Center for Equal Opportunity

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Hyperpartisanship Is Hurting the Country

Hyperpartisanship is destroying American politics. The announcement this week that Democrats will filibuster Supreme Court nominee Judge Neil Gorsuch -- who is eminently qualified -- puts them on a dangerous collision course that jeopardizes the confirmation process itself. Similarly, Republicans' willingness to pass a major overhaul of the health care system without a single Democrat vote follows in the disgraceful path set when President Obama shoved the Affordable Care Act down the country's throat without a single Republican vote. As of this writing, it is unclear whether there are even enough Republican votes in the House to pass health reform, despite their 44-seat majority, but the point remains: In an already polarized country, partisans on both sides of the aisle are doing more harm than good.

The same applies to Congress's oversight responsibility. The week began with testimony before the House Permanent Select Committee on Intelligence by FBI Director James Comey and National Security Agency Director Adm. Michael Rogers. The testimony was the first open hearing on the government's investigation into meddling by the Russians in last year's election. But instead of focusing on something Republicans and Democrats -- indeed, all Americans -- should be deeply concerned with, the hearings turned into a referendum on whether President Trump was truthful when he tweeted almost three weeks ago that former President Obama was secretly spying on him just before the election.

Republicans spent much of their precious time in the hearings making the case that Russia's involvement in the election was not nearly as important as who leaked information regarding that involvement. The chief objects of Republican wrath were suspected Obama appointees. Republicans seemed especially exercised about individuals whose leaks revealed disgraced former Trump national security adviser Michael Flynn's contacts with the Russian ambassador to the U.S. I, for one, will shed no crocodile tears over Flynn's firing. The man lied to the vice president and, it turns out, was also a paid foreign agent of the Islamist government of Turkey's President Recyip Erdogan at the same time he was serving as candidate Trump's top security adviser.

Democrats' behavior was little better during the hearings. Their main focus was on whether President Trump lied in his ridiculous early-morning tweets accusing President Obama of spying on him. The tweets were fact-free; no one, including the president, has produced evidence otherwise. But Democrats -- and the country -- would be better off focusing on Russian meddling, not refuting baseless claims. Exactly how do you prove something didn't happen anyway? The outcome of the hearing was simply a hardening of views among partisans. We are no closer to understanding how extensive the Russians' involvement was, what exactly it consisted of and how they managed to carry it out, including who might have assisted them wittingly or unwittingly.

There are large differences in philosophy and policy between Democrats and Republicans. Those differences are important, and national elections reflect voters' preferences. But barring a major landslide, which the last election certainly was not, enacting laws requires negotiations and, yes, compromise. The pendulum rarely shifts dramatically in a single election. And prudence suggests that's a good thing. From 1960 to 1980, the country shifted mostly left, with the exception of the Nixon years, which were a mixed bag. President Nixon gave the country racial quotas, the Environmental Protection Agency, and wage and price controls -- hardly a far-right agenda. From 1980 to 2012, the country moved to the center-right, including during the Clinton years. Congress passed, and President Clinton signed, both welfare reform and the Religious Freedom Restoration Act during his tenure.

But things shifted dramatically during the Obama years. It wasn't just that policy veered sharply left but that Democrats and Republicans in Congress quit seeking compromise on highly divisive issues. Even when a few Democrat and Republican senators tried to forge bipartisan legislation on contentious issues like immigration, the hyperpartisans in their respective parties sunk the bills.

What began under Obama has now metastasized under Trump. If this keeps up, we can look to four years of stalemate or, perhaps worse, legislation so out of step with a mostly centrist country that it will be rebuked by whoever succeeds Trump in office. Neither party benefits long term in that scenario. Worse, Americans lose -- big league, as the president likes to say.

No Free Lunch in the Health Care System

The health care reform bill that has now passed two committee hurdles in the House still faces an uphill battle to become law. Many tea party Republicans have already said they won't vote for a bill they call Obamacare Lite, and it is likely that very few, if any, Democrats will cross over to support the GOP bill on the floor. But President Donald Trump says he will do what it takes to get the legislation passed, though it is unclear exactly what that means. The biggest problem, however, is not Republicans breaking ranks but the fact that despite Obamacare's many flaws, Americans now feel entitled to guaranteed health insurance but don't necessarily want to pay for it. Something has to give.

