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If Trump Doesn’t Want a War With Iran, He Should Stop Pushing Iran Towards War

Four tankers off the Emirati coast were damaged last month by what investigators concluded were explosives attached to the ships’ hulls. The Trump administration immediately pointed to Iran or Iranian-directed proxies as the perpetrators of the attacks. Yesterday, two more ships were attacked near the Strait of Hormuz. And for the second time, Trump administration officials blamed Tehran for the incident, citing a grainy, black-and-white video of an Iranian vessel purportedly approaching one of the ships to remove an unexploded mine hours after the attack happened.

While the circumstances remain murky, we should not be surprised if investigators prove that Iran’s Islamic Revolutionary Guard Corps conducted or ordered these strikes. Why? Because U.S. economic sanctions against Iran are crushing an already cash-poor economy, and retaliation was inevitable. If the Trump administration continues its policy toward Iran, we could very well find ourselves in a war nobody wants.

To a wide cross-section of the Washington foreign policy establishment, Iran is the source of all mischief in the Middle East. Iran sponsors terrorism, leverages proxies around the region to keep its opponents on the defensive, threatens to use crude oil as a weapon, and continues to develop the region’s largest ballistic missile arsenal. Foreign policy pundits frequently talk about Iran as if it’s building another Persian Empire, or is just a whisker away from becoming a regional hegemon.

While those are impossible ambitions considering Iran’s limited economic, political, and military power, the Trump administration’s “maximum pressure policy” is rooted in these beliefs. In an attempt to force a significant change in Iran’s behavior, the White House has wielded the stick almost exclusively through an increasingly complicated sanctions architecture, an increase in military assets to the Persian Gulf, and threats of military action. If President Trump does call for dialogue with Iran, it’s prefaced on the Iranian government capitulating to every American demand.

The problem with this approach, however, is that Iran was never going to throw up the white flag. No Iranian leader worth his salt would even consider surrendering to a country hellbent on toppling the Islamic Republic. From the Iranian perspective, the U.S. is not to be trusted in any way, shape, or form; indeed, to do so would be reckless and irresponsible.

Any realist could have predicted how Iran’s government in Tehran would respond to Washington’s sanctions campaign. Throughout its 40-year history, the Islamic Republic has known mostly war and rivalry with stronger and wealthier adversaries; these experiences have given the country’s leaders a virtually unlimited supply of paranoia. Add to that picture Washington’s withdrawal from the Iranian nuclear deal, and it’s no wonder Tehran has concluded that cooperation invites more aggression.

Instead of coming back to the negotiating table in a weakened position, as Washington assumed, Iran is lashing out and sending a message to the United States—if you continue the economic and military pressure, expect more incidents like what happened this week in the waters of the Persian Gulf.

The question now is what the administration should do. Trump has dug into a hole he must find a way to get out of. He can continue digging, piling on even more sanctions in the hope that Iran’s current regime will collapse or give up. Or, he can put down the shovel and offer Iran a diplomatic exit-ramp before the situation gets irreparably worse.  

President Trump claims he doesn’t want a war with Iran, but rather a negotiation. This is a welcoming and promising goal. But if the president actually wishes to put this goal into practice, he needs to ignore his more hawkish national security advisers.

It’s time to stop the war games and start talking. War with Iran would make Washington’s years-long war in Iraq look like a walk in the park.

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His Father Was Murdered. He Helped End the Death Penalty Anyway.

In May, the death penalty died in New England. A bipartisan legislative majority in New Hampshire, the final state in the region to enforce capital punishment, voted to override Gov. Chris Sununu’s (R) veto of a bill abolishing the death penalty. At the time of his veto, Sununu urged those legislators to consider the “victims of violent crime across this state.”

While it is often assumed that victims of violent crime tend to support capital punishment, one of New Hampshire’s most outspoken death penalty critics lost his own father to an act of violence.

“I wanted to be more than somebody who is the son of a murder victim,” says Renny Cushing, a Democrat who represents the Rockingham district and serves as the chair of the state’s House Criminal Justice and Public Safety Committee. In 1988, Cushing’s father was shot and killed before his mother’s eyes. Similar tragedy struck his family again in 2011 when his brother-in-law was shot and killed in Tennessee.

His father’s death taught him that nothing “prepares one to be the survivor of a homicide victim.” When a family friend approached Cushing in a grocery store to express the hope that the state would “fry the bastard,” Cushing says he didn’t initially know how to respond.

