Trump Should Shine Spotlight on Shrouded Climate ‘Science’

Patrick J. Michaels

President Trump has promised to reverse President Obama’s Clean Power Plan, a controversial and possibly illegal directive to drastically alter the way we produce electricity without any act of Congress. He’s also promised to void the Paris Agreement on climate change, which he views as an executive agreement between Obama and the United Nations that will expire when he takes the oath.

These represent a major dismantling of Obama’s (and Hillary Clinton’s) climate agenda, and Trump will certainly be criticized as a scientific Neanderthal for doing so. After all, scientists worldwide have complicated computer models that agree on dramatic warming. As we here about, “the science is settled.”

There are other constructive things a President Trump could do to advance climate science — and there’s actual growing support in the climate science community for such actions.

Transparency should mean transparency. That includes all scientists, and all the public.

Most climate science is based not upon observed changes in temperature but rather on what complex computer models project the climate will be like decades or centuries from now. Much of the argument in the field is based on how accurate those projections will be, and if it is wise to base expensive policies on such questionable evidence. Yes, surface temperatures will warm up this century, but many models predict far more lower atmospheric warming than is being observed.

As Trump was making his unlikely comeback, an equally remarkable report appeared in “Science” that may be very enlightening as to how the disparity between models and reality arose, and why climate scientists have been so loath to acknowledge it. It is also leaves a roadmap for the new administration to cure this systematically ailing field of study.

As projections come not from current data but instead predictions, models must be “adjusted” because of their inability to simulate temperature behavior of the past 100 years when left to their own devices. But only now are researchers becoming more forthright about these adjustments.

As noted in the “Science” piece, there were two reasons for keeping it secret. Modellers feared when these adjustments became public knowledge, people might be a bit reluctant to believe their forecasts for the future — and that whatever political will there really is for expensive emissions reductions would evaporate.

Now that fudging — or “adjusting,” as “Science” puts it — has come out of the closet, Trump can do a great deal to shine sunlight on it.

First, as a condition of continued public funding, how about complete transparency? Modellers need to reveal all the “adjustments” in their model code that aren’t derived from basic physics and present them to the larger scientific community. Right now, the move afoot is to force complete sharing only between modellers. Transparency should mean transparency. That includes all scientists, and all the public.

The new administration also needs to find out why there has been no real narrowing of the wide range of future forecasts for 40 — yes, 40 — years, despite billions upon billions of dollars directed toward refining the forecast.

The answer is either going to be that climate modellers are all consciously or subliminally colluding to produce similar results, or that they are simply so good at climate modelling that they all get the same answer despite different methods and different “adjustments.”

In the latter case it looks like the climate modellers have done their job, and there’s no need for future public support.

That’s precisely what happened in Australia when conservative Prime Minister Tony Abbott took over in a 2013 election that looked an awful lot like ours of 2016. His agencies cut the funding for climate models to zero. His scientists, after all, had declared that “the science is settled.”

Patrick J. Michaels is director of the Center for the Study of Science at the Cato Institute.

Was Trump on to Something with Apprenticeships?

Neal McCluskey

President-elect Trump was well known before he became a reality TV star. But what elevated him to the higher reaches of the “famous” category was “The Apprentice,” in which he launched a fleeting national craze of tersely stating, “You’re fired.”

Having an apprentice seems like a great idea on reality television. In actual reality, it is likely to be a far messier thing.

Apprenticing made for engaging television. But is it a good idea in the truly real world? Is it something Trump should encourage as president? A new paper argues that what sounds like a fine idea could be very hard, perhaps even dangerous, to foster.

In “Apprenticeships: Useful Alternative, Tough to Implement,” University of San Diego Law Professor Gail Heriot lays out a compelling case for apprenticeships, explaining that many useful, in-demand skills are best learned hands-on. An apprentice watches the master of a craft, sees what can go wrong, how to fix it, and under that expert’s tutelage does the thing himself until he becomes a master. For much of American history, this was a major way people acquired marketable skills. But as time went on, schools, colleges and universities took over what apprenticeships once did.

While universities and high schools can, and sometimes do, teach useful skills, they often don’t. Colleges and universities especially tend to be dominated by faculty interested in more academic (one might even say esoteric) pursuits, and are often too bureaucratic to move with changing market demands even if they want to. Also, there may be too little demand for some very specialized skills to make it worthwhile to set up programs to teach them.

Apprenticeships could fill the gaps, and provide welcome alternatives for people not inclined toward classroom learning. But there’s a problem: Employers run a big risk of taking on an apprentice when the contributions he can make are less valuable than what he is paid, then having the apprentice bolt to another employer when he has marketable skills.

You might think it would be easy to prevent this from happening: They have apprenticeships in Germany, and whatever happened to contracts? But as Heriot makes clear, stopping a “runaway apprentice” is remarkably difficult. Indeed, as she discusses, the mechanisms likely needed to produce strong apprenticeships, perhaps including powerful national unions or new government programs, could make apprenticeships a net loser.

Having an apprentice seems like a great idea on reality television. In actual reality, it is likely to be a far messier thing.

Neal McCluskey is a contributor to the Washington Examiner’s Beltway Confidential blog.

Why Republicans Must Repeal Obamacare’s ‘Pre-Existing Conditions’ Provisions

Michael F. Cannon

Donald Trump hadn’t been president-elect for a week when he appeared to abandon his oft-repeated pledge to repeal Obamacare in its entirety. In interviews with the Wall Street Journal and 60 Minutes, Trump appeared to want to keep, or at least to be willing to accept, the Affordable Care Act’s centerpiece: it’s supposed prohibition on discrimination against health-insurance applicants with pre-existing conditions.

Ramesh Ponnuru, my friend and a senior editor of these pages, says the downside of Trump’s triangulation is that retaining those provisions “makes it much, much harder to get rid of the individual mandate” — as if the mandate were the bigger problem. On the contrary, the pre-existing-conditions provisions are the centerpiece of Obamacare. They are the reason the individual-mandate exists. It is those provisions, more than the mandate, that are driving premiums higher. It is those provisions, and not the mandate, that are destabilizing health-insurance markets, reducing choice, and causing insurers to flee. Most important (see below), it is those provisions, not the mandate, that are causing a race to the bottom where sick patients are seeing the coverage they value disappear from their Obamacare plans. If you want the sick to have more secure access to care, if you want to repeal Obamacare, the pre-existing-conditions provisions must go.

Yet Ponnuru argues “you don’t have to get rid of protections for people with pre-existing conditions altogether to scrap Obamacare.” Congress could simply modify this central provision of the law by forcing insurers “to cover people with pre-existing conditions on the same terms as everyone else so long as they had maintained insurance coverage beforehand.” In other words, Obamacare imposes price controls on premiums for both previously insured and previously uninsured applicants in the individual market. This approach would allow actuarially fair premiums for previously uninsured applicants, but continue to impose price controls on premiums for the previously insured who switch plans. As I wrote when House Republicans floated this idea, it could create an even faster race to the bottom than Obamacare already has.

Keeping the unsustainable pre-existing-conditions provisions would accelerate the insurance ‘race to the bottom’ created by Obamacare.

If the sickest patients can hop from plan to plan knowing that insurers could charge them no more than anyone else, then each year many will choose whichever plan offers the most attractive coverage for their ailments. Whichever insurer provided the most attractive coverage to the sick would end up with lots of enrollees who pay far less in premiums than they generate in claims. That’s not sustainable. To keep from going out of business, insurers would start competing to not offer the best coverage to the sick. Year after year, sick people would find their coverage getting progressively worse, not better. Just like under Obamacare. In fact, the race to the bottom could happen even faster, because Republicans would jettison mechanisms Obamacare uses to slow the degradation of coverage. Or should Republicans retain those parts of Obamacare, too?

Speaking of retaining parts of Obamacare, Ponnuru suggests Trump’s replacement plan could offer refundable health-insurance tax credits to help consumers afford individual-market coverage. As I explain here, such tax credits would preserve much of Obamacare’s entitlement spending and are indistinguishable from an individual mandate. Both a mandate and a health-insurance tax credit effectively penalize taxpayers who fail to purchase a government-defined health-insurance plan. The effective penalty under a Republican tax credit would in many cases be higher, and in all cases would be more strictly enforced, than Obamacare’s mandate penalties.