Anyone who believed that we could expand health care coverage to more people, insist that those with pre-existing conditions be covered, mandate that more procedures be paid for by insurance and impose one-size-fits-all policies for the young and healthy and for the elderly and sick and not see premiums explode doesn't understand basic economics. Insurance, by its nature, is about shared risk. When a driver goes to buy auto insurance, his driving record, age, sex, type of vehicle and location are all factors in determining his premium. A 16-year-old boy with a new BMW living in New York City is going to pay higher premiums than a 40-year-old woman living in Sioux City who drives a Volvo and has never had a speeding ticket. What's more, the premiums also depend on what kind of coverage you want. Do you want to be covered for damage to the vehicle or just liability in case you or someone else gets hurt in an accident? And what deductibles are you willing to absorb? No auto insurance policy I know of offers maintenance as part of the package, either; you pay out of pocket for oil changes, brakes, tires, tuneups, etc. The same theories apply to homeowners insurance. You pick how much coverage you want and what deductibles you are willing to pay, and your premiums are based on these factors, as well as where you happen to live.

But Americans have gotten used to the idea that health insurance should operate differently than all other forms of pooled-risk insurance. Going back to World War II, when unions successfully sold the idea that employers should pay for health insurance to circumvent wage-price controls in effect during the war, which limited their ability to bargain for higher wages, most Americans started receiving insurance through their employers. They also got this benefit tax-free. This third-party payment disrupted the feedback loop that is necessary for markets to operate efficiently. We haven't had a free market system in health care ever since -- and Obamacare made it much worse.

Some of what the House Republicans' plan attempts to do is to restore at least some free market opportunities to the system. If the plan were to be successful, over time, this might have some effect on driving down the price of health care. By giving people a choice about what kind of insurance they wish to buy -- including catastrophic plans for the young and healthy, which make the most sense for this cohort -- and including stiff penalties for purchasing insurance if an individual has allowed previous coverage to lapse, the House bill reintroduces some market discipline.

The House bill is by no means perfect, but it is at least a beginning. Would some people end up paying more for their insurance under this plan? Yes, but the choice would be theirs. Others could find cheaper plans that better suit their needs; they want to be covered if they get cancer or some other life-threatening disease or have an accident but are willing to pay out of pocket for routine visits for a common cold. And it is only fair that older Americans -- who consume far costlier treatments -- pay more for their premiums, as should smokers, heavy drinkers and overweight people.

The working poor and those below the poverty line will need subsidies. But the GOP plan would provide those, in the form of tax credits for the former and Medicaid for the latter. The challenge for the president and the GOP leaders in Congress will be to explain to Americans -- many of whom have become increasingly insistent on benefits but don't want to pay for them -- that there are no free lunches, not even in health care.

Put Aside Petty Grievances, Mr. President

At no point in my life have I ever felt as alienated from politics as I do now. Three weeks into the Trump administration, I find much to agree with -- proposed tax cuts, deregulation, good Cabinet choices -- but even more that makes me uncomfortable, indeed fearful. Despite the apocalyptic rhetoric of the election, the United States is in relatively good shape. We have an economy that is growing, albeit sluggishly; a crime rate that is historically low, though it has ticked up over the past year or so; the strongest military in the world and perhaps the most experienced, if overtasked, service members in our history; and the most educated population we've ever had.

With one party in control of the executive and legislative branches of government, the nation is poised to make progress on several vexing problems, including reforming health care and improving our immigration system. But much of my optimism that it is possible to get important things done is tempered by a White House that seems more interested in settling scores than in moving forward to improve the lives of all who live here.

In a span of a few days, President Donald Trump nominated a Supreme Court justice of stellar caliber, U.S. Circuit Judge Neil Gorsuch, and then undid the goodwill generated by his action by launching a broadside against the American judicial system. When a judge in Seattle issued a temporary restraining order against the president's temporary ban on people entering the U.S. from seven majority-Muslim countries, Trump referred to the judge as a "so-called judge" and then set the stage to blame the judge for future terror attacks. "If something happens blame him and court system. People pouring in. Bad!" Trump tweeted.

Trump's tirades didn't stop there but continued next against the 9th U.S. Circuit Court of Appeals, which heard a government request to stay the lower court order. Demeaning both his own Justice Department lawyers and the plaintiffs' attorneys, he described the arguments before the appellate court as "disgraceful." He told a group of sheriffs and police chiefs: "I think it's sad. I think it's a sad day. I think our security is at risk today." The appellate court issued a ruling Thursday, upholding the lower court's restraining order, a defeat for the government and Trump.