His Irish Catholic upbringing called for him to stand by a consistent life ethic, he explains, which promotes the sanctity of life “from womb to tomb.” This influenced his opposition to the death penalty before he lost his father. Yet that family friend had assumed that his father’s murder would cause Cushing to change his position.

“As I thought about that over a couple of weeks, I realized that if I had done that, if I changed my position on the death penalty because my father was murdered, that would, in some ways, kind of be a compounding of the loss,” he says. Not only would he have lost his father, but he would have lost the values he held dear.

Confronting such assumptions was the beginning of Cushing’s anti-death penalty advocacy. In 1998, he presented his first death penalty repeal bill to the state legislature.

Twenty one years later, the repeal effort long championed by Cushing and others has finally paid off.

Bipartisan support was a major factor. “Ending New Hampshire’s death penalty would not have been possible without significant Republican support,” says Hannah Cox, national manager of Conservatives Concerned About the Death Penalty. “Increasing numbers of GOP state lawmakers believe capital punishment does not align with their conservative values of limited government, fiscal responsibility, and valuing life.”

The Republican side also had its own figure who was able to speak from the victim’s point of view. Sen. Ruth Ward’s (R–Stoddard) father was taken from her family by violence when she was only seven years old. While announcing her support for repealing the death penalty, she said, “My mother forgave whoever it was, and I will vote in favor of this bill.”

Another factor contributing to the repeal law’s success, says Cushing, is the general political attitude of the state’s people. “New Hampshire has a really incredibly strong libertarian streak,” Cushing points out. “In a state where we don’t trust the government to collect taxes or plow snow, certainly a lot of people don’t want to give the government the power to have a public employee kill incapacitated prisoners.”

Cushing has faith that the remaining 29 states that still use capital punishment will eventually change their laws too.

“I know as a state legislator and as someone who’s traveled around, who works on a national level on criminal justice policy with other legislators, that the trend is rapidly [going] away from the death penalty,” Cushing says. “And I think that you’ll see that increase in the coming few years.”

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His Father Was Murdered. He Helped End the Death Penalty Anyway.

In May, the death penalty died in New England. A bipartisan legislative majority in New Hampshire, the final state in the region to enforce capital punishment, voted to override Gov. Chris Sununu’s (R) veto of a bill abolishing the death penalty. At the time of his veto, Sununu urged those legislators to consider the “victims of violent crime across this state.”

While it is often assumed that victims of violent crime tend to support capital punishment, one of New Hampshire’s most outspoken death penalty critics lost his own father to an act of violence.

“I wanted to be more than somebody who is the son of a murder victim,” says Renny Cushing, a Democrat who represents the Rockingham district and serves as the chair of the state’s House Criminal Justice and Public Safety Committee. In 1988, Cushing’s father was shot and killed before his mother’s eyes. Similar tragedy struck his family again in 2011 when his brother-in-law was shot and killed in Tennessee.

His father’s death taught him that nothing “prepares one to be the survivor of a homicide victim.” When a family friend approached Cushing in a grocery store to express the hope that the state would “fry the bastard,” Cushing says he didn’t initially know how to respond.

His Irish Catholic upbringing called for him to stand by a consistent life ethic, he explains, which promotes the sanctity of life “from womb to tomb.” This influenced his opposition to the death penalty before he lost his father. Yet that family friend had assumed that his father’s murder would cause Cushing to change his position.

“As I thought about that over a couple of weeks, I realized that if I had done that, if I changed my position on the death penalty because my father was murdered, that would, in some ways, kind of be a compounding of the loss,” he says. Not only would he have lost his father, but he would have lost the values he held dear.

Confronting such assumptions was the beginning of Cushing’s anti-death penalty advocacy. In 1998, he presented his first death penalty repeal bill to the state legislature.

Twenty one years later, the repeal effort long championed by Cushing and others has finally paid off.

Bipartisan support was a major factor. “Ending New Hampshire’s death penalty would not have been possible without significant Republican support,” says Hannah Cox, national manager of Conservatives Concerned About the Death Penalty. “Increasing numbers of GOP state lawmakers believe capital punishment does not align with their conservative values of limited government, fiscal responsibility, and valuing life.”

The Republican side also had its own figure who was able to speak from the victim’s point of view. Sen. Ruth Ward’s (R–Stoddard) father was taken from her family by violence when she was only seven years old. While announcing her support for repealing the death penalty, she said, “My mother forgave whoever it was, and I will vote in favor of this bill.”

