Brickbat: A Real Caste System


Police in Uttar Pradesh, India, have charged four people, including a Korean Christian and three Indian citizens, with blasphemy and violating a law banning people from attempting to convert others. The four say they were merely delivering food aid to the poor. But police say a woman told them they told her she could get free food by coming to church and was offered money to convert to Christianity. The man organizing the food effort says the charges are trumped up and that two of the Indians who were arrested aren’t even Christian but just helping to deliver the aid.

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An Abject Apology Highlights the Legal Exposure for Promoters of Trump’s Election Fraud Fantasies


American Thinker has unreservedly apologized to Dominion Voting Systems for publishing “completely false” statements about the company’s involvement in an imaginary anti-Trump plot that supposedly delivered a phony victory to President-elect Joe Biden. The conservative website, one of several right-wing outlets that promoted the wacky conspiracy theory, was responding to a letter in which Dominion demanded a retraction and threatened to sue for defamation if one was not forthcoming.

American Thinker and contributors Andrea Widburg, R.D. Wedge, Brian Tomlinson, and Peggy Ryan have published pieces…that falsely accuse [Dominion] of conspiring to steal the November 2020 election from Donald Trump,” says a statement that Thomas Lifson, the website’s editor and publisher, posted on Friday. It continues:

These pieces rely on discredited sources who have peddled debunked theories about Dominion’s supposed ties to Venezuela, fraud on Dominion’s machines that resulted in massive vote switching or weighted votes, and other claims falsely stating that there is credible evidence that Dominion acted fraudulently.

These statements are completely false and have no basis in fact. Industry experts and public officials alike have confirmed that Dominion conducted itself appropriately and that there is simply no evidence to support these claims.

It was wrong for us to publish these false statements. We apologize to Dominion for all of the harm this caused them and their employees. We also apologize to our readers for abandoning 9 journalistic principles and misrepresenting Dominion’s track record and its limited role in tabulating votes for the November 2020 election. We regret this grave error.

Lifson notes that “we received a lengthy letter from Dominion’s defamation lawyers explaining why they believe that their client has been the victim of defamatory statements.” Former Trump campaign lawyer Sidney Powell, a conspicuous promoter of the “completely false” story about fraud-facilitating software that supposedly changed Trump votes to Biden votes, received a similar letter from Dominion on December 16. Four days later, Powell tweeted that she was “retracting nothing,” because “we have #evidence” that the people running the company are “#fraud masters.” On January 8, Dominion sued Powell for defamation in the U.S. District Court for the District of Columbia, seeking $1.3 billion in compensatory and punitive damages.

Powell also has been sued by Dominion executive Eric Coomer, who figures prominently in her conspiracy theory, which alleges that he participated in “an antifa conference call” in late September or early October, during which he supposedly bragged that “Trump is not gonna win” because “I made fucking sure of that.” The defendants in Coomer’s lawsuit, which he filed in Denver County District Court on December 22, also include conservative activist Joseph Oltmann (who claimed to have “infiltrated” that alleged conference call), Trump attorney Rudy Giuliani, Conservative Daily, The Gateway Pundit, Newsmax, One America News Network, OANN White House correspondent Chanel Rion, Gateway Pundit owner Jim Hoft, blogger Michelle Malkin, and radio host Eric Metaxas.

The most prominent promoter of conspiracy theories involving Dominion, of course, is President Donald Trump, whom the company has not yet sued for defamation. In the 1982 case Nixon v. Fitzgerald, the Supreme Court ruled that presidents have “absolute immunity” from civil (but not criminal) liability based on their “official acts.” Trump’s liability for damage to Dominion’s reputation therefore would seem to hinge on whether his wild claims about Dominion count as “official acts.”

In 2019, Elle magazine columnist E. Jean Carroll, who has publicly accused Trump of raping her in the mid-1990s, sued him for defamation because he falsely denied knowing her and implied that she had invented the incident. A federal judge in Manhattan last year ruled that Trump’s statements about Carroll, which he made while he was president, “were not within the scope of his employment,” which implies that he is not entitled to immunity from her lawsuit under Nixon or the Federal Tort Claims Act. The Justice Department recently asked the U.S. Court of Appeals for the 2nd Circuit to reverse that decision.

Pro-Trump attorneys like Powell, Giuliani, and Lin Wood are shielded from liability for defamation based on statements they have made in court on behalf of their clients. But “the litigation privilege doesn’t cover all out-of-court statements,” says UCLA law professor Eugene Volokh, a First Amendment specialist, although “in many states the fair report privilege does cover lawyers’ public discussion of claims made in their lawsuits.” The extent of that privilege varies from state to state, Volokh says, and it is not yet clear which state’s standard would apply to the lawsuits filed by Dominion and Coomer, since “this whole ‘choice of law’ question is itself quite complicated.”

The legal exposure for media outlets and journalists is not complicated by the litigation privilege. Assuming that Dominion and its executives qualify as “public figures,” the plaintiffs would have to show that the non-lawyer defendants acted with “actual malice,” meaning they knew their defamatory statements were false or published them with “reckless disregard” for their accuracy. That standard, Dominion and Coomer argue, is easily met in this case, since the defendants made highly implausible claims that were not supported by credible evidence and were contradicted by multiple authoritative sources, such as the “industry experts and public officials” cited in American Thinker‘s retraction.

Newsmax and Fox News have aired corrective reports debunking election conspiracy theories amplified by some of their employees. Both outlets have received demand letters from Dominion and Smartmatic, another company that figures in the fantasy peddled by Trump, Powell, Giuliani, and Wood.

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Further Rejoinder on Why the First Amendment Does not Constrain Impeachment and Removal of Presidents

First Amendment

In their latest post on the subject of impeachment and the First Amendment, Josh Blackman and Seth Tillman somewhat belatedly acknowledge the Supreme Court’s longstanding jurisprudence on the free speech rights of government employees. As numerous critics of their earlier posts have pointed out (e.g.—Jonathan Adler, Andrew Koppelman, and myself), the First Amendment  does not protect senior government employees in policy-making positions from being removed from their positions. Indeed, such officials get fired because of their speech on a regular basis—including by Donald Trump himself!

To their credit, Blackman and Tillman acknowledge this, and do not claim that high-level government officials have any general constitutional right against being removed for their speech. But they claim that presidents are different from appointed officials because the latter are subordinates of the president, while the president himself has no superiors, except for the voters during an election year:

Senior appointed policy-making executive branch officers are removable by the President. If they lose the confidence of the President, for whatever reason, even for otherwise lawful speech, he can remove them. Absent constitutionally valid congressional tenure protections, these positions are at will….