It is impossible to brush aside Trump's impulsive behavior. It undermines the very agenda that he hopes to accomplish. The fight to confirm Gorsuch was never going to be easy. Democrats are still smarting from the refusal of the GOP-controlled Senate to give Merrick Garland, President Barack Obama's Supreme Court nominee, a hearing to fill the seat of deceased Justice Antonin Scalia. The Senate is closely divided in partisan terms, with 52 Republicans, 46 Democrats and two independents who caucus with the Democrats. That means that to avoid a filibuster, either some Democrats must support Gorsuch or Republicans must suspend Senate rules to allow a simple majority vote for confirmation. Trump has urged the Republicans to do the latter -- to exercise the "nuclear option," as it is often referred to -- but that would do lasting damage to the process going forward, further polarizing an already deeply divided body.

One wonders why there is no one in President Trump's circle who can stand up to him and say, "Your behavior is threatening your legacy and the stability of our system." I will give the president the benefit of the doubt that he wants to make things better for Americans. But he can't do so with threats and bullying. Insulting those who disagree with him won't persuade them. Ignoring administrative procedures and the traditional vetting process won't improve the quality of his directives. Watching cable TV for hours, as he has admitted to doing, won't inform him about complicated issues, nor will excluding from national security meetings some of the very people on whom he should be relying for advice. Surrounding himself with yes men and yes women who tell him what he wants to hear will eventually undo him. He needs open, honest debate from people who actually understand policy and government to present him with the best options. Getting things done quickly isn't so important as getting them done well and properly.

I want the Trump administration to succeed. But I fear that the president is laying the groundwork for his own destruction. It's not too late to get on track, but if things don't change soon, it will be. And only Donald Trump can save himself -- by putting aside petty grievances.

Trump Moves Mexico Left

The United States has benefited for more than 160 years from having a friendly neighbor to its south, Mexico. But that may be about to change. This week, Secretary of State Rex Tillerson and Secretary of Homeland Security John Kelly visited Mexico to begin talks on renegotiating the North American Free Trade Agreement and on President Donald Trump's aggressive new immigration enforcement orders. But Mexico is in no mood to play nice.

Mexico is still smarting from candidate Trump's canards about Mexican immigrants, accusing Mexico of "not sending their best. ... They're bringing drugs. They're bringing crime. They're rapists." It has only gotten worse since President Trump took office. He continues to claim that Mexico will pay for the wall he intends to build on the border -- which estimates now predict will cost more than $20 billion. And the plan to step up deportations of undocumented immigrants falls most heavily on Mexicans, who account for about half of the undocumented population in the U.S., some 5.5 million people. But perhaps the biggest insult of all is the administration's plan to dump non-Mexican deportees across the border in Mexico.

For nearly a decade now, the majority of those crossing illegally into the United States on our southern border are not Mexicans but Guatemalans, Hondurans, Salvadorans and others for whom Mexico is simply their transit point. Mexico is under no obligation to accept these non-Mexican deportees from the U.S. any more than Canada would be. And the Mexican president and foreign minister have made abundantly clear that Mexico, no less than the United States, is a sovereign country. But the administration hopes to bully Mexico into acceding to its demands by withholding aid and restricting trade.

A new immigration order signed by Kelly this week directed his undersecretary for management to "identify all sources of direct or indirect federal aid and assistance, excluding intelligence activities, from every departmental component to the Government of Mexico on an annual basis, for the last five fiscal years, and quantify such aid or assistance." The unambiguous threat is that if Mexico doesn't play ball, the aid will be jeopardized. But most of the aid to Mexico is given not out of the goodness of American hearts but to further U.S. interests, most notably in law enforcement and narcotics control. Do we really want to weaken Mexico's ability to fight drug cartels? Those cartels exist largely because of the insatiable demands of U.S. customers who consume the opioids, cocaine, methamphetamine and marijuana that come from or through Mexico. And the money and weapons that sustain the cartels come primarily from our side of the border.

Nor, despite President Trump's rhetoric, is trade with Mexico a one-way street. Mexico is our third-largest trading partner. We import more from Mexico than we export to Mexico, but Mexicans still bought $237 billion worth of goods and services from the U.S. in 2015. If the administration were to start to turn the screws on Mexico by imposing tariffs, Mexico would have the ability to do the same to U.S. goods, as well as sell products it now sells to us to other customers in Asia and elsewhere. Who would end up paying? American consumers, farmers and manufacturers, who would either pay more for goods they purchase or have fewer customers for their own products.