Another factor contributing to the repeal law’s success, says Cushing, is the general political attitude of the state’s people. “New Hampshire has a really incredibly strong libertarian streak,” Cushing points out. “In a state where we don’t trust the government to collect taxes or plow snow, certainly a lot of people don’t want to give the government the power to have a public employee kill incapacitated prisoners.”

Cushing has faith that the remaining 29 states that still use capital punishment will eventually change their laws too.

“I know as a state legislator and as someone who’s traveled around, who works on a national level on criminal justice policy with other legislators, that the trend is rapidly [going] away from the death penalty,” Cushing says. “And I think that you’ll see that increase in the coming few years.”

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Do the Hatch Act’s Restrictions on Kellyanne Conway’s Commentary Violate Her First Amendment Rights?

Kellyanne Conway was a Republican pollster and TV pundit for decades before joining Donald Trump’s campaign in July 2016. Conway, who had initially supported Ted Cruz for the Republican nomination while criticizing Trump as “extreme” and “not a conservative,” quickly switched gears. But after Trump was elected and Conway moved from the campaign to the new administration as counselor to the president, she carried on pretty much as before, offering her opinions on election races and candidates for federal office in addition to defending Trump’s policy agenda. According to Special Counsel Henry Kerner, those partisan comments are not only unseemly but illegal, and Conway’s disregard for that fact is so frequent, blatant, and unrepentant that she should lose her job.

Kerner heads the Office of Special Counsel (not to be confused with the office of former Special Counsel Robert Mueller), an independent agency charged with enforcing the Hatch Act. Among other things, that law prohibits executive branch employees (except for the president and vice president) from using their “official authority or influence” for “the purpose of interfering with or affecting the result of an election.” The OSC’s recommendation that Trump fire Conway for repeatedly violating that rule will go nowhere, since Conway is doing exactly what Trump wants her to do. But Kerner’s case against Conway provides a good opportunity to reflect on the tension between the Hatch Act’s noble goals and the First Amendment right to freedom of speech.

“While the Hatch Act allows federal employees to express their views about candidates
and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes, including by trying to influence partisan elections,” Kerner observes in his first report on Conway, issued in March 2018. “In passing this law, Congress intended to promote public confidence in the Executive branch by ensuring the federal government is working for all Americans without regard to their political views.” Another way of putting it is that taxpayers have good cause to object when their money is used to pay executive branch officials who engage in partisan political activity on the job.

In Kerner’s view, that means Conway, while appearing on TV as the president’s spokeswoman, should show some discretion, which is not her strong suit. According to Kerner (a Trump appointee), it’s fine for Conway to explain and defend Trump’s policies, which is part of her job. It is even OK for her to explain why Trump favors one candidate over another in a particular election—Republican Roy Moore rather than Democrat Doug Jones in Alabama’s 2017 special Senate election, for example. But when she ventures beyond communicating Trump’s positions to offer her own views on people running for office (something she was long accustomed to doing in her prior occupations), she runs afoul of the Hatch Act.

White House Counsel Pat Cipillone, in his response to the report on Conway that Kerner issued yesterday, tries to minimize the extent to which Conway has done that. But it seems clear that Conway feels no compunction about crossing the line drawn by Kerner. Here is what she said about Doug Jones during a November 2017 appearance on Fox & Friends:

Folks, don’t be fooled. He’ll be a vote against tax cuts. He’s weak on crime, weak on borders. He’s strong on raising your taxes. He’s terrible for property owners.…And Doug Jones is a doctrinaire liberal, which is why he’s not saying anything and why the media are trying to boost him.

Conway likewise has not been shy about criticizing the numerous Democrats vying for their party’s 2020 presidential nomination. During a February 1, 2019, appearance on Fox & Friends, she questioned presidential contender Cory Booker’s accomplishments and suggested that if he were a Republican he would be deemed “sexist” for jumping into a race that already included several of his female Senate colleagues.

On the same show later that month, Conway remarked on the growing field of Democratic presidential contenders: “Great. Keep it coming. Just remember anything times zero still equals zero.” She added, “I'[ve] yet to see presidential timber. I just see a bunch of presidential wood chips.” Conway has used variations on those lines in several other TV appearances. She also has criticized Sen. Amy Klobuchar (D-Minn.) for mistreating her staff, Sen. Elizabeth Warren (D-Mass.) for “appropriating somebody else’s heritage and ethnicity,” and Sen. Kirsten Gillibrand (D-N.Y.) for making a big deal out of eating fried chicken (or something).