As if all that weren’t enough, the combination of health-insurance tax credits and the repeal of Obamacare’s employer mandate could cause many employers to drop coverage, which would mean the approach Ponnuru suggests could trap potentially tens of millions more Americans in that quicker-than-Obamacare race to the bottom.

We’re not talking about a “repeal and replace” plan, here. This is a plan to entrench Obamacare’s worst features into federal law, permanently, by giving them a Republican imprimatur.

Congress and President Trump should eliminate Obamacare’s pre-existing conditions provisions because they are the principal barrier to providing secure access to coverage for the sick. Any repeal bill will of course provide some safety net for victims of Obamacare — i.e., patients with expensive conditions for whom Obamacare failed to provide secure, sustainable access to care. There are ways to do so without preserving Obamacare’s most harmful and unpopular features.

If any Republicans want to keep the pre-existing-conditions provisions, try this: Have Congress send Trump the partial-repeal bill Obama vetoed earlier this year. It would have repealed Obamacare’s individual mandate, employer mandate, exchange subsidies, Medicaid expansion, many of the taxes, and much of the corporate welfare, but left the pre-existing-conditions provisions alone. If Trump signs it, Americans will see the actual costs of those supposedly beneficent and popular provisions when they cause insurance markets to collapse. The damage would be so swift and severe, Congress would quickly repeal the pre-existing-conditions provisions, filibuster or no filibuster.

Michael F. Cannon is director of health-policy studies at the libertarian Cato Institute.

A First Step to Draining the D.C. Swamp

Thaya Brook Knight

I have a must-do item for President Trump’s first days in office: Replace Richard Cordray as director of the Consumer Financial Protection Bureau.

Replace him with someone who respects not only due process and basic fairness, but who also respects the vital role that financial products play in Americans’ daily lives. The financial sector is not the enemy, and it is stunningly inappropriate for any government agency to treat an entire industry with the contempt that the CFPB has shown for those in consumer finance under Director Cordray.

Chief among the Bureau’s troubling practices has been regulation by enforcement.

Replace Richard Cordray as director of the Consumer Financial Protection Bureau.

For example, in a recent case before a federal appeals court it was revealed that the CFPB had reinterpreted a rule and enforced its new interpretation against a mortgage company, without providing any notice to the company. The company in question had relied on a long-settled practice laid out in an official interpretation of the regulation issued by the Department of Housing and Urban Development years ago.

The CFPB had the authority to reinterpret the rule, but instead of issuing new guidance, it opted to bring an enforcement action, declaring its new interpretation for the first time as it pursued a company that had had every reason to believe it was in compliance with the law.

The Constitution prohibits ex post facto laws that criminalize behavior that happened before the law was enacted. This is because it is fundamentally unfair to hold a person accountable for conduct that was not prohibited at the time it occurred. Luckily the federal court of appeals agreed with the mortgage company and ruled against the CFPB on these and other grounds.

Beyond such explicit examples, other broad policies at the agency suggest a cavalier approach to the harm the CFPB can inflict. Many agencies have a hotline for receiving complaints against companies from the public. Such a system is appropriate and ensures that the agency is responsive to the people.

What is not appropriate is the CFPB’s decision to publish what it calls “narratives,” copies of complaints it has received from the public published anonymously. The financial companies have the option of submitting a public response, but given the forum it is unsurprising that the vast majority of institutions demur.

Director Cordray has defended the program, asserting that “every complaint tells us what people are facing in the financial marketplace.” But this assertion does not explain why these complaints must be posted publicly and anonymously. The only logical reason for publishing them is to, as one industry insider put it, “name and shame” the banks. Remember that these are only complaints. Not the outcomes of trials or even enforcement actions.

Our justice system includes two bedrock principles: that an accused person is innocent until proven guilty, and that an accused person must be given the opportunity to confront the accusing witnesses. Releasing nameless complaints on the internet — although with the name of the financial institution prominently displayed — long before any investigation has even begun violates both principles, and tacitly places the CFPB in opposition to the banks from the beginning.

But the CFPB has not even been successful in promoting the interests of the consumers it claims to protect. Earlier this year it proposed rules restricting the short-term low-value loans known as “payday” loans. These rules would make it infeasible for many lenders to continue operations, not only because the rules themselves are onerous and therefore costly, but because in some instances it is unclear whether compliance would even be possible.

In response to the proposed rule, the agency received an estimated 1.5 million comment letters. Although there is no publicly available information about the breakdown of these letters, previous surveys have shown that customers are satisfied with the services they receive from these lenders.

Additionally, even though much of the rhetoric surrounding the proposed rules has focused on so-called “debt traps,” a recent study shows that borrowers do repay the loans in a few months and that the majority are fully aware of how long it will take to repay the loans.

This example highlights a fundamental fact that Director Cordray has missed: People need financial products. They need a range of products to meet their range of needs. The ability to obtain credit, ensure cash flow, save and meet financial goals is the foundation for individual and household prosperity and financial security. The proposed payday rules ignore this fact and jeopardize the ability of lower-income Americans to meet their financial needs.

The best solution, if the CFPB continues to exist, would be to change it from a bureau into a multiseat commission, with commissioners drawn from both major parties. Such a change would require an act of Congress, however, and is not within the president’s power to enact.

In the meantime, President Trump, it’s time to say “you’re fired” to Mr. Cordray and to replace him with someone who will lead the agency with the respect for rule of law, procedure, due process, and fairness that all Americans have a right to expect from their government officials. Even the Americans who work in finance.

Thaya Brook Knight is associate director of financial regulation studies at the Cato Institute.

Justice Kennedy: the Once and Future Swing Vote

Ilya Shapiro

The biggest winner from the election may be Justice Anthony Kennedy. With Merrick Garland’s nomination to fill the vacant Supreme Court seat dead and President-elect Trump expected to nominate a conservative, Kennedy will almost certainly regain his customary status as the Court’s swing vote.

“The cases swing, I don’t,” Kennedy protested during an appearance last year at Harvard Law School. Fair enough: however much scholars and pundits pull their hair out trying to understand Justice Kennedy, it’s not really opportunism or flip-flopping that drives them crazy. That might have described his predecessor as the court’s “swing justice,” Sandra Day O’Connor, the former state legislator, but it’s hard to tar Kennedy with that brush: inscrutability doesn’t necessarily mean political calculation.

Still, anyone with even a passing interest in the Supreme Court knows that this soft-spoken lawyer from Sacramento provides the deciding vote in all the close rulings that rile the nation. In those cases that break down on “ideological” lines, all eyes are on Justice Kennedy. On abortion, affirmative action, Obamacare’s contraceptive mandate, voting rights, and immigration—that was just this past term!—his views become the law of the land. The statistics bear this out: In every term but two since Samuel Alito replaced O’Connor a decade ago, Kennedy was the “winningest” justice, typically in the majority over 90 percent of the time.

But what does this mean for understanding Kennedy’s approach? Is he simply a “moderate” who agrees with conservatives on some issues and progressives on others? Or perhaps he’s a libertarian, which in this context might amount to the same thing? Kennedy has agreed with the legal positions of the libertarian Cato Institute more than any other justice.

In a sense, these labeling questions are the wrong ones to ask. By definition the jurist at the “center” of any particular court will split the difference and wind up prevailing more than anyone else. Such simplifications don’t say anything about Kennedy’s thought process, predict his vote in future cases, or instruct on how best to appeal to him. Because lord knows the Supreme Court bar tries to do that, filing “Kennedy briefs” that cite his greatest hits and otherwise try to activate the justice’s affinity sensors. Take the brief that superlawyers Ted Olson and David Boies—rivals in Bush v. Gore (2000) but comrades in the fight for gay marriage—wrote in Hollingsworth v. Perry(2013), whose introduction focuses on dignity and personal autonomy, as well as “love, commitment, and intimacy,” all buzzwords in the Kennedy lexicon.