Perhaps the most dangerous part of Trump's bellicose rhetoric and actions is that they have revived the anti-American sentiment that once dominated Mexican politics. It took more than a century for most Mexicans to put aside the humiliating defeat of the Mexican-American War in 1848. Mexico lost almost half its territory in that war, which Abraham Lincoln called immoral and Gen. Ulysses S. Grant referred to as "one of the most unjust ever waged by a stronger against a weaker nation."

If the administration isn't careful, Mexico may lurch dramatically left in the next elections. Mexico City Mayor Andres Manuel Lopez Obrador, who has twice run for president of Mexico, leads some recent polls in the race to succeed the term-limited current president, Enrique Pena Nieto, in 2018. A socialist leading Mexico wouldn't be good for Mexicans or for Americans.

If President Trump thinks he has problems with Mexico now, just wait until he sees what his policies bring in the future.

E Pluribus Unum

At last week’s prayer breakfast, President Trump made fun of Arnold Schwarzenegger’s poor ratings as his replacement on Celebrity Apprentice, but he also said this:  “So in the coming days, we will develop a system to help ensure that those admitted into our country fully embrace our values of religious and personal liberty, and that they reject any form of oppression and discrimination.  We want people to come into our nation, but we want people to love us and to love our values — not to hate us and to hate our values.” The President’s remarks about Mr. Schwarzenegger were gratuitous, but he’s right about the importance of all Americans, immigrant and native-born alike, needing to share certain basic values if our country is to work well.

I have no doubt that, between tweets, the President reads my weekly email from the Center for Equal Opportunity, so I thought I would share with him (and you) a column I wrote on this topic in 2000.  I still stand by it, and hope that the President and his administration find it useful as they work on ensuring better assimilation.  (Later on, I fleshed out this article in Congressional testimony I gave here.)Here’s the column:

E Pluribus Unum
America has always been a multiracial and multiethnic country. But saying that it is, or should be, multicultural is very different. The ideal was, and still should be, that you can come to America from any country and become an American — but that means accepting some degree of assimilation. It is not diversity that we celebrate most, but what we hold in common.

The same is also true for native-born Americans. All of us can claim equally to be Americans, but all must acknowledge a shared set of beliefs and mores.

America has always been diverse. But telling an elementary school that it cannot insist on teaching children standard English, or English at all; or telling a college that it cannot focus on Western Civilization; or insisting that an employer accommodate work habits it finds to be unproductive; or condemning social strictures as judgmental — well, all this may celebrate diversity, but it denigrates the common standards that a free society must have if it is to flourish.

Still, it will not do simply to condemn diversity, any more than it will to embrace it indiscriminately. There is much diversity that is valuable or at worst harmless. Workers and students from all backgrounds have contributed enormously to our national life, and who cares what food they like? Some diversity is good, and some bad.

Accordingly, it makes sense to set out some rules essential for a multiracial, multiethnic America and that all Americans should follow — wherever they or their ancestors came from, whatever their skin color, whatever their favorite food or dance. Here are my ten, aimed as much at the native-born as the newly arrived.

1. Don’t disparage anyone else’s race or ethnicity. It may seem odd to begin the list with this one, but actually it’s not. On the list of things we don’t tolerate, intolerance deserves a prominent position. If we are to be one nation, we cannot criticize one another’s skin color and ancestors.

2. Respect women. Just as we do not tolerate a lack of respect based on race or ancestry, we also demand respect regardless of sex. Some subcultures — foreign and domestic — put down women. That is not acceptable. This doesn’t mean that men and women have no differences or that we all must be ardent feminists. But it does mean that women must be treated respectfully, and that where the law requires that they be treated equally — as it frequently does in this country — it be followed.

3. Learn to speak English. This doesn’t mean that you can’t learn other languages, too, or keep up a native language. But you and your children must learn English — standard English — as quickly as you can. And, if you expect to be accepted, you should avoid speaking another language when you are with people who don’t understand it.

4. Don’t be rude. Some people apparently view it as unmanly or uncool to be polite. But that is just adolescent sullenness. Customers, coworkers, fellow students, strangers — all expect to be treated courteously, and rightly so. Not every culture is a stickler for taking turns, queuing up, and following the rules (see next item), but Americans follow the British here.

5. Don’t break the law. If you want to participate in this republic — if you want a say in making the rules and electing those who make them — you have to follow the laws yourself. That means, among other things, that you can’t use illegal drugs, which is just as well since there is no surer way to stay at the bottom of the heap or to find yourself there in a hurry.