Toward the end of a March 13 appearance on The Ingraham Angle, Conway brought up Warren again: “Elizabeth Warren is running for President. She tried to appropriate somebody else’s ethnicity. She lied about that.” In another Fox News interview the following month, Conway commented (accurately) that “Bernie Sanders’ ideas are terrible for America.” She has repeatedly criticized former Vice President Joe Biden for invoking the 2017 white supremacist rally in Charlottesville, Virginia, when he launched his presidential campaign, saying that choice showed “he doesn’t want to be held to account for his record or lack thereof.”

There are more examples, but you get the idea. This is all standard stuff for a Trump-supporting TV talking head. But Kerner thinks the Hatch Act demands more circumspection, and Conway, who has been repeatedly warned about such partisan commentary, plainly does not care what Kerner thinks, although it is consistent with the way the Hatch Act has been applied to other officials. According to the OSC, for example, Dan Scavino, the current White House director of social media; Kathleen Sebelius, Barack Obama’s secretary of health and human services; and Julian Castro, Obama’s secretary of Housing and Urban Development, violated the Hatch Act by, respectively, urging Trump supporters to oust Rep. Justin Amash (R-Mich.), calling for Obama’s re-election, and endorsing Hillary Clinton. Those one-off violations look pretty minor next to Conway’s long list of transgressions.

In practical terms, the Hatch Act requires that Conway watch what she says when she goes on TV, where she is routinely identified as a special counselor to the president and  frequently speaks from the White House itself. That sacrifice of what would otherwise be her First Amendment right does not seem like an unreasonable burden to impose on someone who has chosen to take a high-profile job in the executive branch. It is analogous to speech restrictions a business might impose on an employee when he is acting as the company’s spokesman. In this case, Conway works for the American public, whose elected representatives have decided she should not use her position to elect or defeat political candidates. If Conway wants to say whatever pops into her head during TV interviews, she can always resume her career as a private-sector pundit.

While there are credible arguments that the Hatch Act sweeps too broadly to be consistent with the First Amendment, Cippilone does not argue that the law is unconstitutional. He just thinks it should not stop Conway from continuing to comment on political candidates, even when she is acting in her official capacity.

Conway herself takes the same position, arguing that she has not violated the Hatch Act. “Blah, blah, blah,” she said when a reporter described the findings of Kerner’s 2018 report. “If you’re trying to silence me through the Hatch Act, it’s not going to work.” But if Conway’s habitual criticism of Democratic candidates does not count as trying to influence an election, what would?

Conway is on firmer ground when she objects to the restrictions Kerner wants to impose on her personal Twitter account, which she created in 2012. Kerner argues that Conway may not talk about politics there either, because “most” of her tweets are “directly related to her role in the Administration.” The OSC says executive branch employees “may not engage in political activity on official social media accounts or on a personal social media account if they are using that account for official purposes or posting in their official capacity.”

Cipillone argues that Kerner does not have the legal authority to impose that rule, since neither the Hatch Act nor the regulations implementing it address social media. He also maintains that Kerner has mischaracterized Conway’s Twitter feed, noting that it includes personal tweets as well as political commentary and references to Trump administration initiatives.

“OSC’s overbroad and unsupported interpretation of the Hatch Act risks violating Ms. Conway’s First Amendment rights and chills the free speech of all government employees,” Cipillone writes. “Such a broad interpretation of the law would impermissibly prohibit Ms. Conway from continuing to make comments in her personal capacity through a personal media distribution channel she had established long before entering public service….Ms. Conway does not surrender her First Amendment right to comment on these same topics in her personal capacity, using her personal social media account, simply because she answered the call to serve in our federal government.”

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Do the Hatch Act’s Restrictions on Kellyanne Conway’s Commentary Violate Her First Amendment Rights?

Kellyanne Conway was a Republican pollster and TV pundit for decades before joining Donald Trump’s campaign in July 2016. Conway, who had initially supported Ted Cruz for the Republican nomination while criticizing Trump as “extreme” and “not a conservative,” quickly switched gears. But after Trump was elected and Conway moved from the campaign to the new administration as counselor to the president, she carried on pretty much as before, offering her opinions on election races and candidates for federal office in addition to defending Trump’s policy agenda. According to Special Counsel Henry Kerner, those partisan comments are not only unseemly but illegal, and Conway’s disregard for that fact is so frequent, blatant, and unrepentant that she should lose her job.