The President’s relationship to his subordinate executive branch officers is one of a superior to inferiors. The President is elected; the senior officers are appointed. The President can nominate his senior officers. He can direct them. Generally, he can remove them at will….

By contrast, the President is not a cabinet member, who works for a superior—other than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President’s ability to act like a politician and party leader.

Blackmand Tillman go on to argue that Congress is not the president’s “superior” and therefore doesn’t have the power to remove presidents for their speech, in the way that the president himself can remove his own high-ranking executive branch subordinates.

The problem with the Blackman-Tillman theory is that they overlook the reality that one branch of government can remove members of another even if they are not otherwise the superiors of the latter. The whole point of impeachment is to give Congress the power to remove legislative and judicial officials who abuse their power, commit crimes, or otherwise create a menace to the political system. Congress can also, if it wishes, bar such officials from holding office in the future.

While, as Blackman and Tillman note, “the people” are the ultimate superiors of the president, they also cannot remove the president between elections, even if he severely abuses his power, and they also cannot sanction him for crimes and abuses perpetrated during the “lame duck” period after an election (as in the case of Trump). Impeachment is intended to fill this gap in the constitutional structure. To put it in Blackman and Tillman’s terms, Congress is indeed the president’s superior for the limited purpose of removing him and barring him from future office-holding in response to certain types of illegal or abusive activity on his part. That is perfectly consistent with their not being his superior in various other ways.

As I pointed out in my first post in this exchange, exempting the president from impeachment for speech acts that are protected from criminal and civil sanctions under the First Amendment would have absurd and dangerous consequences. Nothing in the text, original meaning, and history of the clauses of the Constitution governing impeachment creates such an exception to the impeachment power.

The Blackman-Tillman approach would also have the dubious consequence of enabling Congress to impeach lower-level officials for various kinds of speech, but barring them from impeaching the president when he engages in the exact same conduct; this, despite the fact that the impeachment standard for both is actually the same: they can all be impeached, removed, and barred from office-holding in the future if they commit “high crimes and misdemeanors.”

As for the argument that impeachment for speech acts would create a dangerous slippery slope preventing the president from functioning as a politician and party leader, I preemptively addressed it here:

[S]lippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.

The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president’s own party vote to convict him….

Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified.  But the threat of impeachment for abuse of power can at least help at the margin.


Finally, Blackman and Tillman again cite the president of some senators raising the First Amendment as a defense for President Andrew Johnson during his impeachment trial in 1868. I am happy to rest on the points I made against that argument in my previous post in this exchange. For those interested, that post also contains links to the earlier posts in our debate, as well as commentary by others.

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The Armed March That Wasn’t


I was standing outside the state capitol in Harrisburg, Pennsylvania, where gun-toting defenders of President Donald Trump were supposedly going to start marching at noon. I could see cops, I could see National Guardsmen, and I could see dozens and dozens of reporters, but actual protesters were scarce. I did spot a fellow in a Gadsden Flag facemask and a woman whose shirt displayed a slogan about rebellion against tyranny, and as they passed behind me I heard him crack a joke: “I should walk up to the photographers here and say, ‘Excuse me, can you direct me to the armed insurrection?'”

In the wake of the recent riot at the U.S. Capitol, a widely circulated flier had called for armed marches at every state capitol on January 17. That sounded pretty dubious—all 50 states? even the most solidly blue ones?—but it seemed plausible that someone would show up somewhere, and of the capitol cities that I can reach within 90 minutes I figured Harrisburg was the most likely to attract a crowd. The day before, working from a list of upcoming protests that a security firm had been circulating, I had gone to a demo in Westminster, Maryland; it had turned out to be a liberal protest, and not a particularly big or rowdy one. Now I was in Harrisburg, and the first actual protesters to show up were, again, some liberals: A local activist named Gene Stilp and one or two assistants had shown up with a cardboard statue of Donald Trump, which they make a show of toppling for a crowd of photographers.

I did, before that, run into a guy named Eddie with a bunch of “Biden Is Not My President” t-shirts that he’d been hoping to hawk to the marchers. Another t-shirt salesman, who had driven down from Pittsburgh, said he’d been under the impression that this was going to be a Second Amendment march, not a stop-the-steal march. (He might do better tomorrow in Richmond, Virginia, where he plans to set up shop among the gun-rights activists in town for Lobby Day.) A bona fide pro-Trump protester did eventually show up, with a “Fraud 2020” sweatshirt and a megaphone. The general sentiment in his circles, he said, was that the military was going to be out on the street today and that the area was therefore best avoided. But he had decided to head over anyway and represent the That-election-was-probably-stolen-and-did-you-know-that-antifa-infiltrated-the-crowd-at-the-U.S.-Capitol? perspective.

This sparseness did not seem to be unusual: From Salem, Oregon, to Nashville, Tennessee, reports were rolling in of not-quite-demonstrations where the journalists outnumbered the demonstrators. Even the larger protests—like the one in Columbus, Ohio, which the Statehouse News Bureau described as “odd but peaceful”—didn’t see to have drawn more than a few dozen marchers. And the protesters weren’t all playing to type either: In Salem, where a handful of folks from the anti-government boogaloo movement had showed up, one brought a sign that said “Fuck Trump” as well as “Fuck Biden.”

In Harrisburg, the biggest story was all the reporters looking for a story. If you had opinions you wanted to get into the news, this was your golden opportunity. The man in the Fraud 2020 sweatshirt held court for a while, answering reporters’ questions through his megaphone. A black guy berated the cops guarding the capitol building, then announced to everyone present that the real white supremacists were those officers on the other side of the barricade. And the dude in the Gadsden Flag mask wound up holding a little press conference on the Capitol steps. This gradually revealed that—as is often the case at protests, left or right—his politics weren’t as predictable as you might have guessed: He thought Trump on balance had been a good president, but he had also supported impreachment over the Ukraine scandal.

While he was talking, the wind nearly blew the barricade over, to the crowd’s amusement. “Can you arrest God?” someone asked. I’m not completely sure, but I think even one of the cops might have laughed.

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Why do different positions in the government receive different types of free speech rights?

[This post is co-authored with Seth Barrett Tillman.]

Let’s take a step back from the specific context of impeachment. In this post, we’d like to discuss a more foundational question: as a general matter, why do, or why should, different positions in the government receive different levels of free speech rights? 