6. Don’t have children out of wedlock. Moral issues aside, illegitimacy is a social disaster for women and children alike (especially boys). Here again, it is a sure way to stay poor and raise poor children. Perhaps in some countries it takes a village to raise a child, but in the United States it takes two parents. That said, the pathology of illegitimacy is more widespread among some native-born groups than among some immigrants.

7. Don’t demand anything because of your race, ethnicity, or sex. You have the right not to be discriminated against because of these factors, and it follows that you also cannot demand discrimination in your favor. The sooner you can stop thinking of yourself first as a member of a particular demographic subset, and instead as a human being and an American, the better. This is true for both individuals and groups. The demagogues of identity politics promise nothing worthwhile.

8. Working hard-in school and on the job — and saving money — are not “acting white.” And, for whites, it is not being a nerd or a dweeb. America owes her success to a strong work ethic and to parents instilling that ethic in their children.

9. Don’t hold historical grudges. There is not a single group in the United States that has not been discriminated against at one time or another. But we are all in the same boat now, and we have to live and work together. Your neighbor’s great-great grandfather may have tried to kill or enslave yours, but we are a forward-looking country and so we cannot afford to dwell on the past.

10. Be proud of being an American. You can hardly expect to be liked and accepted by other Americans if you don’t love America. This is not a perfect country, and it does not have a perfect history. And there are lots of other countries that have good qualities. But there is no country better than the United States. If you disagree, then why are you here?

The White House Bubble

Donald Trump is back on the campaign trail. The White House may be in chaos; Congress may be struggling to deliver on a promised rewrite of Obamacare; our NATO allies may be wondering whether they can still count on the U.S. to defend them; the Russians may be so emboldened they've parked a spy ship off Connecticut and sent their warplanes to buzz U.S. destroyers in the Black Sea; but President Trump is heading for a pep rally in Florida this weekend. Will it work? Does it matter?

The biggest temptation in any White House is to lock yourself in a protective bubble. I've been there. I've seen it happen. If you're a senior staffer, as I was in the Reagan White House, you drive through the White House gates shortly after dawn and don't leave until well after sunset, sometimes late at night. You don't go out for meetings. People come to you, mostly those who already support your mission or want favors you're in a position to grant. You eat most of your meals in the West Wing basement mess, where you're treated like royalty. If you must venture out, a chauffeured car drives you.

If you're the president, it's even worse. You don't even go home to sleep in your own bed. The voices you hear all day come from people who largely agree with you and whose job they believe is to protect -- and please -- you. But if you're President Trump, apparently, you spend a lot of time watching cable news. And what you see there is one criticism after another, a view that doesn't jibe with what everyone around you is saying or what you want to believe about your own power, effectiveness and popularity. Is that why President Trump wants to return to the campaign trail? Does he want to be greeted by adoring crowds as he was during the election cycle? If so, he'll be going from one bubble to another, and he still can't escape the turmoil he's wrought in not just Washington but the world.

Watching this White House is surreal. The level of incompetence is unlike any I've witnessed in 40-plus years in politics, and that includes watching the White House during Watergate and the early days of the Carter administration, when a bunch of inexperienced 30-somethings were in charge in the West Wing. The federal courts have slapped down an ill-conceived and poorly drafted Trump executive order on immigration and refugee resettlement. The Republicans in the Senate have forced out a Cabinet nominee. Leaks have revealed extensive contacts between Russian intelligence agents and members of the Trump campaign and transition team and driven the president to push out his own national security adviser. The president himself has insulted allies, including the president of Mexico and the prime minister of Australia, and, after North Korea launched an intermediate-range missile, stood next to the prime minister of Japan at a hastily called news conference like a bit player in t!
he unfolding drama.

When the president speaks, it is clear to anyone who knows policy that his depth of knowledge is a millimeter thin. When he should be talking about issues, he reverts to talking up his election victory -- which he incessantly misstates as the biggest since Ronald Reagan's second one. Whether it's his Electoral College margin, his inaugural crowds or his hands, the president is obsessed with size. Everything about Donald Trump must be bigger, better, smarter, stronger than anything that has come before him, regardless of the facts. Any reporting to the contrary is "fake news."

President Trump will celebrate the culmination of his first month in office in a few days. In normal times, this would have been his honeymoon -- but he's turned it into a messy separation from his allies in Congress, our friends around the world and much of the American public, not to mention a divorce from the truth. The answer isn't to succumb to the siren song of his adoring crowds; it's to break out of the bubble and face the mistakes he and his team have made -- and fix them.