Excellent on speech, generally good but frustrating on race and federal power, bad on statutory interpretation, and ugly on everything else, Kennedy is a sui generis enigma at the heart of the modern Supreme Court.

The “Kennedy Court”?

In 2009, two political scientists coincidentally published books on Kennedy that remain the most detailed exegeses of his legal philosophy. Frank Colucci of Purdue University-Calumet looked at all of the justice’s public writings, including materials beyond legal opinions, to produce a readable analysis called Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty. Colucci’s thesis is that Kennedy strives to interpret constitutional text in a way that properly respects the liberty that is its highest value, trying to reconcile the Founders’ intent with contemporary values. This understanding, and the book’s title, echoes Kennedy’s explication at his 1987 confirmation hearing of the judicial role “to insure that the word liberty in the Constitution is given its full and necessary meaning, consistent with the purposes of the document as we understand it.”

Helen Knowles of SUNY-Oswego took a less sweeping approach, while trying to prove a narrower point: at least in some key areas of law, Kennedy is “modestly libertarian.” In The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, Knowles argues that Kennedy’s “requirement that governmental actions pass far more stringent tests when they impinge upon liberty in ways that demean the individual, negatively affect a person’s dignity, diminish personal responsibility, or treat people in a particular way because of their race is entirely consistent with the tenets of libertarian thought.” Still, she acknowledges that the justice doesn’t “subscribe[] to a jurisprudence that is heavily influenced by political theory,” agreeing with Colucci that his methods seem to be at the intersection of originalism and living constitutionalism.

While exhaustive and nuanced, and recommended reading, these books are still unsatisfying precisely because Kennedy’s rulings defy categorization into standard judicial methodologies (originalism, textualism, purposivism) or modes (restraint, pragmatism, engagement). It’s strik­ing that the leading books about this man who has so long played the central role in our legal world were written by assistant professors in small political-science departments, rather than top law professors or legal jour­nalists at elite publications. Maybe the subject matter is just too frustrating to craft into an easy narrative.

Yet Kennedy famously wrestles with legal doctrine and tries to maintain internal consistency. Just because someone’s body of work is unconventional doesn’t mean it’s incoherent or unimportant.

In June 2012, as the nation awaited Supreme Court rulings on Obamacare and gay marriage, Time put Kennedy on its cover with the screaming-caps headline, “The Decider.” In that cover story, Ninth Circuit Judge Alex Kozinski, who clerked for Kennedy and now heads his clerkship-screening committee, is described as explaining that “Kennedy’s agonized thought process is a sign of open-mindedness and empathy, not indecision.” “His way of making up his mind in tough cases frequently was for him to try out an idea for size, like trying on a hat,” Kozinski said in his own colorful style. “Wearing it for a day, saying, ‘Well, maybe I don’t look so good in a Stetson. I think I’ll try a sombrero instead.’”

Regardless of the correct headgear, perhaps court watchers are overdoing it in giving all their attention to this Hamlet on the Hill, too hasty in labeling this the “Kennedy Court.” After all, it was John Roberts who provided the deciding vote to save Obamacare in 2012 and again in 2015, and it was Roberts who would delay the court’s ruling on gay marriage by finding a procedural way to dismiss Perry. And the chief justice is the face of the politicized voting-rights case Shelby County v. Holder (2014). More tellingly, while Kennedy wrote the opinion in arguably the most controversial case of the last two decades, Citizens United v. FEC (2010), his vote there was never in any doubt: It’s Roberts who dictates how far the court goes on campaign finance and it was Roberts’s concurrence regarding stare decisis—evaluating when it’s appropriate to overturn precedent—that set the tone for the ruling.

Nevertheless, take away the two Obamacare cases and Roberts wouldn’t really be in this conversation—not because his brand of minimalism and deference hasn’t put a stamp on the court or because he doesn’t write other important opinions, but because nobody can accuse Roberts of being generally “moderate.” Kennedy, on the other hands, abides in the middle in a way that more often than not shapes the court’s direction. Since the court’s current roster was set by Justice Kagan’s arrival in 2010, Kennedy has been on the winning side of 84 percent of cases that have split 5–4—while his colleagues are clustered between 45 and 61 percent.

As SCOTUSblog founder and frequent Supreme Court advocate Tom Goldstein put it, “it’s Justice Kennedy’s world and we just live in it.” So let’s look at the areas of law where Anthony Kennedy has made his mark—free speech, gay rights, race, government power, and abortion—to glean his overall approach.

Defender of Free Speech

While Justice Kennedy is no free-speech absolutist like Justice Hugo Black, he more than anyone else has no tolerance for content-based restrictions. According to a study by First Amendment scholar Eugene Volokh, in the latter half of the Rehnquist Court, Kennedy took the pro-speech position three-quarters of the time, by far the most. (Thomas and Souter were the next “best” at about 60 percent.) But if jurists as diverse as Kennedy, Thomas, and Souter are doctrinal lodestars, can the underlying constitutional provision be described as coherent? Actually, yes, says the libertarian éminence grise, Richard Epstein, in his seminal article “Property, Speech, and the Politics of Distrust.” Kennedy’s jurisprudence here aligns with three major arguments against content-based speech restrictions: (1) anti-paternalism—the government should not be deciding which views are harmful; (2) the protection of individual liberty and autonomy by preventing the government from “distorting” the public discourse; and (3) efforts at content-based speech restriction are often driven by suspicious government motives.

In case after free-speech case, Kennedy shows the importance of tolerance in the free market of ideas. In Texas v. Johnson (1989), the flag-burning case, he concurred to say that “sometimes we must make decisions we do not like.” In Simon & Schuster v. Crime Victims Board (1991), he concurred in striking down a New York law designed to prevent criminals from profiting from the publication of their memoirs by noting that “the sole question is, or ought to be, whether the restriction is in fact content based.” In Hill v. Colorado (2000), he dissented from a six-justice majority that upheld a 100-foot abortion-clinic buffer zone, writing that the rule was purely content-based and that providing women with information about abortion “makes a fundamental contribution to their ability to responsibly exercise their liberty.” (In an earlier buffer-zone case, Madsen v. Women’s Health Center (1994), Kennedy had joined a similar dissent by Justice Scalia, and recently in McCullen v. Coakley (2014), he joined Chief Justice Roberts’s majority opinion along the same lines.)

In Austin v. Michigan Chamber of Commerce (1990), Kennedy dissented from an anomalous ruling that for the first and only time upheld a campaign-finance restriction on a basis other than the interest in preventing quid pro quocorruption. Twenty years later, of course, he would have the opportunity to make that dissenting view into the court’s holding. “If the First Amendment has any force,” he wrote in Citizens United, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Kennedy has taken consistently similar positions in other political-speech cases such as Davis v. FEC (2008), Arizona Free Enterprise PAC v. Bennett(2011), and McCutcheon v. FEC (2014). He’s also voted to strike down laws restricting campaign solicitations by judicial candidates, as well as those targeting commercial speech, animal “crush” videos, violent videogames, funeral protests, and false claims of military awards.

“The First Gay Justice”

As important as Kennedy’s contributions are to the First Amendment, he is now most identified with 2015’s landmark ruling on gay marriage. Indeed, Obergefell v. Hodges was the fourth case involving sexual orientation in which Kennedy not only voted to strike down a restriction, but wrote the opinion. In Romer v. Evans (1996), where the court ruled against a Colorado constitutional amendment that prohibited antidiscrimination laws regarding sexual orientation, Kennedy began his opinion with a quote from Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896)—intimating that sexual minorities are no less entitled to equality than racial ones.

In Lawrence v. Texas (2003), Kennedy led the charge in striking down a Texas anti-sodomy law, a result he found so obvious that he wrote the opinion in one weekend. Professor Randy Barnett—the intellectual godfather behind the constitutional challenge to the individual mandate—called LawrenceKennedy’s “libertarian revolution” because the opinion was grounded in “personal liberty” rather than “privacy.” But other libertarians and originalists were certainly displeased that he grounded this promising analysis in the tired substantive-due-process rubric.