The House Judiciary Committee report took the position that the President’s free speech rights are more limited than the rights of a private citizen. The report favorably cited posts by co-bloggers Professors Jonathan Adler and Ilya Somin, as well as other academics who reached similar conclusions. The Committee apparently assumed that the President’s free speech rights could be analogized to those of civil servants. The committee staff reported that the First Amendment “applies very differently to speech by government officials and public employees,” and the President “is no ordinary citizen.” The report continued, “the President is subject to different rules than private citizens and can be held accountable for his expression (including all expression relating to his office) in ways that [private citizens] cannot be.” In our view, there are problems with analogizing the President to civil servants. In this post, we will explain our thinking. Our views concern First Amendment rights in general, and not the circumstances of the impeachment process in particular. But our general position would also apply in the specific impeachment context.

In cases like Pickering v. Board of Education (1968) and Garcetti v. Ceballos (2006), the Supreme Court explained that certain governmental employees have reduced free speech rights in certain contexts. This doctrine is a branch or application of the First Amendment. In Garcetti, Justice Kennedy summarized the doctrine: 

Pickering provides a useful starting point in explaining the Court’s doctrine. There the relevant speech was a teacher’s letter to a local newspaper addressing issues including the funding policies of his school board. “The problem in any case,” the Court stated, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” The Court found the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” Thus, the Court concluded that “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”

Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.

For decades, the Pickering test has been subject to widespread criticism. This balancing test is difficult to apply in many different contexts. Justice Kennedy recognized this difficulty in his opinion: 

To be sure, conducting these inquiries sometimes has proved difficult. This is the necessary product of “the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors … to furnish grounds for dismissal.” The Court’s overarching objectives, though, are evident.

What would it mean to apply Pickering to the presidential impeachment process? Is the presidency analogous to the status of a civil servant? Our view is that the reduced free speech rights standards announced in Pickering should not apply to elected officials. Indeed, Pickering did not involve a constitutional claim brought by an elected official. Rather, this case involved free speech claims brought by a government employee–a public school teacher. This position was not subject to election.

As a general matter, we think it is a mistake to analogize the President, an elected official, to a full-time, permanent employee or civil servant. Elected public officials make policy; civil servants and other public employees carry out those policies. The case law permits the civil servants’ speech to be muted so that the government-as-employer can carry out its policy goals. The goal is to ensure that elections remain meaningful, and that the government-as-employer can put forward its message, notwithstanding its employees who may take a different view. We do not suggest that the Pickering line of cases was correctly or incorrectly decided. Our point is more limited: Pickering offers civil servants some free speech protections, but it also allows the government-as-employer to impose some free speech limitations on its civil servants. Those free speech limitations make little or no sense when applied to elected officials.

The Judiciary Committee also analogized the President to senior executive branch officers. The report cited Professor Ilya Somin, who wrote “Donald Trump himself has fired numerous cabinet officials and other subordinates because they expressed views he didn’t like.” On its face, Pickering does not extend to the senior executive branch officers appointed by the President. Nor do we think that Pickering‘s policy rationales should extend to such positions, albeit for different reasons. 

Senior appointed policy-making executive branch officers are removable by the President. If they lose the confidence of the President, for whatever reason, even for otherwise lawful speech, he can remove them. Absent constitutionally valid congressional tenure protections, these positions are at will. They are charged with carrying into execution the elected President’s policy goals within the context of the legal system. We do not think that Pickering protects or should protect these at-will positions who serve at the pleasure of the appointing official. It would be a wholly new and novel claim to say that the President could not fire a cabinet secretary because of a speech the secretary gave. The First Amendment cannot provide a cause of action against such a “wrongful” termination on free speech grounds. (Here, we do not address here congressional protections of tenure.) 

Pickering serves an arguably important role: it ensures that millions of civil servants nationwide enjoy a large share of free speech rights that private citizens enjoy. It would be a tragic loss to democracy if these citizens surrendered all their free speech rights during their entire professional service that could last decades. We think these civil servants stand in a different position than at-will executive branch officers who may serve a four- or eight-year tenure, and will then return to the private sector. There are other reasons to reject the notion that Pickering‘s protections for civil servants’ speech might apply or should apply to appointed senior executive branch officers. The President chooses his officers, but does not, as a general matter, staff or fill civil service positions. The President can remove his officers (in most circumstances), but he does not, as a general matter, have the power to remove civil servants from government employment. Executive branch officers are policy-makers; generally, most civil servants are not. For all these reasons, civil servants stand in a different position from executive branch officers. The President’s relationship to his subordinate executive branch officers is one of a superior to inferiors. The President is elected; the senior officers are appointed. The President can nominate his senior officers. He can direct them. Generally, he can remove them at will. In other words, the free speech concerns that animate Pickering do not apply to senior executive branch officers. We do not suggest that appointed senior executive branch officers are more “important” than civil servants. Rather, these positions tend to exercise more policy-making powers. As a result, when they speak, their message is more readily mis-identified as that of the President they serve. Arguably, the President needs more control over them.

By contrast, the President is not a cabinet member, who works for a superiorother than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President’s ability to act like a politician and party leader. With good reason, the elected President is not subject to the Hatch Act. He is expected to engage in overtly partisan speech. In our view, the President has more expansive free speech rights than civil servants, who have broader free speech rights than at-will executive-branch officers. There is a hierarchy for speech rights for these different positions. It is not the case that principal officers have more rights than inferior officers who have more rights than civil servants. Government officials and officers are not an undifferentiated mass, with identical First Amendment rights. Nor do these rights track the traditional status of positions in the government. Instead, we suggest that elected officials have the widest scope of free speech rights, civil servants enjoy some free speech rights which are subject to certain limitations, and that at-will presidential appointees enjoy the least. This result should not be surprising. Indeed, the whole point of nineteenth century civil service reforms was to insulate civil service positions from party politics, as opposed to transferring policy-making out of the hands of the elected government. 

Finally, we do not hold a novel position about the President’s free speech rights. During the Johnson impeachment trial, several senators articulated our view that the President ought to have free speech rights that are as expansive as those of private citizens. 

