given his campaign; but their legality is manifest. Even those disliking them say so. The Constitution gives Federal authorities control over immigration; not states. That’s the Congress and the President; there might be room for judicial mediation if these two branches were in serious dispute on this, but they have not been asked.

Black letter law gives the President authority to suspend or delay admitting any class of immigrant he sees fit if he declares it a matter of national security. That law has been in effect for a long time. Mr. Obama used it in reverse to admit migrants and refugees; he did not see them as a threat to national security. That was his prerogative as President, whether we agree or not. A judge could not have ruled that he was wrong. Congress could impeach him, or strip him of the power (although he could veto that legislation; a simple majority ruling would not be sufficient). Neither was done and his rulings stood. The same is true now with Trump: he has black letter law on his side.

Mr. Trump does. This decision might be questioned by Congress, but even Congress has no authority to stop his actions without considerable more procedure than we have seen, and as a matter of fact it will not do so. So the President takes an action that his predecessor says is wrong, and the Courts suspend the order, because they do not find that this is a national security issue. That is not for them to find. That is a matter for the President and Congress.

This is a grave constitutional crisis, and it does not look like ending well.

All of this is independent of whether one likes Mr. Trump or approves of his EO. TOF does neither. The EO is no more likely to make America safer than Dodd-Frank is to duck the next Juglar Cycle. It amount, as did so many past laws and orders, to "virtue signalling." Just a different set of virtues signaled to a different set of people. This is invisible to the Usual Suspects because they don't talk to Those People. But all of the rioting and protests and near-treasonous activities within the Permanent Bureaucracy will do far more to solidify the coalition that elected Trump than it can do to undermine him, for every such action taken will be seen as further proof that he was right.

His opponents are so over-the-top that routine events, like criticism of judges, is treated not only as beyond the pale but as unprecedented, simply because Mr. Trump has done so. What was applauded in one administration causes attacks of the vapors and fits of pearl-clutching in another. There is so much noise on the channel regarding trivia that no one is conducting triage on Trump actions or hearing the signal.

"Foolish though the recently elected president may be, the precedent of having unelected officials within the government try to destroy or route around a chief executive they don't like is terrible. No matter how incompetent or misguided our president may be, it's deeply worrying to move towards a system in which the government's powerful bureaucracies take on and try to get rid of elected officials they don't like. We as voters have no way to either replace those bureaucracies nor to redirect them. Our system of government relies upon them following the orders of the executive and the legislature. If they begin to see themselves as above that, we risk a tyranny of 'the experts' which would probably do none of us (in the long term, not even the experts) any good." 

-- Darwin Catholic