Continuing in Obama's Path

For eight years, conservatives -- rightly, in my view -- railed against the imperial presidency of Barack Obama. When he couldn't get what he wanted through the ordered and deliberative legislative process, he used other means, issuing regulations and executive orders that accomplished his goals without having to convince the people's elected representatives of their wisdom. Even Obama's signature legislative accomplishment, the Affordable Care Act, became law without a single Republican vote.

The deep polarization that resulted from President Obama's ham-fisted approach helped lay the groundwork for the election of Donald Trump. But in his first two weeks in office, President Trump has shown no signs of throwing off the imperial mantle of his predecessor. Instead, he's ignoring even members of his own Cabinet, not to mention Congress, to draft orders and directives that will dramatically alter not just policy but, in the case of proposed immigration changes, the very composition of the American population. In doing so, he jeopardizes one of the most important features of American democracy, stability.

The transfer of power between administrations of differing political parties always signals change, but the scope and tempo of change have traditionally been moderated by procedural safeguards. Presidents appoint Cabinet and sub-Cabinet officials but must secure the advice and consent of the Senate in doing so. The leadership of departments and agencies changes at the top, but the work is carried out by career staff members who remain from one administration to another. An administration may want to abandon existing programs and start new ones, but it must go to Congress for the authority and appropriations to do so.

When voters elect a new president, they may well be voting for change, but that change doesn't happen overnight, nor should it. No matter how frustrating it might seem to have to wait and go through the slow process of working through Congress -- and sometimes having to make compromises -- that process protects us. We don't lurch from one extreme to another. Rather, we work through our differences. The Obama administration ignored this example to its detriment and ushered in an era of confrontation that saw the Congress change political hands in large part to exercise a check on executive power.

In his first two weeks in office, President Trump has seemed intent on ignoring the lessons of the Obama overreach, choosing instead to follow Obama's example. Trump is rewriting foreign policy, insulting allies in the process. As The Wall Street Journal noted in an editorial this week, Trump is treating Mexico as Obama treated Israel. A putative transcript of Trump's telephone conversation with Mexican President Enrique Pena Nieto this week quotes Trump talking about "bad hombres" and threatening to send in the U.S. military to deal with them because Mexico's military is weak. The Mexican president's office, unsurprisingly, has denied that Trump made the threat, which would precipitate a crisis in Mexico if proved true, but the White House has remained uncharacteristically mum. No one, however, is denying that Trump insulted Australian Prime Minister Malcolm Turnbull in his abbreviated -- one might call it Trumpcated -- call with the leader of one of the United States' most stalwart allies. Before that, there was Trump's decision to issue an executive order -- one that temporarily bars immigrants from seven majority-Muslim nations and indefinitely bans the entry of Syrian refugees -- on the very day he met with British Prime Minister Theresa May without giving her the diplomatic courtesy of a heads-up.

Those decisions will make everything that follows more difficult. There is no question that immigration policy requires an overhaul, but the way to do it is not by issuing ill-conceived and highly divisive orders from the Oval Office. Leaks of more orders to come suggest that President Trump will begin to shut the door for high-skilled immigrants, roll back legal immigration and deport millions of unauthorized and even legal immigrants whom this administration finds undesirable. Such drastic measures require debate and deliberation -- and none of it is occurring in the echo chambers of Trump's White House.

If the president keeps on this track, he should not be surprised that he will meet fierce resistance. Right now, that resistance is manifesting itself in the streets and among Democrats in Congress. But if Trump continues to try to bully his way to policy changes, eventually members of his own party will begin to apply the brakes. And if they don't, the American people will do so in the next election.

CEO to Cities: Don’t Do It!

The Center for Equal Opportunity has been particularly active in recent months with its ongoing project of warning state and local governments (especially cities and counties) not to start down the road of awarding government contracts with an eye on race, ethnicity, and sex.  Here’s the sort of memorandum (citations and links omitted) we send to the relevant officials, most recently in Georgia, North Carolina, Florida, and Virginia:

We are writing with regard to a recent news story, which was brought to our attention this week and which discusses the City’s minority contracting efforts.

We urge the City to be race-neutral in this program.  We also urge the City to continue to resist calls that it “initiate a disparity study.”  Not only will such a study be very expensive, but the only reason to undertake it would be to try to justify legally something that the City should not want to do, and indeed it would probably not offer a sufficient legal justification anyway.   What’s more, disparity studies are frequently revealed to be defective, and even fraudulent.   When this happens, the city’s (and taxpayers’) money has been wasted, and of course then the study is of no legal or policy use either. 