Alas Kennedy’s opinions in United States v. Windsor (2012)—which struck down the part of the Defense of Marriage Act that denied federal benefits to lawfully married same-sex couples—and Obergefell were even more of a doctrinal mess. Windsor combined elements of federalism and equal protection to ultimately find that DOMA violated the Fifth Amendment’s due process clause by depriving married couples of the “dignity and protection” that some states had given them. In Obergefell, meanwhile, what to my mind should’ve been an easy case about the propriety of certain marriage-licensing schemes, instead became a purple disquisition on . . . I’m not sure what. Kennedy tried to write for the ages, but rather than making an epochal statement about the equality of gays and lesbians, he produced a meditation on how the Constitution protects “a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” The rule of Obergefell seems to be that you take a scoop of due process clause and a cup of equal protection, wrap them in some dignity, and away you go.

That’s not law. For one thing, the due process clause should have nothing to do with this case. The right to “due process of law” means that the government can’t take away your life, liberty, or property for no good reason. It’s the equal protection clause that says the government can’t treat people differently for no good reason. While the clauses can overlap—to be discriminated against for no good reason can be a sort of arbitrary state action—they often don’t, because the discrimination might concern something that’s not life, liberty, or property.

Such is the case here: there’s no natural right to the state recognition of marriage. Marriage—the civil institution, not the religious rite—is a kind of government benefit. To put it in the context of injustices perpetrated against gay people, marriage is not like the right to have sex with a consenting partner. Obergefell thus differed from Lawrence, but also from Loving v. Virginia (1967), which banned, again under penalty of criminal law, interracial cohabitation. Justice Thomas was correct to point this out in his dissent, which easily poked holes in Kennedy’s flim-flam. After all, a logical extension of Kennedy’s understanding of the fundamental right to marriage is that states are constitutionally prohibited from getting out of the marriage business altogether. That can’t be right.

Perhaps Kennedy’s synthesis can best be called “equal liberty”: a rejection of the conservative idea that people seeking protection for their intimate conduct must find it in the legislature—because such bodies can discriminate against minorities for reasons that aren’t civically salubrious. Regardless, these rulings have led some to call Kennedy the “first gay justice”—in the same way Bill Clinton was the “first black president.” It’s an odd appellation for the genteel country-club Republican—one who in 1980 ruled against three seamen discharged from the Navy for homosexual conduct—but it’ll stick until someone who’s openly gay reaches the high court.

Generally Against Racial Preferences

Moving to an area in which Justice Kennedy is in somewhat better alignment with judicial conservatives, on race-conscious state action he stays within equal-protection doctrine rather than escaping into a nebulous reading of liberty. Kennedy is no color-blind absolutist like Justice Scalia was, but he views with great skepticism laws that treat people differently based on race. He acknowledges, for example, that encouraging racial diversity—particularly in higher education—is a constitutionally legitimate goal. At the same time, until this year’s quixotic Fisher v. UT-Austin II,he’d never voted to uphold a policy that attempts to achieve that goal.

As Kennedy wrote in the school-busing case Parents Involved v. Seattle School District (2007), the government can’t force diversity on society by “[reducing] an individual to an as-signed racial identity for differential treatment.” “To be forced to live under a state-mandated racial label,” he continued, “is inconsistent with the dignity of individuals in our society.” But he wrote these things in a concurrence, declining to join the chief justice’s famous plurality opinion—“The way to stop discrimination based on the basis of race is to stop discriminating on the basis of race.”—because it was “too dismissive of the legitimate interest government has in ensuring all people have equal opportunity.” At the same time, he found Justice Breyer’s dissent too deferential to the government on this sensitive matter.

So it went in Kennedy’s vehement dissent from a 5–4 ruling upholding of an FCC policy that gave preferential treatment to minority-owned broadcasters in Metro Broadcasting v. FCC (1990). There he unfavorably compared the majority’s deferential review to Korematsu—the 1942 Japanese-internment case—and warned that equating race to broadcast content set the government on the “tortuous path to racial favoritism.” A decade later, in Rice v. Cayetano (2000), he wrote the opinion against race-based voting for the trustees of the Office of Hawaiian Affairs, because they rested on “on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters.” “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” (If that sounds familiar, it’s because last Thanksgiving, Kennedy stopped a similar election that an OHA contractor was running, which stay the full court would confirm 5–4.)

Metro Broadcasting and Rice set the stage for the major role that Justice Kennedy has played regarding affirmative action. In the 2003 University of Michigan cases, Gratz v. Bollinger and Grutter v. Bollinger, the court struck down the college’s policy of giving admissions points by race but upheld the law school’s use of race as one of several factors that create a “critical mass” of minorities. Justice O’Connor provided the key vote there, finding that the law school’s “individualized, holistic review” was sufficiently tailored to the valid state interest in educational diversity (at least for 25 years). Kennedy expressed frustration that the court didn’t apply real scrutiny and that basic protections against nefarious uses of race would be suspended for an arbitrary length of time. While sympathetic to the diversity goal, he labeled the concept of critical mass a “delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.”

That brings us to the Fisher saga, in which an applicant to the University of Texas sued the school for being rejected based on her race. In Fisher I (2013), the court seemed ready to throw out UT’s admissions program and put virtually out of reach the standard that universities have to meet to consider race in admissions. This result would have aligned perfectly with what seemed to be Kennedy’s view of racial preferences: feasible in theory, unconstitutional in practice. After sitting on the case the entire term, however, the court, writing through Kennedy, issued a meek 14-page opinion joined by all but Justice Ginsburg (with Justice Kagan recused) that told the lower court to be less deferential to the administrators’ representations. Joan Biskupic’s reporting later revealed that a vehement dissent that Justice Sotomayor circulated had persuaded Kennedy and the conservatives to pull back.

After the Fifth Circuit essentially rubber-stamped its previous opinion, the justices took the case again and the conventional wisdom was that in Fisher IIwe’d see Kennedy herald the beginning of the end of affirmative action. Instead, he simply seemed to tire of the case, deeming “good enough” the university’s attempt to justify the unjustifiable in order to be rid of it—deferring to educrats despite having previously told lower courts not to defer to them. I have a more sanguine view of this ruling than most of my fellow critics, if only because UT’s admissions program is unique in the country. But it was certainly Kennedy’s most surprising swing vote of his entire tenure in that role.

This is a good place to discuss Kennedy’s approach to statutory interpretation. There’s a reason that the justice is known for his constitutional writings: he’s better at—and seems to enjoy more—that sort of first-principles thinking than he is at trying to deduce often convoluted legislative or regulatory text. In the area of race, for example, it’s hard to reconcile his opinion in Ricci v. DeStefano (2009) with that in Texas Department of Housing v. Inclusive Communities Project (2015).

Ricci held that the City of New Haven violated Title VII of the Civil Rights Act of 1964 when it invalidated the results of a firefighter-promotion test because none of those who passed were black. Officials feared that if they certified the results, they would be sued under the controversial “disparate impact” theory of liability, but Kennedy found that rationale to be insufficient to justify “disparate treatment” of the denied white and Hispanic test-takers. In Inclusive Communities, meanwhile, he accepted that the Fair Housing Act allowed disparate-impact claims even without allegations of direct racial discrimination. Kennedy did provide good language for defense lawyers, but he kept the door open for the paralysis that developers, financial companies, and housing agencies face in sued-if-you-do, sued-if-you-don’t situations.

That’s but one statutory case—another is King v. Burwell (2015), which read federal healthcare exchanges as being “established by the state”—that makes you believe the third-hand anecdote I heard about Kennedy’s opening a window in his office and yelling out towards the Capitol, “what did you mean?”

Structure Means Liberty

Returning to firmer ground, Justice Kennedy has assembled a relatively solid record on the Constitution’s structural protections for liberty—though not one without soft spots. Especially after Windsor, commentators discovered that Kennedy has a vision of federalism that supports individual rights. But federalism existed long before progressives decided that it might be a useful tool in the battle over gay marriage. Separating powers vertically, not just horizontally, is a key part of the Founding project, as is the principle of dual sovereignty—the idea that the state and federal governments shouldn’t interfere in each other’s respective spheres.