Kerner heads the Office of Special Counsel (not to be confused with the office of former Special Counsel Robert Mueller), an independent agency charged with enforcing the Hatch Act. Among other things, that law prohibits executive branch employees (except for the president and vice president) from using their “official authority or influence” for “the purpose of interfering with or affecting the result of an election.” The OSC’s recommendation that Trump fire Conway for repeatedly violating that rule will go nowhere, since Conway is doing exactly what Trump wants her to do. But Kerner’s case against Conway provides a good opportunity to reflect on the tension between the Hatch Act’s noble goals and the First Amendment right to freedom of speech.

“While the Hatch Act allows federal employees to express their views about candidates
and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes, including by trying to influence partisan elections,” Kerner observes in his first report on Conway, issued in March 2018. “In passing this law, Congress intended to promote public confidence in the Executive branch by ensuring the federal government is working for all Americans without regard to their political views.” Another way of putting it is that taxpayers have good cause to object when their money is used to pay executive branch officials who engage in partisan political activity on the job.

In Kerner’s view, that means Conway, while appearing on TV as the president’s spokeswoman, should show some discretion, which is not her strong suit. According to Kerner (a Trump appointee), it’s fine for Conway to explain and defend Trump’s policies, which is part of her job. It is even OK for her to explain why Trump favors one candidate over another in a particular election—Republican Roy Moore rather than Democrat Doug Jones in Alabama’s 2017 special Senate election, for example. But when she ventures beyond communicating Trump’s positions to offer her own views on people running for office (something she was long accustomed to doing in her prior occupations), she runs afoul of the Hatch Act.

White House Counsel Pat Cipillone, in his response to the report on Conway that Kerner issued yesterday, tries to minimize the extent to which Conway has done that. But it seems clear that Conway feels no compunction about crossing the line drawn by Kerner. Here is what she said about Doug Jones during a November 2017 appearance on Fox & Friends:

Folks, don’t be fooled. He’ll be a vote against tax cuts. He’s weak on crime, weak on borders. He’s strong on raising your taxes. He’s terrible for property owners.…And Doug Jones is a doctrinaire liberal, which is why he’s not saying anything and why the media are trying to boost him.

Conway likewise has not been shy about criticizing the numerous Democrats vying for their party’s 2020 presidential nomination. During a February 1, 2019, appearance on Fox & Friends, she questioned presidential contender Cory Booker’s accomplishments and suggested that if he were a Republican he would be deemed “sexist” for jumping into a race that already included several of his female Senate colleagues.

On the same show later that month, Conway remarked on the growing field of Democratic presidential contenders: “Great. Keep it coming. Just remember anything times zero still equals zero.” She added, “I'[ve] yet to see presidential timber. I just see a bunch of presidential wood chips.” Conway has used variations on those lines in several other TV appearances. She also has criticized Sen. Amy Klobuchar (D-Minn.) for mistreating her staff, Sen. Elizabeth Warren (D-Mass.) for “appropriating somebody else’s heritage and ethnicity,” and Sen. Kirsten Gillibrand (D-N.Y.) for making a big deal out of eating fried chicken (or something).

Toward the end of a March 13 appearance on The Ingraham Angle, Conway brought up Warren again: “Elizabeth Warren is running for President. She tried to appropriate somebody else’s ethnicity. She lied about that.” In another Fox News interview the following month, Conway commented (accurately) that “Bernie Sanders’ ideas are terrible for America.” She has repeatedly criticized former Vice President Joe Biden for invoking the 2017 white supremacist rally in Charlottesville, Virginia, when he launched his presidential campaign, saying that choice showed “he doesn’t want to be held to account for his record or lack thereof.”

There are more examples, but you get the idea. This is all standard stuff for a Trump-supporting TV talking head. But Kerner thinks the Hatch Act demands more circumspection, and Conway, who has been repeatedly warned about such partisan commentary, plainly does not care what Kerner thinks, although it is consistent with the way the Hatch Act has been applied to other officials. According to the OSC, for example, Dan Scavino, the current White House director of social media; Kathleen Sebelius, Barack Obama’s secretary of health and human services; and Julian Castro, Obama’s secretary of Housing and Urban Development, violated the Hatch Act by, respectively, urging Trump supporters to oust Rep. Justin Amash (R-Mich.), calling for Obama’s re-election, and endorsing Hillary Clinton. Those one-off violations look pretty minor next to Conway’s long list of transgressions.

In practical terms, the Hatch Act requires that Conway watch what she says when she goes on TV, where she is routinely identified as a special counselor to the president and  frequently speaks from the White House itself. That sacrifice of what would otherwise be her First Amendment right does not seem like an unreasonable burden to impose on someone who has chosen to take a high-profile job in the executive branch. It is analogous to speech restrictions a business might impose on an employee when he is acting as the company’s spokesman. In this case, Conway works for the American public, whose elected representatives have decided she should not use her position to elect or defeat political candidates. If Conway wants to say whatever pops into her head during TV interviews, she can always resume her career as a private-sector pundit.