To elaborate:  The City can undertake race-neutral measures to ensure that the bidding process is fair and open without a disparity study.   It can, that is, make sure contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex.   A disparity study is needed, supposedly, if the City wants to have a legal justification for non-neutral measures. 

But the City should not want to engage in such preferential treatment on the basis of race, ethnicity, and sex, even if it had a legal justification for it, since such discrimination is unfair and divisive; it breeds corruption; and it costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder.  What’s more, it is very doubtful that, in 2017, a disparity study would justify preferential policies, since there will always be nonpreferential ways to remedy any disparities that are found. 

The attached document [a redacted version of a memorandum we sent to another city in nearby state that was considering this issue] contains additional discussion of, especially, the relevant legal points.  See also this model brief our organization has prepared and posted for those wishing to challenge preferential contracting programs.

Thank you very much for your attention to our concerns.

We’re happy to say that we’ve met with significant success in firing such warning shots.

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“Trumplash”? — Suppose someone had told you that the United States would have a president who, in the same week, would nominate the stellar conservative Neil Gorsuch to the Supreme Court and say that there's moral equivalence between our country and state killers like Vladimir Putin.  I fear we’re going to have to get used to this discombobulation.   Call it “Trumplash” (Trump + whiplash).

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Speaking Truth to Power — The Left loves the phrase “speaking truth to power” and claims it every time some disgruntled professor writes a letter to the editor criticizing, well, anyone. So of course the acting attorney general, Sally Yates, was celebrated when she refused to defend a presidential executive order she didn’t like and as a result was then fired by President Trump.

Of course, her refusal was completely costless — indeed, it was a great career move. She had only a day or two left at her job anyway, and her early exit ensured that she would be forever loved by everyone who would ever be in a position to help her in the future.

A really brave person would be willing to criticize the president when he could actually withhold something from you that you wanted. For most lawyers, and nearly all judges, that something would be an appointment to the Supreme Court. Does anyone think it beyond the pale that President Trump might change his mind about a Supreme Court nominee who did something to displease him?

Disgruntled professors and Sally Yates cannot hold a candle to Neil Gorsuch.

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The Amazing Justice Sotomayor — Speaking of Supreme Court justices, Sonia Sotomayor recently spoke at the University of Michigan, and was asked by a moderator “what a university will need to look like in the years ahead to be inclusive and innovative.”  "It's going to look a lot like Michigan," she said to applause, "but with even greater diversity." 

That’s amazing.  The Center for Equal Opportunity fights for the principle of racial and ethnic nondiscrimination in university admissions:  Admit the best qualified, without regard to skin color or what country someone’s ancestors came from.  And we frequently hear the bogus and opposing claim that public universities should “look like the state” — that is, that there should be some sort of quota to ensure that the percentage of each racial and ethnic group in the school approximate the percentage of that group in the state’s general population.  There’s no plausible legal, moral, or policy justification for such a quota, but we’ve gotten used to hearing it.  Yet here is Justice Sotomayor doubling down:  Apparently she thinks that some groups, presumably racial and ethnic minorities, should be overrepresented at public universities.  As I said:  amazing. 

But wait, there’s more:  "When you look at the number of African-Americans at the University of Michigan — um, there's a real problem," she said. "And why is diversity important? ... For me, the answer is quite simple: It's because until we reach that equality in education, we can't reach equality in the larger society. It starts here and it ends here." 

What is she talking about?  She seems to be saying that, only by having quotas in higher education, can we magically end racial disparities everywhere in society.  Sorry, Justice Sotomayor, but it doesn’t work that way.  In fact, you have it backwards:  The reason that some groups don’t do as well, statistically, in competitive admissions is because some groups are held back, disproportionately, by cultural failures that begin long before college age.  I’m talking, in particular, about out-of-wedlock birthrates and the belief that academic excellence is “acting white.”

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Recommended Reading — Finally, let me put in a plug for a new book by Stuart Taylor, Jr. (a frequent CEO ally in our opposition to racial preferences in university admissions) and Professor KC Johnson, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.  The book was recently discussed by the authors on this Federalist Society podcast (I make an appearance at the 48:10–50:35 mark).