Senator John Henderson of Missouri stated plainly that “the President, like other persons, is protected under” the First Amendment. “He too,” Henderson continued, “has the right to make foolish speeches.” Senator James Grimes of Iowa admitted that Johnson’s speeches were “indiscreet, indecorous, improper, [and] vulgar.” But he could not “attempt[] to repress the freedom of speech.” Senator Peter Van Winkle of West Virginia said the First Amendment was “unquestionably of universal application,” even to the President. Senator Joseph Fowler of Tennessee boasted that Johnson did no “more than exercise that liberty of speech guaranteed to him by the Constitution.” Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only “den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs.” The President, Fessenden contended, has the right to communicate with the people. And the people have a right to hear those communications.

We do not here, nor did we in our prior post, cite these senators as holding the only view about the scope of the President’s free speech rights in the impeachment context. We acknowledged that some senators who voted to convict, as well as the prosecuting House managers, rejected this free speech argument. Our goal was not to say, and we did not say, that the Johnson trial established the correct position. Rather, we raised this history to show that the issue was, and remains, fairly contestable. In 1868, there was a difference of opinion about what speech rights the President has. That same debate exists today. This issue is not clear. It is not settled. There is no controlling on-point judicial precedent. There is some on-point discussion from a prior presidential impeachment. And those debates from the Johnson Senate trial provide some support for our position. But we do not think this issue has been resolved or liquidated. 

The Judiciary Committee report concluded that freedom of speech “applies very differently” to the President “by virtue of his office” than it does to “private citizens.” Moreover, the Committee endorsed the views of constitutional scholars who relied on cases analogizing the President’s free speech rights to the free speech rights of civil servants. Going forward, the House managers, acting as prosecutors, will have to explain how those cases are analogous to elected officials, including the President. The managers may contend that the President is only accountable to the People every four years during the election season. But during the gaps between elections, the People cannot act. So, during that interregnum, Congress acts as the President’s superior—apparently in much the same way that the Board of Education acts as a teacher’s superior. We reject this analogy between the President and civil servants. Congress is not the superior to the inferior President. They are both elected. They both make policy, within the confines of complying with the legal system. They are both authorized in different ways to control the government-as-employer. As a general matter, Congress does not stand in the role of the employer vis-a-vis the President. If the President has an employer, it is the People, not Congress through impeachment. And that role exists throughout the entirety of a President’s four-year term, and not only during the short election season.

Pickering and Garcetti were cases about civil servants. These precedents do not furnish good analogies to justify removing elected officials for purported speech-related wrongs.

We close with another note of caution. Since January 6, many professors have formed firm conclusions on difficult and novel constitutional questions that have not been judicially resolved or otherwise clearly established in prior House and Senate impeachment proceedings. Some of these issues have never been adjudicated in any forum. Some academics strongly objected to our position that the President should have the full scope of traditional free speech rights in general, and in the impeachment process, in particular. But it is evident that this view was articulated during President Johnson’s senate trial. Right or wrong, that view cannot be dismissed out of hand. 

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

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Can President Trump Pardon Himself?

Article II of the Constitution gives the president “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Donald Trump believes he has the power to pardon himself for whatever federal crimes he may have committed as president.

The presidential self-pardon has never been judicially tested. No president has issued a self-pardon, although there was serious consideration of it in the cases of Presidents Richard Nixon (for the Watergate scandal), George H.W. Bush (for the Iran-contra scandal), and Bill Clinton (for the Whitewater scandal). Neither has any president been criminally prosecuted.

In today’s Washington Post, I argue the Constitution does not give him the power to pardon himself. Although he has claimed such a power, and soon may purport to exercise it, the constitutional basis for it would be weak. Here’s some of the argument:

The “power to grant … pardons” is a legal term of art that, in its historical context, should not include self-pardon. The notion grants the president something akin to a monarchical power, a governmental form against which the very founding of the United States was a rebellion.

The concept of the self-pardon also violates other foundational principles of the laws on which the country is based. Justice Chase wrote in Calder v. Bull (1798), “[Regarding] a law that makes a man a Judge in his own cause … [i]t is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.” In Federalist No. 10, James Madison contended, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” On this basis, the Office of Legal Counsel concluded in 1974 that the president cannot pardon himself.

Self-pardons are a particularly noxious form of self-dealing that undermine the rule of law itself. As Chief Justice John Marshall wrote in Marbury v. Madison (1803), the Constitution makes the United States “a government of laws, and not of men.” Not even a president is above the law.

These principles would apply to any attempted presidential self-pardon.

But there is a further reason to doubt the self-pardon authority in Trump’s case:

Pardons cannot be granted “in Cases of Impeachment.” The dominant interpretation of this Impeachment Exception Clause is that it only prohibits a president from obstructing the impeachment process or shielding an impeached official from the consequences of a Senate conviction (e.g., removal from office and disqualification). . . .

Whatever the president’s power to shield other impeached officials from criminal prosecution, the best reading of the Impeachment Exception Clause is that he should not be allowed to pardon himself. Here’s why: The president is sui generis in our constitutional system. He is entrusted with mighty powers and unique obligations. The president “shall ‘take Care that the Laws be faithfully executed.” (Art. II, Sec 3) Yet impeachment calls into serious question his ability to do so.

While the executive pardon power is broad, the Impeachment Exception Clause could be understood in a correspondingly broad way to provide a check on the president’s license to escape the consequences of his own lawlessness. This textual limitation on the pardon power could be interpreted as consistent with the Constitution’s structure, because it would reinforce the separation of powers among the three coequal branches. It would prevent the president from avoiding a Senate trial and future ramifications in legal proceedings overseen by the judiciary.

Trump’s conduct involves a “Case of Impeachment” (regardless of whether he is convicted by the Senate), and thus it would be excepted from the executive pardon power.

It seems unlikely this issue will be addressed in a federal court. Trump may decide, for strategic or other reasons, not to pardon himself. Whether he does or not, the Justice Department may decide, for legal or prudential reasons, not to pursue prosecution. And if Trump is prosecuted, he has possible defenses other than the self-pardon.

But if our Constitution and legal traditions are followed, he should not be allowed to plead, “I beg my pardon.”

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Today in Supreme Court History: January 17, 1973 and January 17, 1996

Frontiero v. Richardson (1973) and United States v. Virginia (1996) were argued on the same day, twenty-three years apart. Ruth Bader Ginsburg argued the former case, and wrote the majority opinion in the latter case.

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Sex, Communism, Race, and Creative Freedom in Hollywood


In 1934, the creative freedom of unconstrained Hollywood came to a halt, setting the stage for decades of self-serving attempts at internal censorship and creative control.