While there are credible arguments that the Hatch Act sweeps too broadly to be consistent with the First Amendment, Cippilone does not argue that the law is unconstitutional. He just thinks it should not stop Conway from continuing to comment on political candidates, even when she is acting in her official capacity.

Conway herself takes the same position, arguing that she has not violated the Hatch Act. “Blah, blah, blah,” she said when a reporter described the findings of Kerner’s 2018 report. “If you’re trying to silence me through the Hatch Act, it’s not going to work.” But if Conway’s habitual criticism of Democratic candidates does not count as trying to influence an election, what would?

Conway is on firmer ground when she objects to the restrictions Kerner wants to impose on her personal Twitter account, which she created in 2012. Kerner argues that Conway may not talk about politics there either, because “most” of her tweets are “directly related to her role in the Administration.” The OSC says executive branch employees “may not engage in political activity on official social media accounts or on a personal social media account if they are using that account for official purposes or posting in their official capacity.”

Cipillone argues that Kerner does not have the legal authority to impose that rule, since neither the Hatch Act nor the regulations implementing it address social media. He also maintains that Kerner has mischaracterized Conway’s Twitter feed, noting that it includes personal tweets as well as political commentary and references to Trump administration initiatives.

“OSC’s overbroad and unsupported interpretation of the Hatch Act risks violating Ms. Conway’s First Amendment rights and chills the free speech of all government employees,” Cipillone writes. “Such a broad interpretation of the law would impermissibly prohibit Ms. Conway from continuing to make comments in her personal capacity through a personal media distribution channel she had established long before entering public service….Ms. Conway does not surrender her First Amendment right to comment on these same topics in her personal capacity, using her personal social media account, simply because she answered the call to serve in our federal government.”

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Last week, Texas put an end to one of the state’s most bafflingly counterproductive policies: suspending residents’ occupational licenses if they defaulted on their student loans. Not only did these suspensions wreak havoc on Texans’ finances and livelihoods, but they also made it fiendishly difficult for people to actually repay what they owed. In 2017 alone, state agencies threatened the licenses of more than 4,200 professionals—including cosmetologists, nurses, and teachers—simply for unpaid student debt. Over at Forbes.com, IJ’s Nick Sibilla has more.

