Thoughts On Intent in Government Enactments

It seems to me that most f the discussion about the role of intent in analyzing the legality of government actions has been pretty fuzzy.  So let me offer some thoughts. Of course, this issue has come up most dramatically in the context of the appropriately nicknamed “Muslim Ban,” but obviously it is highly relevant to many actions in a time such as this in which every branch of government (except maybe the Supreme Court) is dominated by one party, in this case one with a long history of “dog whistling.”

One way of structuring the inquiry is to focus on where  and when the greatest dangers occur from refusing to look beyond the face of an enactment to find illegal intent.

Probably the greatest danger of completely hidden intent occurs when the action is taken by one person or entity.  Had the “Muslim Ban” been enacted through a legislative or even a regulatory process, then the evidence of intent would have come out in the back and forth.  While that evidence might have been rejected in a challenge, because the court would have relied on the supposed facial neutrality of the enactment, none the less the evidence would have been there for all to see.   So Executive Orders are an area of particular risk.

Different kinds of evidence of intent are not only of different probative value, but their being ignored can cause different kinds of harm.  Thus, ignoring statistical evidence of harm means that harmful enactments go into force, but do not necessarily represent a public endorsement of the illegal result.  On the other hand, ignoring the clear evidence of the statements of Trump and his “gang” of their goals, sends a strong public message that those goals are in fact allowed and not forbidden.  That is a terrible message.

Moreover, while the general discussion of this topic has suggested that campaign statements are less worthy of consideration in looking at intent, it may be that the harm in ignoring them is even greater than the harm in ignoring post election statements.  The reason is that ignoring such campaign statements of a winner tells the protected minority and politicians that it is acceptable to use discriminatory appeals to win elections is OK — and that those promises can be kept.  Is there anything worse in the entwining of race with elections and government?

So my general conclusion would be that clear evidence of illegal intent should always be relevant, but that the weight of the evidence should depend on a) the nexus between the person making the statement and their role in the enactment, and b)the extent to which the statement of intent increases the harm of legitimizing the illegality of the action.






Why “Americans by Birth” Are Threatened by “Americans by Choice” and How to Fix That

Its clear that many “Americans by Birth” are deeply threatened by “Americans by Choice,” also known as “immigrants.”   But, why?

Traditional explanations cite job fears, cultural threat, fear of the unknown, not to mention simple racism.  All surely play their role.

But let me suggest that some of the reaction is explained by the fear insight buried inside “Americans by Birth,” that they have actually shown less committement to this country that “Americans by Choice,” most of whom have displayed determination, ambition, risk-taking, and sometimes extraordinary courage to get here.  (I certainly exclude my own privileged path here from this description.)

I wonder if “Americans by Choice,” particularly those already public about their status, should explicitly make the point that: “We Americans by Choice thank you, Americans by Birth, for building this into the country we want so much to stay in and help continue to build.”

That is a hard message to reject, and while perhaps implicit in the desire to stay, not necessarily yet heard by those in fear.

What Emma Lazarus Would Write Today

Christine Webb is a British poet of great accomplishment and also a close multi-generational family friend.

I feel honored that we are able to share this magnificent poem that Christine has written in response to recent actions taken in the name of the United States.  It is an almost unbearable reminder of the contrast between what our country used to be seen as, and what we are now doing.

We can only hope that the millions around the world who have been inspired by the best in us, even as they always saw our defects, will remember that this is in no way a majority Presidency, and that what is done in our name is not what the majority of us tried to choose.

webbI am certain that Emma Lazarus would have welcomed these words, even as she cried with us. (Statue of Liberty plaque poem here.)


For White Voters, It Was Education, Stupid

Nate Silver focuses on education’s impact on the result of the election, and on polling error.

The first conclusion: Education was almost everything in explaining the results of the race. Donald Trump substantially improved on Mitt Romney’s performance among voters without college degrees — especially white voters without college degrees. Hillary Clinton somewhat improved on President Obama’s performance with college-educated voters. The link between education levels and the shift in the vote is robust, even when controlling for other factors, such as income levels.

As the bottom of those links says:

First, it’s clear from the exit polls that for white voters, every bit of extra education meant less support for Trump. That is, it wasn’t just a matter of attending college or getting a degree. While much has been made of the college and non-college divide (which is stark), Trump actually won whites who earned only a bachelor’s degree by a fairly wide margin. Just as big a gap was between the votes of those who graduated from college and those who went to graduate school. The latter group supported Clinton in much larger numbers.

And, with respect to polling, going back to the top linked and quoted post:

In the 10 states with the largest share of white voters without college degrees, Trump beat his polling average by an average of 8 percentage points — a major polling miss. But in the 10 states with the lowest share of white voters without college degrees, Clinton beat her polls by an average of 3 points (or 4 points if you count the District of Columbia as a state). Overall, the correlation between the share of white non-college voters in a state and the amount by which Trump overperformed (or underperformed) his polls is quite high.