The Racial Poison of “White Privilege”

I had occasion recently to post on National Review Online this short summary of why the accusation of “white privilege” is poisonous:

It is, for starters, a divisive phrase, much more likely to hurt race relations than help them, as it lumps together all white people — many of whom cannot be considered “privileged” by any reasonable standard — and points an accusatory finger at them, asserting, “You don’t deserve what you have.” It is, at bottom, just another way of complaining about stereotyping, even though all racial groups — indeed, all groups, period — face stereotyping, some negative and some positive, and there’s nothing new or remarkable about it. It overstates the extent to which stereotyping occurs and the consequences it has. And, finally, playing this particular race card suggests that racial disparities — and, indeed, racial stereotyping — are due solely to racism simpliciter, and have nothing to do with culture and, in particular, cultural dysfunctions. It is, in other words, the “conversation on race” that we have come to expect from the left: All whites must accept blame for all disparities of any kind, and any suggestion that some non-whites have failed to act responsibly is blaming the victim.

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Another Bad “Disparate Impact” Lawsuit – The Ninth Circuit last month heard oral argument in a case challenging the NCAA’s policy of barring all convicted felons from coaching in NCAA-certified tournaments held for recruiting student-athletes to NCAA Division I schools. The policy is said to have a “disparate impact” on African Americans, and this is supposed to violate Title II of the 1964 Civil Rights Act, which bans “discrimination or segregation on the ground of race, color, religion, or national origin” in “places of public accommodation.”

Sigh. Putting aside why the NCAA having this rule is “public accommodations” discrimination covered by Title II in the first place, it would be absurd to construe this statute to allow “disparate impact” causes of action. Consider a hotel resort, which clearly would be covered: Are its rates, location (are a city’s hotel-zoning decisions to be challengeable, too, by the way, if they have a “disparate impact”?), menus, music, dancing, décor, and on and on to be challengeable because in some way one or the other is less accommodating, statistically speaking, to this group or that group on the basis of race, color, ethnicity, and religion? The disparate-impact approach is exceptionally unwieldy even in the areas where it has already been applied, as I discuss here (noting, among other things, that the Supreme Court’s most recent pronouncement in this area, while disappointing, was at least unanimous in recognizing the dangers with the disparate-impact approach), and there is no reason to make matters worse.

It’s telling that even the Obama administration, which was always very aggressive in using the disparate-impact approach, decided to sit this case out. No federal regulation interpreting Title II as including disparate-impact discrimination is cited by plaintiffs. Fun fact: The district judge in this case, who ruled correctly that Title II does not allow disparate-impact lawsuits, was Gonzalo Curiel — the Obama appointee you may remember as the Latino jurist that President Trump complained about being biased against him.

Finally, bear in mind that the disparate-impact approach requires race-based decision-making rather than prohibiting it. That is, it means that a decision-maker must be conscious of getting its racial, ethnic, and religion numbers right in order to avoid liability, rather than simply making decisions without regard to these things, which of course is what the civil-rights laws are supposed to be all about. Thus, the approach raises constitutional problems, as the late Justice Scalia noted. Accordingly, the Center for Equal Opportunity joined and helped write an amicus brief filed with the Ninth Circuit, urging the court to adopt the principle of limiting the interpretation of civil-rights statutes to banning actual discrimination (disparate treatment) unless there is clear language in the statute to the contrary (which is conspicuously lacking here: A policy that is, as conceded in this case, neutral by its terms, in its intent, and in its application is not “discrimination or segregation [i.e., no “separate but equal” defense] on the ground of race” etc.).

Here’s hoping the Ninth Circuit agrees and puts paid to the notion that Title II can be used in this absurd way.

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No More “Alternative Facts” – I’m delighted with the news media’s discovery and embrace of objective truth and its rejection of the notion that all narratives are equal.  I look forward to them giving short shrift in the future to any continued claims that, for example, Michael Brown and Trayvon Martin were murdered because of their skin color.

Relatedly:  I’m under no illusions about the new administration’s frequent willingness to shoot first and aim later, if at all, but I was nonetheless irritated by much of the news media’s coverage over the weekend that suggested the reason seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) are being singled out for immigration restrictions is because they are “majority Muslim.”  If it was the aim of the administration to target such countries, it’s doing a poor job, since — according to this university link, for example — there are many, many more majority-Muslim countries not on the list.  In fact, I counted 51 majority-Muslim countries in all, meaning that the administration managed to miss 44 of them.  So it seems more plausible that, whatever you think of it otherwise, the administration’s policy really is at least aimed at countries with significant terrorist enclaves and deficient screening mechanisms, not lots of Muslims.  Whether it is well-crafted, tactically wise, and properly rolled out is, of course, another question.