Until then, filmmakers went about their business more or less unchecked, pushing the era’s moral limits with bawdy humor, violent crime, and sexual provocation. There was James Cagney swaggering and shooting his way through The Public Enemy (1931), a portrait of a bootlegging gangster who built an empire out of “beer and blood” (and famously assaulted his nagging girlfriend at the breakfast table with a grapefruit to the face). There was Barbara Stanwyck sleeping her way to success in Baby Face (1933), leaving a trail of heartbroken (and sometimes dead) lovers in her lusty wake. There was adultery! Abortion! Profanity! Visible undergarments! At the end, righteousness would usually prevail—the antihero would repent and reform or die trying—but this was strictly perfunctory. Then, as now, audiences loved a story that made being bad look good. And then, as now, the popularity of sensational and sexy movies began to raise questions about their effect on impressionable viewers.

Amid a climate of concern that edgy films might spark immoral behavior, and with the threat of government censorship close behind, Hollywood set out to get ahead of the game. In 1927, a committee of studio execs, at the behest of a freshly anointed industry honcho named Will H. Hays, had already collaborated to publish a now-infamous list of “don’ts and be carefuls,” a 37-item litany of topics that filmmakers agreed would be either approached with caution or avoided entirely.

The taboos were numerous and wide-ranging: “Sexual perversion,” drug use, miscegenation, and profanity (including irreligious exclamations of “My God!”) were completely off-limits, while a soft touch was urged when depicting murder techniques, law enforcement, or (my favorite) portrayals of safecracking or dynamiting, due to “the effect which a too-detailed description of these may have upon the moron.” Initially toothless, in 1934 the list evolved into the powerful Motion Picture Production Code, Hollywood’s most famous and most restrictive self-censorship mechanism.

Today, the Production Code is gone. But its spirit lives on—not in taboos and restrictions about what filmmakers can’t say or show, but in guidelines and expectations about what morally upstanding, socially conscious filmmaking ought to be.

It’s against this backdrop that Hollywood makes its latest foray into content restriction with a new set of diversity standards for Oscar-eligible films, which the Academy of Motion Picture Arts and Sciences announced in September. Starting in 2024, best picture nominees will be required to comply with what amount to quotas for race, sexuality, and gender. The move is part of what the Academy describes as a bid to bring more diversity to the casts, crews, and storylines that receive its highest honor.

The new requirements come in the wake of considerable struggles for the industry body. In 2015 and 2016, an all-white slate of acting nominees prompted viral outrage in the form of the #OscarsSoWhite backlash; in 2017 and 2018, the yearly awards show was haunted by the ghost of Harvey Weinstein, who had been the recipient of many a gushing thank you from the Oscars stage before he was righteously toppled by the #MeToo movement. The ceremony itself, meanwhile, has struggled for years to find a host unproblematic enough to please the Twitter crowd but charismatic enough to reverse an embarrassing year-over-year ratings drop, fueled by a sense that the Oscars are increasingly elitist, self-indulgent, and shrilly political in a way that’s unrelatable and irritating to normie audiences.

Add to this the ongoing, fractious internal battles within the Academy over the encroachment of Netflix and other new-kid studios into their prestigious club, and you’ve got a perfect storm of scrutiny—the type Hollywood has always sought to preempt with the shiny new promise of self-regulation. The standard practice in the past has been to throw a bone to Hollywood’s critics, who can then squabble over it while the real power players go back to business as usual. Or at least, that’s the idea.

In a way, these battles represent a new front in Hollywood’s diversity wars. But in another sense, they are nothing novel. The Academy was formed in tandem with Hollywood’s early content code, and it has been enmeshed in battles over what constitutes acceptable or desirable on-screen content—a matter in which the film industry has always yearned to both eat its cake and have it. Hollywood wants to wield total creative control and unimpeachable moral authority, to wag its finger out in public before retreating to backroom debauchery, to be seen as an idealistic protector of the arts against the forces of censorship and conformity while keeping box-office cash coming.

And like the Code that ruled during its Golden Age, Hollywood’s signature awards ceremony isn’t just a glitzy vehicle for celebrating Tinseltown’s best; it’s about control. The imprimatur of the Academy is a powerful influence on filmmakers’ output and public perceptions of the movie business alike, but more than that, it imagines Hollywood as an arbiter of goodness. What must we say? How should we live? What moves us to fear, to tears, to disgust? Sit back, let the lights go down, and await further instructions.

The Trial of Fatty Arbuckle

The Hays Code ushered in a golden era of morally conscious filmmaking—or so the industry claimed, even as directors found ever more creative ways to remain compliant to the letter of the law while simultaneously thumbing their noses at its spirit.

Alfred Hitchcock was particularly masterful at tweaking the censors. Many of his films initially contained extravagantly vulgar material that was meant to be cut, the better to pack more coded transgression into the finished product. In To Catch a Thief, for instance, the camera cuts from a canoodling Cary Grant and Grace Kelly to an explosive fireworks display outside their window, a totally unsubtle suggestion that sexual ecstasy is occurring just out of frame. Hitchcock supposedly slid it past the censors by agreeing to cut a far more in-your-face gag involving police officers and a collection of salacious postcards. And then there were the elaborate workarounds, as in the Notorious scene where Cary Grant and Ingrid Bergman ingeniously skirt the edict against “lustful kissing” by nuzzling each other’s faces for four excruciatingly erotic minutes while only allowing their lips to actually touch for a couple seconds at a time.

But more than an opportunity for either moral grandstanding or cheeky rule-flouting, the Code was a vehicle for the anxieties, prejudices, and political concerns of its time—and an early exercise in Hollywood’s ongoing creative maneuvering to maintain a pretense of compliance without actually sacrificing its freedoms, its power, or its profits.

Despite all that lofty language about the dangers of depicting bad acts on screen, it wasn’t the ideologically malleable morons in the audience the movie moguls truly feared. It was overreaching government and meddlesome activists, always seeking to stick their noses into Hollywood’s business.

In the early 1920s, anti-Hollywood sentiment was on the rise, and state legislators were introducing movie censorship bills by the dozens as political pressure mounted to do something about its destructive influence. By the 1930s, the threat of federal censorship loomed as well.

The anger was fueled by a sensational proto-#MeToo scan-dal surrounding actor Roscoe “Fatty” Arbuckle, who was indicted for manslaughter in the death of actress Virginia Rappe. Rappe died of a ruptured bladder after attending a party in Arbuckle’s hotel suite, an illegally booze-soaked affair in the midst of Prohibition, and rumors quickly spread (with no small amount of help from the press) that she had been lethally crushed by the 260-pound Arbuckle as he attempted to rape her.