  • In 2017, the feds adopt policy that essentially bans unaccompanied minors in immigration detention from obtaining abortions. D.C. Circuit: Can’t do that. Dissent: The case is moot, and the class should not have been certified as is because, among other things, it almost certainly includes individuals who think abortion is murder.
  • Consignment business that sells kids’ clothing relies on parents to help set up the sales. In exchange, they get first pick of the merchandise. Labor Department sends a letter informing business that the parent “volunteers,” who work one or two days a year, are actually employees. So start paying them or else. D.C. Circuit: Indeed. The volunteers look enough like employees to us. Concurrence: Probably should’ve called ’em independent contractors.
  • According to legitimate locksmiths, “scam” locksmiths are tricking search engines into making the scammers appear more geographically available than they actually are. But that doesn’t mean the legitimate locksmiths have a claim against the search engines, holds the D.C. Circuit. Congress has made clear that websites are free to publish all the information from third parties that they want.
  • Allegation: NYC building inspector has it out for Asians in the construction industry, so much so that he visits job sites and issues violations on his own time, while off duty. Second Circuit: Which may very well violate the Equal Protection Clause. It doesn’t violate the Due Process Clause, though, because the official’s harassment hasn’t completely driven the plaintiff out of business.
  • Without warning or provocation, worker at Amazon shipping facility punches coworker in the face repeatedly. He tells Chesterfield County, Va. police that he “does not like homosexuals, so he punched” the victim. Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.
  • Allegation: Maryland corrections officer is falsely accused of sexually harassing female coworker. In the course of the investigation, the officer reveals that he is gay and HIV positive. The sexual harassment complaint is not sustained, but he’s fired anyway. Sexual orientation discrimination? Fourth Circuit: The state hasn’t waived sovereign immunity, so his state law claim can’t go in federal court.
  • Uncounseled plaintiff sues the University of Texas for gaslighting him—that is, per dictionary.com, manipulating him by psychological means into questioning his own sanity. Skipping over whether gaslighting is indeed a tort, the Fifth Circuit affirms dismissal. The state hasn’t waived sovereign immunity.
  • Timothy Ivory Carpenter—winner of last year’s Supreme Court ruling on Fourth Amendment protections for cell phone location data—will remain in prison. So holds the Sixth Circuit, on remand from SCOTUS. Even though officers violated the Fourth Amendment with their warrantless search of Carpenter’s cell phone location data, they acted in good faith. So Carpenter’s conviction stands. (Memorious Court-watchers will recall that Justice Alito forecast this result in the closing moments of oral argument.)
  • Michigan Department of Health and Human Services allegedly collects blood samples from newborns without parents’ consent, tests them, then transfers them to a nonprofit corporation, “where they are stored for future use by the state.” Parents sue on behalf of themselves and their children. Sixth Circuit: Most of the claims are nonstarters, but Michigan’s ongoing storage of the blood samples may violate the kids’ Fourth Amendment rights and the parents’ Fourteenth Amendment right to direct their offspring’s medical care.
  • Allegation: Drunk driver is taken to Oakland County, Mich. jail, where male guards subject her to a vicious strip search. Guards: But the hood we put on her to stop her from spitting meant she couldn’t tell us apart. So we should get summary judgment because “she cannot prove . . . who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc.” Sixth Circuit: That is absolutely not how this works.
  • Illinois corrections officials institute a “brunch” program, a bougie euphemism for serving prisoners two meals a day instead of three. Prisoner sues, claiming that the program gave him too few calories. Which, says the Seventh Circuit, the undisputed record rebuts. The program’s designer submitted an affidavit that the two-meal brunch menu supplied the same number of daily calories as the regular three-meal menu.
  • “If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages?” Despite the lede, the Eighth Circuit immediately answers “no.” Specifically, a St. Paul, Minn. police officer who allegedly fabricated a sex trafficking conspiracy cannot be liable under Bivens. (No qualified immunity for the officer, though.)
  • If a police officer questioned you and then left to investigate a building, you might think you were free to drive away. If that police officer then followed you on the highway for 19 miles, you might turn on your hazards and pull over. And if you feared for your life because you’re black and the officer knows you have a concealed weapons permit, you might put your hands outside the driver’s side window. Eighth Circuit: While that behavior is entirely consistent with wanting to avoid being shot, it’s also “unusual and may be indicative of guilty conduct.” Qualified immunity for the officer, who ordered plaintiff out of his car at gunpoint. Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.
  • Acting on an anonymous tip, ICE agents obtain a warrant for employment-related documents at a California factory. In the course of executing this warrant, 100 armed agents descend on the factory, block all exits, prohibit workers from using their phones, and ultimately arrest 130 undocumented workers (which, in fact, was their plan all along). A Fourth Amendment violation? Ninth Circuit: You can’t use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.
  • Absent-minded bank robber inadvertently places closed pocketknife on bank counter while providing teller with money bag. (The record is silent on whether the bag sported a dollar sign.) Gov’t: That’s “armed bank robbery”! Ninth Circuit: Hardly. Armed bank robbery requires “active employment” of a weapon, and there was no active employment here. The district court thus plainly erred in accepting the robber’s guilty plea.
  • Saudi citizen sentenced by Colorado court to eight years to life (for imprisoning, sexually assaulting teenage housekeeper from Indonesia) seeks to serve the remainder of his sentence in Saudi Arabia. Colorado officials deny the request. Tenth Circuit: There is no constitutional right to a hearing before officials make such a decision.

Forfeiture doesn’t help police fight crime, but police do use forfeiture to raise revenue—so finds a new IJ study. These findings may not surprise you, dear reader, but proponents frequently tout forfeiture as a key crime-fighting tool while denying critics’ charge that forfeiture is used to police for profit. That’s why IJ teamed up with Seattle University’s Dr. Brian D. Kelly to test these opposing views of forfeiture. The resulting study, titled Fighting Crime or Raising Revenue?, combines local crime, drug use, and economic data with more than a decade’s worth of data from the nation’s largest forfeiture program. It finds that more forfeiture proceeds do not help police solve more crimes or reduce drug use, but police do ramp up forfeiture activity when local economies suffer. Read the report.

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Last week, Texas put an end to one of the state’s most bafflingly counterproductive policies: suspending residents’ occupational licenses if they defaulted on their student loans. Not only did these suspensions wreak havoc on Texans’ finances and livelihoods, but they also made it fiendishly difficult for people to actually repay what they owed. In 2017 alone, state agencies threatened the licenses of more than 4,200 professionals—including cosmetologists, nurses, and teachers—simply for unpaid student debt. Over at Forbes.com, IJ’s Nick Sibilla has more.