Kennedy connected these theories in his concurrence in United States v. Lopez(1995), where the court struck down a federal law criminalizing possession of firearms near schools because it wasn’t a regulation of interstate commerce. “The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability,” he explained, “one between the citizens and the Federal Government; the second between the citizens and the States.” When the court continued its short-lived federalism revolution in United States v. Morrison (2000)—invalidating the federal Violence Against Women Act because, again, there was no interstate commerce—Chief Justice William Rehnquist’s majority opinion picked up on many of Kennedy’s points.

In between those two cases, Kennedy wrote majority opinions that limited Congress’s power to create new rights that have to be honored by the states (City of Boerne v. Flores, 1997) and struck down a federal law that stripped states of their sovereign immunity (Alden v. Maine, 1999). He also joined in two important rulings that enshrined the “anti-commandeering” principle—New York v. United States (1992) and Printz v. United States (1997)—which holds that the federal government can’t compel state officials to enforce federal law.

Kennedy also strongly supports the dormant commerce clause—reading the commerce clause as not only a “sword” by which Congress can facilitate interstate commerce, but as a “shield” that prevents states from passing laws that discriminate against out-of-state interests. “The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent,” he wrote in C & A Carbone, Inc. v. Town of Clarkstown (1994). In this, Kennedy is a stronger defender of economic liberty than Scalia and Thomas, who consider the dormant commerce clause to be inconsistent with the Constitution’s original meaning and thus a “judicial fraud.”

The clearest exposition of Kennedy’s federalism views came in United States v. Bond (2011), wherein the government bizarrely prosecuted a woman for violating the federal law that implements the international Chemical Weapons Convention. “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity,” he wrote for a unanimous court, it “protects the liberty of the individual from arbitrary power.”

Using the judicial power to stop government abuse was the theme of Justice Kennedy’s magnum opus in this area, the joint dissent he authored with Scalia, Thomas, and Alito in NFIB v. Sebelius (2012), otherwise known as the (first) Obamacare case, which concludes:

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

I was in the courtroom when the ruling was announced from the bench, including Kennedy’s dramatic summary of that dissent. The starkness of his language and passion in his voice could have made you mistake him for Scalia. It was his finest hour—and really makes you wonder how the same jurist could have signed onto Gonzales v. Raich (2005), which ratified the federal government’s power to regulate plants you grow in your backyard for your own use.

Undue Burdens

Justice Kennedy’s most famous judicial act—at least until Obergefell—was his switch from the tentative five-justice majority set to overrule Roe v. Wade(1972) to joining O’Connor and Souter to co-author the plurality opinion in Planned Parenthood v. Casey (1992) that upheld Roe’s “essential holding.” The trio crafted an “undue burden” test, which invalidates laws if they have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Kennedy has played the key role in applying this test in later cases, finding constitutional protection for a woman’s liberty to end her pregnancy but recognizing that, as Knowles put it, “this is a liberty that is bounded by important state interests . . . that permit the state to require the woman to exercise her liberty in an informed and responsible manner.”

Casey involved a challenge to five provisions of Pennsylvania’s abortion law, and only its three authors joined every part of the ruling—which struck down a spousal notification requirement but upheld the other rules. Tellingly, this was not an opinion about privacy rights, opening instead with “[l]iberty finds no refuge in a jurisprudence of doubt” and concluding with similarly lofty language. It’s this kind of rhetoric that gets Kennedy in trouble not just with conservatives who disagree with outcomes, but with originalists, textualists, and others opposed to judicial pontification. In what has become derisively known as the “sweet-mystery-of-life” passage, Kennedy explained: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Still, this grandiloquence was to be checked by certain boundaries. Although the court’s duty is “to define the liberty of all, not to mandate our own moral code,” abortion is a “unique act,” not one that a woman can make without considering the “consequences for others.”

Justice Kennedy’s bounded-liberty rubric was even more on display in the partial-birth-abortion cases, Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007). In Stenberg, a five-justice majority overturned Nebraska’s ban on partial-birth abortion because it wasn’t limited to late-term abortions and had no exception for maternal health. Kennedy dissented, finding that the law survived Casey’s level of scrutiny and that the majority “repudiates this understanding [of the state’s role in legislating on abortion] by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right.” In Gonzales, Kennedy wrote the opinion for a different five-justice majority—after Alito replaced O’Connor—upholding a federal partial-birth abortion ban that likewise lacked a maternal health exception.

After taking heat from conservatives for Casey, Kennedy now took heat from liberals for seeming to contradict his own Casey opinion—as well as for disingenuously reconciling Gonzales with Stenberg rather than recognizing that he would have to overrule Stenberg to achieve his desired result. There’s some validity to the former criticism—the word “liberty” is absent from his Gonzales opinion—and the latter can only be resolved by pointing to the higher legislative craftsmanship and technical precision in the federal law than in Nebraska’s.

Finally, this past term’s Whole Women’s Health v. Hellerstedt represents a sort of inverse Fisher II: for the first time in nearly 25 years (since Casey), Kennedy voted to strike down an abortion law, Texas’s rule that clinics must meet the safety standards of surgical centers and have physicians with nearby hospital-admitting privileges. Uncharacteristically, however, it was Breyer who wrote for the court here—even though Kennedy was the senior justice in the majority and so could have taken the opinion himself. Perhaps he was also tired of this case.

Thus we’re left with an outcome whereby abortion rights are now both stronger and narrower than before Kennedy got his hands on them; in this area more than any other, he can please no one.

So Is He a Libertarian?

Excellent on speech, generally good but frustrating on race and federal power, bad on statutory interpretation, and ugly on everything else—I’ve left out subjects like capital punishment—Kennedy is a sui generis enigma at the heart of the modern Supreme Court. The Colucci and Knowles books, and shorter writings, have helped us better understand the man’s “sweet mystery” by deconstructing his faint-hearted libertarianism, but at bottom his jurisprudence is a constant struggle to balance freedom and responsibility—ordered liberty, if you will.

This balancing of liberty against other concerns can sometimes amount to an imposition of Kennedy’s life philosophy rather than either being bound by ancient text or leaving the decision to the political process. That approach, to be sure, would be decidedly not libertarian. As Jeffrey Rosen once noted in a piece for the (old) New Republic, for example, Kennedy tends to use “dignity” and “equality” in a paternalistic way, not to enhance freedom. Kennedy may thus be better described as favoring good government—one with liberty as a positive and welcome externality but that requires his workmanlike beneficence to bring the majestic law to the people.

A recent extra-judicial development sheds more light: Kennedy’s 2013 release of a “reading list for young people” titled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty.” This list includes the following canonical choices: the Funeral Oration of Pericles, Magna Carta, Edmund Burke, the Declaration of Independence, the Gettysburg Address, Churchill’s speech after the Dunkirk retreat, Kennedy’s inaugural address, King’s “Letter from Birmingham Jail,” Reagan’s speech at the Berlin Wall. It also contains some less obvious but perfectly appropriate interdisciplinary picks: Marc Antony’s funeral oration in Julius Caesar, Zola’s “J’Accuse,” Longfellow’s “Midnight Ride of Paul Revere,” John McCrae’s “In Flanders Fields,” Charlie Chaplin’s closing speech in The Great Dictator (declining the dictatorship), Solzhenitsyn’s A Day in the Life of Ivan Denisovich.

But then it veers into selections that seem cribbed from an American Studies syllabus: Huckleberry Finn, Lou Gehrig’s “Farewell to Baseball,” Robert Frost’s “The Road not Taken,” Don McLean’s “American Pie,” Michael Crichton’s The Great Train Robbery,Reese Witherspoon’s commencement address in Legally Blonde. I might like to take that class, but I’m not sure what it has to do with how the commerce clause and Fourteenth Amendment secure and protect our liberties. What’s really interesting, and explains why Kennedy is no libertarian of any recognizable mold, is what’s absent. There’s no Hobbes or Locke, no Mill (On Liberty!), Hayek, Nozick, or even Rawls.