Arbuckle was acquitted after three trials, but he became a public mascot—and eventually the scapegoat—for the industry’s moral turpitude. Religious associations and women’s groups formed an alliance to demand that the actor be permanently banned from the screen, a campaign with eerie parallels to 2020’s debates about when (or if) someone accused of #MeToo infractions, such as Louis C.K. or Aziz Ansari, should be permitted to return to work; a 1922 New York Times report quotes a Mrs. Trueworthy White, chairman of the Citizens’ Committee of the Massachusetts League of Women Voters, saying that she “could not understand how anybody could be interested in Mr. Arbuckle anymore.”

The Hays Code, then, was pure calculation: a self-inflicted wound to preclude the greater nuisance of meddlers from outside the system, lest Arbuckle and other scandals become a tipping point for the government to seize control of the film industry. Agreeing to police itself from inside the house allowed Hollywood to stay in control and in the black, placating critics with anti-kissing regulations and morality clauses—and blithely throwing stars like Arbuckle under the bus—while keeping its backrooms and shady business practices free from prying eyes.

And they did it over and over, from censoring the pre-Code film All Quiet on the Western Front so as not to offend Nazi sensibilities to blacklisting alleged Communists in an effort to avoid government investigation or interference.

McCarthy at the Movies

In 1947, two decades after studio heads first convened to create the “don’ts and be carefuls,” another emerging threat prompted promises of self-regulation from the film industry—this time in the form of the Waldorf Statement, a press release from the Motion Picture Association of America vowing “positive action” against “alleged subversive and disloyal elements in Hollywood.” Again, the motivation was as much economics as it was self-protection. The film industry had just incurred an intrusive investigation by the House Un-American Activities Committee (HUAC), so it was feeling political pressure to act. But its loyalty oath also kept Hollywood in the good graces of influential private groups, like the American Legion, which was threatening boycotts of films and theaters it deemed to be in cahoots with the commies.

The Academy went along to get along when it came to the Hollywood blacklist, in keeping with the principles of its founder, MGM bigwig Louis B. Mayer. Long before McCarthyism reared its head, Mayer had been unnerved by the rising power of Hollywood unions. He hoped to preempt their influence by drawing actors, directors, writers, and other creative professionals into a desirable club of his own creation.

 The Academy was specifically designed to undercut workers’ interest in organizing. The Oscars kept them distracted and cooperative while the studios stayed in control. Mayer famously bragged about how he used the promise of a spangly gala and a golden statuette to manipulate filmmakers: “If I got them cups and awards, they’d kill themselves to produce what I wanted.”

There were to be no cups or awards for Communists, of course. In the wake of the Waldorf Statement, the Academy added its own stamp of moral approval to the blacklist, excluding “subversives” from Oscar eligibility while also lauding the figures who cooperated. While blacklisted writers went to prison or fled the country and struggled to eke out a living on the fringes, HUAC informants Elia Kazan and Budd Schulberg received Academy Awards for On the Waterfront, a film that starred fellow “friendly witness” Lee J. Cobb and whose storyline about whistleblowing against corrupt union bosses is widely understood to be a thinly veiled apologia for the filmmakers’ choices to name names. According to Kazan, Marlon Brando’s famous line—”I’m glad what I done!”— is “me saying, with identical heat, that I was glad I’d testified as I had.” Perhaps needless to say, Kazan’s defense of the blacklist, which was itself a vehicle for the most un-American sort of thought policing and censorship, hasn’t aged well; when he received a lifetime achievement Oscar in 1999, roughly half of the audience sat on their hands and did not applaud.

It took 10 years (and the embarrassment of accidentally awarding the blacklisted Dalton Trumbo a screenwriting Oscar for a film written under a false name) before the anti-Communist cultural hegemony began to crack—at which point Hollywood stopped stoking fears about the Red Menace and, eventually, started making films about heroic speech warriors standing up to authoritarian overreach.

The HUAC witch hunts are long since over, and the draconian Hays restrictions have long since been replaced by the MPAA rating system; one might imagine that the bad old days of censorship are behind us. But even now, filmmakers still self-censor, or seek creative workarounds for edgy content, in order to snag a less restrictive rating that yields bigger numbers at the box office.

And while the studio system of old-school Hollywood has long since disappeared, corporate influence remains strong. If the studio execs see an economic benefit to certain content restrictions, filmmakers have little choice but to fall in line. Disney, for instance, holds its directors to three strict taboos: no beheadings, no impalement, and no smoking—unless it’s portrayed “in an unfavorable light.” The Hays Code is gone, but the instincts that fueled it are still firmly ingrained.

Content Code Protectionism

This century-long tug of war for control—the power to decide which stories get told, and how, and by whom—is crucial context for the latest content code to make waves in Hollywood.

The Academy, which today is made up of about 10,000 members from various parts of the film industry, will soon require best picture hopefuls to check the box in two of four categories. The first, “Onscreen Representation, Themes and Narratives,” drew the most attention for what seemed like an eyebrow-raising level of interference in the creative process, with the capacity to influence the content and/or casting of films. But a close read of the new standards reveals that they’ll be relatively easy to meet for most filmmakers, particularly those with major studio support—which is, of course, the point: Hollywood’s content codes have long served as protectionism for the industry’s major players.

Much like the Hays Code, the Academy’s diversity standards dropped at a pivotal moment, amid a resurgence of anti–Hollywood sentiment—this time surrounding perceived shortcomings in matters of diversity, representation, and social justice. It’s one of many ways in which the Academy and its codes are historically intertwined, a relationship that has displayed remarkable longevity even as notions of morality and quality continue to evolve.

 As recently as 10 years ago, Hollywood’s power still consolidated into a more or less familiar loop: The studios decided which movies get made, while the Academy steered our notion of which movies are good, in multiple senses of the word. Today, the Academy Awards are as much about signaling Hollywood’s political and cultural correctness as they are about rewarding exceptional filmmaking (see: Al Gore, Oscar winner).

The film industry’s ability to keep its hands on the cultural controls depends on preserving this dynamic. For the Academy to find itself on the wrong side of history, pummeled by the double whammy of #OscarsSoWhite and the #MeToo movement, is not just embarrassing but threatening—particularly at a moment when the culture at large seems to be taking a great leap forward. And while “cups and awards” might have kept filmmakers in thrall for decades, creative and critical power isn’t concentrated the way it used to be.