Following a complex regression, Nate concluded:

The share of non-college white voters was still a highly statistically significant predictor of the polling error, although Romney’s performance in 2012 was too.

Nate concludes that to reduce the reduce the error caused by likely under sampling of less educated voters:

But most pollsters apply demographic weighting by race, age and gender to try to compensate for this problem. It’s less common (although by no means unheard of) to weight by education, however. As education levels increasingly cleave voters from one another, more pollsters may need to consider weighting their samples accordingly.

I am unable to resist the point that if it turned out that more educated non-white voters voted more like white voters in general, surely some commentators would be advocating for limiting the franchise for non-whites to those with with more education.

Focusing Research To Support an “Appropriate Unrigging” Agenda By Getting Beyond Symptoms

If I am right that our change strategy has to be based on understanding how Trump voters and potential Trump voters think about the term “rigging,” then we need to be doing research that shows how and why the system is rigged, and for whom.

My own personal feeling that much of the problem is that research, after currently being mediated through the media, ends up reporting on symptoms, but not on causes and dynamics.  For example, the recent numbers on suicide, health and life expectancy in declining counties did get widely reported, but I bet they made it through as just that, leaving the impacted population to fill in their own “low information” explanations, that probably focused on external threats, (drugs and foreign competition), rather than lack of opportunity caused by American corporate decisions, lack of health care caused by Republican de-funding, etc. (That hypothesis in itself would make a fascinating research project)

While we can not reshape the media, at least in the shot term, I fear, we can start to do research that focuses not so much on the symptoms, but on government and corporate behavior, with symptoms as only the afterthought, and with analysis of the mechanisms of the impact that causes those symptoms.

We should be conducting focus groups and testing messages that are specifically not about getting short term support for specific changes, but getting insight into people’s understanding of underlying dynamics and finding what would disrupt or replace those understandings.

For example, this paper from the FTC on big data raises many questions about the possible discriminatory and exclusionary impacts of big data.  I would suggest that these impacts might include pricing policies that have discriminatory impact on the declining county areas, others that make it harder for people from those areas to apply for jobs, or even get health care assistance online.

So the research needs to be about the direct line from the corporate behavior, in this case the use of big data, to the impacts that the population of those areas feel.

An economist would say these big data techniques help make markets even more perfect.  Others might experience them differently.  The point is for research to provide the information and does not allow victims to be set against each other.


Trump’s Voters and Putin’s Voters Are Similar in Many Ways – Strategic Implications

At the risk of overgeneralizing, subject to more careful analysis, and feeling badly for maybe stereotyping:

Trump and Putin voters are blue collar, in declining industries, with little hope of long term improvement.

Trump and Putin voters are racial majorities and think they should stay that way.

Trump and Putin voters expect the state to take care of them — although they say the opposite.

Trump and Putin voters often rely for a sense of self on the superiority of their country and religion.

Trump and Putin voters are suffering declining life expectancy, with significantly increasing suicide, drug above, overdose, and medical problems.

Trump and Putin voters tend to project the causes of their problems onto outsiders, those that they see as vulnerable.

Trump and Putin voters seem unable to vote their economic interests, or at least their long term ones.

It is the last one that raises the question whether a long term Democratic strategy of trying to get back the Midwest makes any sense.  The answer is that such a strategy only makes sense if enough of this population can go from seeing that the system is rigged to understanding who is rigging it and in what interest.

A Formula for Understanding What Are the Lines That Even Trump Cannot Cross

I think I may have figured out the formula for identifying what Trump cannot get away with.

We know that he can insult people of color, be racist, misogunist, criticize military heroes, ally himself with dictators, and, frighteningly, that he seems to get away with it.  This is mainly because the party he has taken over is unable to do or say anything significant in response without threatening to tear the party apart.

However, as the New York Times points out, the two outrageous statements that seem to have broken through, again mainly because his party can not, consistent with its self-image, allow them to pass, are the attack on Judge Curiel, and the one on the Khan family.

What’s different?  Both these cases involve an attack on someone who would be off limits to anyone other than Trump, a Federal judge and a military hero.  That’s not unusual.  Think John McCain or Justice Ginsburg.

What makes these attacks unacceptable to Republican leaders and followers is that they are combined with explicit racism — in one case the so called “Mexican” judge, and the other the so called “Muslim” family, to which direct attention is drawn in both cases.  Again, there’s plenty of explicit racism that Trump gets away with — and plenty of implicit racism that the party gets away with, and has gotten away with since Nixon..

Why is this different?  Why is this unacceptable?

Because the only way Republicans can get away with their systemic and implicit racism is by saying, and believing, that people like the ones Trump is now attacking prove that they, their party, and indeed the country, are not racist.  Look at how we allow minorities to achieve in America.

Its a terrible thing to attack your own fig leaves  Its really very tender underneath.