Those absences make sense, because Kennedy seems to view liberty from a different angle than would be expected from a classic liberal or modern libertarian—who would focus on the individual, the party whose rights are impacted by illegal government action. Kennedy approaches the issue from the viewpoint of society at large, the perpetrator of the contested law. His central concern, especially where the constitutional or statutory text is unclear, is whether it has a noble or dignified purpose. It’s why he told lawyers at an ABA conference that they should strive to achieve “honorable” outcomes.

There’s a definite parallel here to Kennedy’s gay-rights tetralogy. The constant theme in RomerLawrenceWindsor, and Obergefell is the ignoble motivation behind the laws at issue—the way they denigrate a certain class of people and thus devalue our democracy. That’s a Por­tia approach (her famous “quality of mercy” speech from Merchant of Venice is also on Kennedy’s list): The law should be opposed because it represents a character flaw in those who support and enforce it. And where Kennedy is concerned for the well-being of people affected, he’s concerned for their dignity, not necessarily their rights. A libertarian can’t accept a judicial philosophy that allows oppressive laws to stand if there’s a “noble purpose,” but Kennedy the bürgermeister has a certain sense of noblesse oblige. Look at Kennedy’s silent acquiescence in Raich and his opinion in National Treasury Employees Union v. Von Raab (1989), in which five justices—over dissents written by Scalia and Thurgood Marshall!—upheld the suspicionless drug test­ing of government employees against Fourth Amendment challenge. The only way to explain these votes is that Ken­nedy doesn’t see any nobility to drugs, so their users merit little constitutional protection even if they don’t hurt any­body and are confined to their homes.

This is why those who despair at the state of religious liberty post-Obergefellhave nothing to fear from Kennedy. While the one paragraph he devotes to the issue is rather cursory and reads like an afterthought—and mentions advocacy and teaching but not “exercise”—I highly doubt that this mild-mannered Catholic would affirm the persecution of wedding vendors or force social-service organizations out of business. Indeed, he sided with Hobby Lobby inthat company’s fight for exemption from Obamacare’s contraceptive mandate and almost certainly would’ve done the same in the consolidated religious-nonprofit cases on which John Roberts engineered a punt this term, Zubik v. Burwell. It’s pretty clear that Kennedy sees a distinction between public and private action and hopes that both sides in the gay-marriage debate now respect each other’s liberties and recognize that we live in a pluralistic society.

Quo Vadis?

The perception that Justice Kennedy is a libertarian is purely a function of his role as the linchpin between the court’s progressive and conservative wings. A libertarian position is unlikely to prevail at the Court unless Kennedy agrees with it. Thus, any time there’s a libertarian “win,” he’s almost certainly in the majority—and his seniority and the fear that he might defect result in a fair number of those cases being assigned to him to write. But even as Kennedy is most often on the libertarian side in result, his reasoning is rarely libertarian: too many observers are outcome-sensitive and process-blind.

Now, if the idea of an enlightened magistrate deciding conflicts based on what he thinks is righteous, noble, and good, sounds uncomfortably familiar, it should come as no surprise that one of the first works Kennedy included on his reading list is the Allegory of the Cave. There Plato argues that it is the duty of “enlightened” philosophers—who alone among men have knowledge of what is truly good—to better the lot of the ignorant, out of pity if nothing else. This is the basis for Plato’s “philosopher kings,” who rule based on their love of honor.

But rules coming from a jurist’s special access to truth—whether empiric or moral—are incompatible with the republican state. We are thus inevitably drawn to the question of how faithful Kennedy is to the rule of law, which is a stronger measure of consistent, principled jurisprudence. The rule of law comprises values such as predictability and transparency; if a black box makes all of society’s key decisions, it’s not legitimate governance even if the results typically appeal to a majority.

Regardless of how convincing anyone’s explanation of his jurisprudence may be, if the general perception is that Kennedy decides cases in some inscrutable manner, whether based on policy preferences or some unrecognizable legal theory, he’s no better than that black box. Or, put another way, he becomes a sort of prophet who tries to convey the will of the Founding gods—which can only result in a decline in the congregation’s faith in the law.

Nevertheless, until someone replaces Justice Kennedy—who’s 80 but seems to be in excellent health—he will continue to fascinate and frustrate as he decides those cases that swing around him.

Ilya Shapiro is a fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review.

Trump’s Victory Expands the Supreme Court — and Shrinks Its Docket

Josh Blackman

President Obama’s administration has been defined by executive actions issued in response to congressional gridlock. At every stage, conservatives challenged those actions as violations of the separation of powers, and with the election of Donald J. Trump, each of them can now easily be rescinded. Though the Supreme Court will expand with a Trump nominee to replace Justice Scalia, its docket will get a lot smaller. What Obama’s pen-and-phone giveth, Trump’s Sharpie-and-Twitter will taketh away.

First, the Court’s immigration docket is set to shrink. In June 2016, the Supreme Court divided four-to-four on the legality of Obama’s executive action on immigration, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Currently, the case is pending before the federal district court in Brownsville, Texas, but it won’t be for long. Once the policy is rescinded, as Mr. Trump has promised it will be, Texas will move to dismiss the case. A bigger question looms over Obama’s 2012 immigration action, known as Deferred Action for Childhood Arrivals. DACA was not held up by the courts, and nearly 1.5 million aliens have received lawful presence under it. President Obama may renew those benefits for an additional two years, but Trump could cancel them instantly.

The president-elect could very quickly dismantle Obama’s legacy of executive action.

Second, the Court will not have to decide another thorny religious-liberty conflict. Last May, the Justices were unable to resolve the appeal of the Little Sisters of the Poor, an order of nuns that objected to Obamacare’s contraceptive mandate. Religious charities, including the Little Sisters, objected to Obamacare’s contraceptive mandate. The government insisted that female employees of the charities must be provided contraceptive coverage through the same health-insurance plan that covered their regular doctors’ visits. The charities did not object to their employees using contraceptive coverage, but wanted it to be provided through a differentplan entirely separate from their own agreements with insurers. Through one simple regulatory process, Trump could satisfy the Little Sisters of the Poor while providing female employees contraceptive coverage on a separate plan. Though it would create a slight burden for the employees, they’d get their coverage, and the Nuns would not feel complicit in sin. The Justices, who were torn by this difficult ethical question, could take a pass.

Third, the Justices will likely not have to determine the validity of the Obama administration’s policy prohibiting discrimination against transgender students in public-school bathrooms. The case of Gloucester County School Board v. G.G. concerns the Department of Education’s interpretation of Title IX of the Education Amendments of 1972: Does discrimination on the basis of “sex” include discrimination on the basis of gender identity? Obama’s DOE answered that question affirmatively in a “Dear Colleague” letter sent to educational institutions nationwide, rather than through the formal notice-and-comment rule-making process. A Trump administration could simply withdraw the “Dear Colleague” letter, and ask the Supreme Court to take the case off its docket. Schools would still be free to provide protections to transgender students, but could not be compelled to do so by the federal government.

Fourth, President Obama’s climate-change agenda is toast. With a simple executive order on January 20, 2017, President Trump could withdraw the so-called “Clean Power Plan.” The Environmental Protection Agency would then commence a new rule-making process to rescind the Obama administration’s interpretation of the Clean Air Act. And the Justice Department would ask the D.C. Circuit Court of Appeals to put the pending litigation on hold. (Recall that one of Justice Scalia’s last acts before he passed away was to halt the Clean Power Plan while the case was still pending.) Once the rulemaking process is complete, President Trump could formally withdraw from the Paris Agreement with the United Nations Framework Convention on Climate Change. Without the participation of the United States, the agreement will likely fall apart.

Fifth, the case of House of Representatives v. Burwell will draw to a premature close. The Obama administration has made payments to insurance companies that Congress never appropriated. Speakers John Boehner and Paul Ryan have pursued litigation to challenge the legality of these payments. Once the Trump administration halts the subsidies, the case will be dismissed. Insurance companies will still be free to bring private causes of action against the government, but the House’s litigation will wind down.