While Steven Spielberg was throwing a tantrum over letting Netflix into the Oscars, Martin Scorsese made the streaming service the home for his latest three-hour moody mafia flick. Digital technology and smartphones have drastically lowered the bar for budget filmmaking and attracted experimental-minded auteurs like Steven Soderbergh, while the proliferation of on-demand and streaming media creates a massive glut of new content, more than any one person could ever consume.

The challenge this year is even greater, as COVID-19 has shuttered theaters in major markets, delayed tentpole releases, and left Hollywood without its usual abundance of popular and prestigious films to award. The Oscars have already been delayed and the deadline for entrants pushed back. The requirement that movies debut theatrically in order to qualify for awards, a massive source of conflict in years past, has been dropped without fanfare or objection (albeit with promises that it’s just this once).

But even before the coronavirus killed the movie theater, the balance of power was shifting as distributors experimented with simultaneous on-demand releases—and as small-screen production values were giving Hollywood blockbusters a run for their money. Prestige filmmakers, actors, and writers are increasingly turning to television, where anthology-style series let them stretch a story over 10 luxurious hours. And a cultural discourse that used to be driven by elite tastemakers is now happening largely on social media, where even Hollywood’s critical darlings can be destroyed by viral backlash.

Amid all this change, the new Oscars diversity standards are a plea to be left alone and in controla way of saying: See, you can trust us! We’re the good guys!—before the next hashtag-driven controversy forces them to start policing the filmmaking process in more intrusive, and less financially comfortable, ways.

But they’re also a last-ditch play for continued relevance from an industry that still sees itself as a vital engine for social change, that can’t quite fathom how it fell behind the times. At a time of enormous unrest and uncertainty that has shaken some of the country’s most storied institutions at their foundations—and in an era when diversity and inclusion is such a brand necessity that even Doritos has announced a partnership with Black Lives Matter—there’s a palpable desperation at the idea that Hollywood might have lost its place as an influencer.

Like the Hays Code before it, the diversity requirements are Tinseltown’s way of asserting cultural dominance through self-policing in a time of cultural and economic turbulence. The new requirements work the way the Oscars have always worked: by setting an agenda, and by defining what high-quality, culturally important filmmaking looks like. Only this time, instead of telling filmmakers what they can’t say, they’re instructing producers, writers, and directors—those who aspire to Hollywood’s commanding heights, anyway—what they have to say, and in turn, instructing American viewers as to what they’re supposed to think.

It’s an attempt to enforce cultural hegemony by an industry increasingly anxious about its status. After all, movies have been moving the needle on our moral compass for a hundred years. Could so much have changed? Surely Twitter has not replaced Tinseltown as the nexus of cultural power. Surely America still needs Hollywood to tell us what’s good, what’s beautiful, what’s right. Because if not Hollywood, who? Won’t someone please think of the morons?

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Biden Promises to ‘Manage the Hell Out’ of the COVID-19 Vaccine Rollout


President-elect Joe Biden on Friday promised that his incoming administration will be “sparing no effort to get Americans vaccinated” against COVID-19. Citing the rising number of COVID-19 cases, hospitalizations, and deaths, he did warn that Americans still face “a very dark winter” and that “things will get worse before they get better.”

Noting that the “vaccine rollout in the United States has been a dismal failure so far,” Biden outlined five things his administration plans to do to achieve his goal of administering 100 million shots in 100 days after he takes office next week.

First, his team will work with states to open access to vaccines to more groups of people, including Americans aged 65 and older. In addition, the vaccines will be targeted to reach more first responders, teachers, and grocery store workers.

Second, his administration will open 100 federally supported vaccination sites by the end of his first month. They will be located at facilities such as school gyms and sports stadiums. In addition, mobile vaccination clinics will be up and running with the help of  local community health organizations. He will end the shortage of vaccinators by mobilizing emergency medical first responders, retired health care professionals, and military medical care personnel. In addition, states will be reimbursed 100 percent for calling up their national guard units to aid in the vaccination push.

Third, citing the successful role of local pharmacies in administering flu shots, Biden is mounting “a major new effort” to “fully activate pharmacies across the United States” as centers for dispensing COVID-19 vaccinations. Americans should be able to get their inoculations close to their homes.

Fourth, Biden said that he will apply the “full strength of the government” to ramp up the manufacturing of vaccines and medical supplies like tubes and syringes. Planning to invoke the Defense Production Act, Biden said that members of his COVID-19 task force are already talking with companies about what they can do to speed this process up.

Fifth, Biden promised to be transparent about vaccine supplies and when Americans can expect to gain access to them.

Biden added that his administration would counter disinformation about the safety of the vaccines and seek to allay the concerns of those Americans who remain hesitant about getting vaccinated.

The president-elect ended with an admonition to continue to do what works to slow the transmission of the virus: Wear masks (especially in crowded indoor spaces), wash your hands, and maintain social distancing.

Notably, the president-elect did not mention any plans to ramp up COVID-19 testing availability.

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Nationalists, not Immigrants, are the Real Threat to Liberal Democratic Institutions


One of the most common justifications for immigration restriction is the claim that letting in too many of the wrong type of immigrants would undermine liberal democratic institutions. In the worst-case scenario, their flawed culture, values, or political ideologies could “kill the goose that laid the golden egg” that attracted immigrants in the first place, and turn the receiving nation into a cesspool of despotism. Such concerns deserve to be taken seriously, and I devote a large part of Chapter 6 of my  book Free to Move: Foot Voting, Migration, and Political Freedom to addressing them. Alex Nowrasteh and Benjamin Powell’s just-published Wretched Refuse? The Political Economy of Immigration and Institutions undertakes the same task in much greater depth, and is likely to become the most authoritative treatment of the subject.

But, as Nowrasteh points out in a recent blog post, the focus on immigrants as a threat to American institutions leads many to overlook the much greater danger posed by nativist nationalists —the people most hostile to immigration. Recent events highlight the severity of that threat:

Benjamin Powell and I wrote our book Wretched Refuse? The Political Economy of Immigration and Institutions to address the argument that liberalized immigration will undermine the very American institutions that created economic prosperity that attracted immigrants here in the first place. Immigrants generally come from countries with political, cultural, and economic institutions that are less conducive to economic growth than those in the developed world. The fear is that they’d bring those anti‐​growth institutions with them. Thus, as their argument goes,… immigrants could actually kill the goose that lays the golden eggs.

As we assiduously document, immigrants do not bring those institutions with them and there is even evidence that immigrants improve institutions after they immigrate.

It’s ironic that the immigration restrictionists most worried about immigrants degrading American institutions are attacking those very institutions at every level. After President Trump lost his reelection bid, the most nativistic members of his party have embarked on a quest to reverse the election. A dozen Republican Senators, mostly those supportive of cutting legal immigration, plan to object to the certification of Biden’s win over Trump. Over 100 representatives could join in too. President Trump cut legal immigration more than any other president and he recently threatened Georgia election officials.

Immigration restrictionists have also attacked the institution of private property. The Trump administration has seized or is trying to seize 5,275 acres of privately owned land to build a border wall, most of it in Texas. Trump even diverted Congressionally appropriated funds from the military to build the border wall….

Many in Trump’s orbit are also conspiracy theorists or work with them at every opportunity. Making up stories to tarnish your opponents and believing in nutty conspiracy theories both break down trust in institutions, which is exactly what some nativists claim immigration does to the United States.

Alex’s post was published on January 5, the day before the attack on the Capitol by pro-Trump rioters. But the events of that awful day further demonstrate his point. While we do not have detailed demographic data on them, it is highly likely that the rioters were overwhelmingly native-born whites—and (much more importantly) strong supporters of Trump’s nationalist, anti-immigration agenda.

Political scientists and survey researchers find that white ethnic nationalism and hostility to immigration are among the strongest predictors of support for Trump and his agenda. Those who fear that immigrants are a menace to American culture and institutions also tend to be most likely to tolerate and make excuse for Trump’s authoritarian tendencies.

Some of the awful events of the last few weeks are the result of Trump’s distinctive personality and behavior, and of idiosyncratic characteristics of the American political system. But many are common characteristics of ethno-nationalist anti-immigration movements around the world. Over the last century, it has been extremely common for nationalist movements hostile to immigrants and ethnic minorities to subvert democratic institutions, often eventually installing brutal dictatorships.

The Nazis are, of course, the most notorious example. But the same was true of other early-20th century fascist movements in Italy, Spain, and elsewhere. More recently, nationalist movements have destroyed or severely undermined democracy in Russia, Turkey, Hungary, Poland, Brazil, the Philippines, India, and elsewhere. In each of these cases, authoritarian nationalists claimed to represent the true will of the people—defined as those of the majority ethnicity, religion, or culture.

Such claims also naturally lead to the idea the election victories by the opposition must be illegitimate, because only the nationalists represent “real” Americans, Hungarians, Russians, Poles, or Indians (defined, again, as members of the majority ethnic or culture group, free of “foreign” influence). Nationalist movements also commonly promote conspiracy theories. If they alone represent the will of the people, any political setbacks must be due to the machinations of  shadowy, nefarious forces, such as foreigners, “globalist” elites, international bankers, Jews, and so on.

Trump’s conspiracy-mongering about the 2020 election, complete with claims that the vote was falsified by illegal immigrant voters, foreign agents, and others, is of a piece with similar conspiracy-mongering by Vladimir Putin, Viktor Orban, and other nationalist leaders in Europe and elsewhere.

The US is not as far-gone as Russia, Hungary and other nations that have succumbed to authoritarian nationalism, and our democratic institutions are (so far) stronger than theirs. But we would be foolish to ignore the parallels between these movements and Trumpism, and even more foolish to ignore the risks of letting such movements grow. Trump and his allies themselves recognize the similarities, and have embraced Orban, Putin, and other similar leaders and movements (including ethno-nationalists in Western Europe), as ideological soulmates.

By contrast with the long record of nationalists subverting democracy, there are no modern instances of a democracy collapsing or even significantly degenerating because of the political influence of immigrants with illiberal ideologies. In their book, Nowrasteh and Powell document how liberal democracies such as the US and Israel have coped well with large-scale immigration from repressive, undemocratic societies. That is partly because most immigrants from such nations don’t actually support the ideologies of the regimes they are fleeing (that is a key reason why many fled in the first place), and partly because liberal societies have strong capacity to absorb and assimilate people.

A more sophisticated variant of the claim that immigrants are a threat to democratic institutions is the idea that the problem is not the immigrants themselves, but rather the political backlash they generate. Excessive immigration, it is said, bolsters the political fortunes of authoritarian nationalists (including Trump!), who in turn undermine democratic institutions when they come to power. Thus, we must restrict immigration to protect ourselves against native nationalists.

One flaw in this argument is that survey data consistently shows that most people in both the US and Europe consistently overestimate the true amount of immigration, and those most opposed to immigration overestimate the most. Given such widespread ignorance, we cannot assume that, say, a 10% reduction in immigration will lead to a parallel reduction in ethno-nationalist sentiment.

It is also worth noting that hostility to immigration among natives often tends to be greatest in parts of the US and other countries that have the fewest immigrants. Indeed, it is striking that anti-immigrant nationalist movements came to power in Hungary and Poland, countries with very few immigrants (no more than 4.6% of the population at any time in the last 30 years, in the case of Hungary; no more than 3% in the case of Poland, and much lower in the last 20 years). This too weakens claims that we can reduce support for illiberal nationalist movements simply by cutting back on immigration at the margin.

Efficacy aside, the idea that we must restrict immigration in order to protect against native-born nationalists is morally perverse. It suggests we severely restrict the liberty and opportunity of innocent people in order to protect against wrongdoing by others. The innocent people in question include natives, as well as potential immigrants, since immigration restrictions also impose severe burdens on many of the former.

The backlash-prevention rationale for immigration restrictions is similar to nineteenth-century claims that we must allow southern whites to impose racial segregation on blacks in order to prevent the former from continuing to engage in violence and otherwise pose an ongoing threat to the Union. And, indeed, immigration restrictions have many similarities to domestic racial segregation, as both impose severe constraints on liberty and opportunity based on arbitrary circumstances of birth, and often based on the desire to maintain the dominance of a given racial or ethnic group.

If we must restrict liberty in order to protect ourselves against illiberal nationalists, the most appropriate people to target should be the nationalists themselves. But I hasten to add that I do not believe the US and other Western nations should actually go down this path, so long as there is any other plausible alternative. There should be a strong presumption against any constraints on civil liberties—even including those of people who have little respect for liberal values, themselves.

We cannot completely rule out the possibility that there are cases where illiberal immigrants pose a threat to democratic institutions. In my book, I describe potential extreme situations where that could be a real threat. But, in the vast majority of cases, the far greater menace to democracy is that posed by nativist nationalism.





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