More generally, the insurance companies will have to deal with a unified government committed to repealing Obamacare. Because the Affordable Care Act was enacted in 2010 through the reconciliation process to avoid a Republican filibuster, the law can also be repealed through the same process in 2017. I am already planning the final book in my Obamacare trilogy. The first book was titled Unprecedented. The sequel, released last month, is titled Unraveled. The final entry will be called Undone.

Josh Blackman is a constitutional law professor at the South Texas College of Law, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.

Police Tech in Trump’s America Only a Worry If Congress Does Nothing

Matthew Feeney

During Donald Trump’s presidency technology will continue to improve. This will have a significant impact on law enforcement that should concern everyone who values civil liberties. Trump made no attempt during his campaign to hide the fact that he wants to expand domestic surveillance and pursue mass deportations. The infrastructure for such policies already exists and will become increasingly concerning as law enforcement gains access to new and improved gadgets and tools. Without Congress exercising its prerogative as a check on executive power we should all be prepared for the kind of police state Trump promised us.

The president-elect has repeatedly demonstrated a penchant for domestic surveillance, whether it’s drones on the bordersnooping on mosques, “closing that Internet up,” or restoring Patriot Act provisions. Trump has also not been shy about dismissing civil libertarians who, in light of such proposals, express anxieties. When discussing his Internet-closing policy Trump described those who have free speech concerns as “foolish people.”

Assuming Trump remains committed to the policies he outlined during his campaign, we should be preparing for a reinvigorated bout of surveillance aided by new and improving technologies.

Trump has also supported the mass deportation of 11 million people, a policy that would require an extensive program of surveillance as well as a massive dedication of law enforcement resources. It would also, incidentally, be a logistical nightmare that would make D-Day look like an episode of Sesame Street.

During the campaign Trump positioned himself as a tough-on-crime candidate, winning himself endorsements from The Fraternal Order of Police and a union representing Immigration and Customs Enforcement (ICE), though Trump confused this with being endorsed by the federal agency. Trump has also backed the widespread implementation of “stop-and-frisk” as a means of tackling crime.

While law enforcement in the United States in predominantly a state and local issue, the executive branch does oversee the country’s largest law enforcement agency (Customs and Border Protection), a force that operates in a “Constitution free” zone where two-thirds of Americans live. The executive branch also has authority over some of the best-funded and best-equipped law enforcement agencies such as the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA).

Given Trump’s policy preferences and the fact that he will have a tremendous influence over an extensive law enforcement network it’s prudent for us to take a look at what tools are or soon will be at his administration’s disposal.

The federal government already uses drones, and despite the fact that they have a poor track record when it comes to domestic surveillance, Trump has said that drones have “great capabilities for surveillance” and should be flown above our border. Drone technology is improving, with Facebook announcing earlier this year that its solar-powered Internet-delivery drone, which has a wingspan larger than a Boeing 747 and is expected to be able to stay aloft for months at a time, had carried out a successful test flight.

But it’s not only large drones that ought to prompt concern. Drones the size of birds have already been used by militaries to conduct surveillance. Military equipment has a tendency to migrate from the battlefield to the home front, and we shouldn’t expect small drones to be an exception. Drones the size of insects are already with us and will surely be used for surveillance once technology allows.

Military drones are often equipped with surveillance cameras, some of which allow operators to keep entire towns under persistent surveillance. Such technology is too expensive for most domestic law enforcement, but CBP already has access to wide area surveillance systems, and this video technology will almost certainly become cheaper as it improves. Persistent surveillance tools mounted on manned aircraft are already available to domestic law enforcement. Reporting in August revealed that police in Baltimore had been using aerial persistent surveillance tools in secret for months. Law enforcement agencies governed by the Trump administration could use such technology in the next few years.

These persistent surveillance tools are not being mounted on massive solar-powered drones at the moment, but such tools may well soon be with us and no longer reserved to the imaginations of science fiction writers.

Drones can serve as mounts for a whole host of surveillance equipment such as thermal scanners, license plate readers, and laser radar that allows users to see through trees. In the near future biometric surveillance tools such as facial recognition software could be mounted on drones.

This is especially concerning because, according to a Government Accountability Office report released earlier this year, the FBI has access to more than 411 million facial photos and needs to “better ensure privacy and accuracy.” A Georgetown study from October found that “One in two American adults is in a law enforcement face recognition network.”

Assuming Trump remains committed to the policies he outlined during his campaign, we should be preparing for a reinvigorated bout of surveillance aided by new and improving technologies. The Founding Fathers were smart enough to design a system of checks and balances to halt disturbing and unwarranted growths in executive power. This is especially important at a time when the presidency has grown into something of a cult, with significant influence over a vast law enforcement and intelligence apparatus. But these checks only work if Congress is interested in using them. Only time will tell us if our elected representatives are so inclined.

Matthew Feeney is a policy analyst at the Cato Institute.

7 Things the Trump Win Means for the Supreme Court

Ilya Shapiro

The election result caught legal pundits by surprise as much as anyone else. Although the vacancy left on the Supreme Court by Justice Antonin Scalia’s passing—and judicial nominations more broadly—didn’t play as big a role in the campaign as leaked videos and emails, this issue is now at the forefront of the new administration’s transition plan. Here are some lessons we can take into that political fight:

1.The nomination of Judge Merrick Garland nomination is dead.

Does this mean that Trump will indeed pick someone from his list of 21 potential nominees? It’s a terrific list, to be honest, and is perhaps most notable for including 9 state jurists. Will we get one of those on the Supreme Court for the first time since President Reagan picked Sandra Day O’Connor in 1981?

Here are some of the lessons we must take into the political fight for the Supreme Court.

2.Senate Republicans’ strategy of not even considering Garland, of letting the American people decide who gets to fill Scalia’s seat, worked.

Not only that, but it didn’t at all hurt vulnerable senators running for reelection. Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley are now emboldened to pursue a broader legal-policy agenda.

3. The Swing Justice

Anthony Kennedy will almost certainly continue to be the “swing justice” on most controversial issues—all of those on Trump’s list would be considered more conservative—so he may have been the biggest winner last night.

4. It’s Not About Garland

I feel sorry for Garland, a respected jurist and honorable man who’s been in limbo for nearly eight months. That said, this wasn’t about him and I would’ve advised voting against him. (But don’t feel too badly for him: he maintains his lifetime appointment on the D.C. Circuit.) Senate Democrats will now play similar hardball, which will likely cause McConnell to get rid of the filibuster for Supreme Court justices just as Harry Reid did for lower-court nominees when Democrats controlled the Senate.

5. Who’s in Trump’s Ear

An open question is what happens when Trump realizes that the sorts of judges he’s been advised to appoint would rule against him on various matters. We can only hope that he continues listening to the same legal advisers that put together his nominee list.

6. Obamacare

If you live by executive action, you die by executive action—which means that many looming high-profile cases involving President Obama’s rule-by-decree will simply go away. DAPA (executive action on immigration) and the Clean Power Plan (carbon-emission regulation despite congressional rejection) will be rescinded, religious nonprofits will be exempt from Obamacare, the Department of Health and Human Services won’t make the illegal payments that have led the House of Representatives to sue Secretary Sylvia Burwell, and more. That may also include the transgender-bathroom guidance, which if rescinded would moot the biggest case from the Court’s current term.

7. Case Closed

With the election of (my friend and University of Missouri law professor) Joshua Hawley as Missouri’s new attorney general, the not-yet-scheduled Trinity Lutheran case regarding church eligibility for state playground funds will likely be settled.

Finally, while I won’t hold my breath, the New York Times editorial board really ought to include “It turns out that Ilya Shapiro was right” in its editorial urging senators to reject Trump’s judicial nominees.

 

Ilya Shapiro is a senior contributor to the Federalist. He is a fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review.

Trump’s (Few) Good Ideas

David Boaz

In my circles, Donald Trump’s policy agenda was viewed dimly: throughout the campaign it seemed that his main commitments were to block trade, stop immigration, deport 11 million people, and ban Muslims from the country.

I myself wrote about his “insults, secret plans, and a promise to kick everybody else’s ass,” right after seeing him speak in the summer of 2015, and I contributed to National Review’s “Against Trump” cover story. Still, if I could admire Hillary Clinton’s secret support for “a hemispheric common market, with open trade and open borders,” I can find the occasional nugget in Trump’s basket of deplorable policies.

Trump had many policy positions on his website, from child care to cybersecurity. Many of them never seemed to really hold his attention.

Republican voters nominated and elected a candidate who rejects the bipartisan Washington commitment to global interventionism.

But he did return repeatedly to some interesting ideas about foreign policy that were different from the usual Washington talk in both parties. He was wildly inconsistent, sometimes talking about torture, illegal orders to the military, and a determination to “take the oil.” But he correctly pointed out that our current foreign policy hasn’t worked very well. And indeed he had made a similar point in a full-page ad in the New York Times in 1987.

That’s an aspect of the 2016 campaign that hasn’t gotten enough attention: Republican voters nominated and elected a candidate who rejects the bipartisan Washington commitment to global interventionism.

So let’s identify three policies Trump advanced that he ought to stick with in the White House:

The promise that “war and aggression will not be [the president’s] first instinct.”

That ought to go without saying. But we’ve been involved for the past 25 years in a seemingly endless war in the Middle East, and there’s no end in sight. Wars that began with limited purposes — to block Saddam Hussein’s takeover of Kuwait, and to retaliate against al Qaeda and the Taliban in Afghanistan for the 9/11 attacks — have metastasized into a region-wide campaign of regime change and nation-building. A president who rose to power on the strength of an antiwar speech and who received a Nobel Peace Prize on spec will leave office having bombed seven countries and with the two longest wars in American history still running.

In that world, the understanding that “caution and restraint are really truly signs of strength” would be a welcome change.

We must abandon the failed policy of nation building and regime change that Hillary Clinton pushed in Iraq, Libya, Egypt and Syria.”

As Jeffrey Sachs wrote recently, the past quarter century “has therefore been marked by a perpetual U.S. war in the Middle East, one that has destabilized the region, massively diverted resources away from civilian needs toward the military, and helped to create mass budget deficits and the buildup of public debt. The imperial thinking has led to wars of regime change in Afghanistan, Iraq, Libya, Yemen, Somalia, and Syria, across four presidencies.”

Foreign policy elites in both parties think this record hasn’t been assertive enough, especially in Syria. Establishment think tanks are churning out recommendations for the Hillary Clinton administration to take more aggressive military action in the Middle East and on Russia’s borders. These were the same people and organizations that either actively cheered on the war in Iraq in 2003, or were silent. President-elect Trump needs to bring new voices into his administration.

It’s time to rethink NATO.

Trump repeatedly suggested that NATO, the keystone of U.S. global interventionism, is obsolete. He also declared that the United States “cannot be the policeman of the world” and that it is time for Japan and Korea to assume more responsibility for their own defense.

NATO was created in 1949 to defend war-ravaged European nations from a Soviet Union that had extended its control over much of central Europe. As we approach the alliance’s 70th anniversary, it’s surely time to consider whether NATO is indeed, as my colleague Ted Galen Carpenter writes, “an obsolete security arrangement created in a vastly different era to meet an entirely different security situation.” The foreign policy establishment, including Hillary Clinton, sharply attacked Trump’s position. But now that the heat of the election is past, we should have a real debate on the value of far-flung alliances to American security.

Foreign policy elites remain committed to global interventionism. But voters don’t like these endless wars. And for all of Republican politicians’ insistence on a robust and more costly military, Republican voters aren’t keen on constant intervention.

As neoconservatives and Republican senators beat the drums for military action in Syria, Republicans turned sharply against the idea — 70 percent against in September 2013.

Perhaps most broadly, a massive Pew Research Center survey in December 2013 found that 52 percent of respondents said the United States “should mind its own business internationally and let other countries get along the best they can on their own.” That was the most lopsided balance in favor of the U.S. “minding its own business” in the nearly 50-year history of the measure. That number dipped to 43 percent in 2016, but a similar question — whether the United States should “deal with its own problems and let other countries deal with their own problems the best they can” — found 57 percent agreement in 2016, and 62 percent of Republicans.

Candidate Trump never presented a coherent 21st-century foreign policy. But he did repeatedly raise some important concerns, and he proved that Republican voters — and perhaps even, or especially, military veterans — aren’t reflexively hawkish. His administration should broaden the foreign policy debate to include these questions.

And maybe there’s one more idea that ought to survive from the 2016 campaign. It wasn’t Trump’s idea, or Clinton’s. But the prospect that Trump will acquire the awesome powers of the modern presidency — and the fact that Hillary Clinton could have – should inspire both Democrats and Republicans in Congress to start reasserting their authority and obligations under the Constitution. Sen. Tim Kaine, his profile elevated by being Clinton’s running mate, has been a leader in the Senate for reining in presidential warmaking; he should return to the Senate even more determined to insist that only Congress can take the country to war.

David Boaz is executive vice president of the Cato Institute and author of The Libertarian Mind (Simon & Schuster, 2015).

Why This Election Made Us Hate Ourselves

Vanessa Brown Calder

It’s the day of the 2016 presidential election, and only a matter of hours before the next President of the United States is revealed. There’s not a phone call left to be made, or a door left to be knocked on in pursuit of our favored candidate. Instead, there’s only a quiet moment to reflect on the rocky road that led us here. As we consider the angst that we’ve experienced over the course of the preceding months, the insults, the outrage (real and feigned), the finger-pointing, name-calling, moralizing, grandstanding, and mostly fruitless debates, one can’t help but ask — how did this election make us hate each other so much?

This election cycle has made it abundantly clear how quickly voters — including each of us and our friends and associates — bow to practical politics, turning a blind eye to the gaping flaws of their candidate of choice, and throw principles overboard.

It’s pretty simple, really. This election cycle has made it abundantly clear how quickly voters — including each of us and our friends and associates — bow to practical politics, turning a blind eye to the gaping flaws of their candidate of choice, and throw principles overboard. It’s all in the name of a good cause, of course. Save the country, they say.

Let’s zoom out. There are two characteristics of a candidate that generate respect: 1) they’re privately principled and 2) ideologically principled. Being privately principled means that you spend your life striving to be ethical, honest, and kind. Don’t laugh; virtue in politics is rare, but not unthinkable. Being ideologically principled requires an authentic commitment to the policies and values you espouse, not mere consignment for the sake of political expediency. These characteristics secure respect for our leaders and, by extension, for each other.

Both Trump and Clinton fail so unmistakably on both fronts, from telling laughably bald-faced lies and lobbing insults to political maneuverings and underhandedness. It’s simply impossible for a principled voter to ignore.

By choosing to vote or advocate for either candidate out of sheer practical necessity alone, we give legitimacy, credence, even reinforcement to their respective failures. Then, as we discover our own friends and associates finding improbable rationales for overlooking a candidate’s faults, it becomes difficult to respect each other. Instead, each of us simulates the very thing we formerly detested: a willingness to bend and twist to meet practical political considerations, and reduce principle to an inconvenient impediment to our political objectives. Throughout the 2016 election, we’ve become mirror images of the candidates we despise.

Of course, America can’t be expected to turn out a George Washington or Abraham Lincoln every four years. But this election cycle has made us question the depths to which we and our associates are willing to sink for practical politics. In such a compromising situation, a committed Libertarian would advise “don’t vote, it just encourages them.” Unfortunately for America, it’s far too late for that.

So vote for Clinton or Trump if you must — you probably already have. The next president’s imminent scandals and failed policies will soon give us reason to try to forget whom we voted for. When that happens, let’s be sure not to champion and defend unprincipled actions and words simply because partisan instincts whisper, “It might be worse.” It could always be worse, but if we lose respect for each other as we lose sight of our principles, it will surely never be better.

Vanessa Brown Calder is a policy analyst at the Cato Institute, where she focuses on social welfare, housing, and urban policy.