  • In 2017, the feds adopt policy that essentially bans unaccompanied minors in immigration detention from obtaining abortions. D.C. Circuit: Can’t do that. Dissent: The case is moot, and the class should not have been certified as is because, among other things, it almost certainly includes individuals who think abortion is murder.
  • Consignment business that sells kids’ clothing relies on parents to help set up the sales. In exchange, they get first pick of the merchandise. Labor Department sends a letter informing business that the parent “volunteers,” who work one or two days a year, are actually employees. So start paying them or else. D.C. Circuit: Indeed. The volunteers look enough like employees to us. Concurrence: Probably should’ve called ’em independent contractors.
  • According to legitimate locksmiths, “scam” locksmiths are tricking search engines into making the scammers appear more geographically available than they actually are. But that doesn’t mean the legitimate locksmiths have a claim against the search engines, holds the D.C. Circuit. Congress has made clear that websites are free to publish all the information from third parties that they want.
  • Allegation: NYC building inspector has it out for Asians in the construction industry, so much so that he visits job sites and issues violations on his own time, while off duty. Second Circuit: Which may very well violate the Equal Protection Clause. It doesn’t violate the Due Process Clause, though, because the official’s harassment hasn’t completely driven the plaintiff out of business.
  • Without warning or provocation, worker at Amazon shipping facility punches coworker in the face repeatedly. He tells Chesterfield County, Va. police that he “does not like homosexuals, so he punched” the victim. Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.
  • Allegation: Maryland corrections officer is falsely accused of sexually harassing female coworker. In the course of the investigation, the officer reveals that he is gay and HIV positive. The sexual harassment complaint is not sustained, but he’s fired anyway. Sexual orientation discrimination? Fourth Circuit: The state hasn’t waived sovereign immunity, so his state law claim can’t go in federal court.
  • Uncounseled plaintiff sues the University of Texas for gaslighting him—that is, per dictionary.com, manipulating him by psychological means into questioning his own sanity. Skipping over whether gaslighting is indeed a tort, the Fifth Circuit affirms dismissal. The state hasn’t waived sovereign immunity.
  • Timothy Ivory Carpenter—winner of last year’s Supreme Court ruling on Fourth Amendment protections for cell phone location data—will remain in prison. So holds the Sixth Circuit, on remand from SCOTUS. Even though officers violated the Fourth Amendment with their warrantless search of Carpenter’s cell phone location data, they acted in good faith. So Carpenter’s conviction stands. (Memorious Court-watchers will recall that Justice Alito forecast this result in the closing moments of oral argument.)
  • Michigan Department of Health and Human Services allegedly collects blood samples from newborns without parents’ consent, tests them, then transfers them to a nonprofit corporation, “where they are stored for future use by the state.” Parents sue on behalf of themselves and their children. Sixth Circuit: Most of the claims are nonstarters, but Michigan’s ongoing storage of the blood samples may violate the kids’ Fourth Amendment rights and the parents’ Fourteenth Amendment right to direct their offspring’s medical care.
  • Allegation: Drunk driver is taken to Oakland County, Mich. jail, where male guards subject her to a vicious strip search. Guards: But the hood we put on her to stop her from spitting meant she couldn’t tell us apart. So we should get summary judgment because “she cannot prove . . . who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc.” Sixth Circuit: That is absolutely not how this works.
  • Illinois corrections officials institute a “brunch” program, a bougie euphemism for serving prisoners two meals a day instead of three. Prisoner sues, claiming that the program gave him too few calories. Which, says the Seventh Circuit, the undisputed record rebuts. The program’s designer submitted an affidavit that the two-meal brunch menu supplied the same number of daily calories as the regular three-meal menu.
  • “If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages?” Despite the lede, the Eighth Circuit immediately answers “no.” Specifically, a St. Paul, Minn. police officer who allegedly fabricated a sex trafficking conspiracy cannot be liable under Bivens. (No qualified immunity for the officer, though.)
  • If a police officer questioned you and then left to investigate a building, you might think you were free to drive away. If that police officer then followed you on the highway for 19 miles, you might turn on your hazards and pull over. And if you feared for your life because you’re black and the officer knows you have a concealed weapons permit, you might put your hands outside the driver’s side window. Eighth Circuit: While that behavior is entirely consistent with wanting to avoid being shot, it’s also “unusual and may be indicative of guilty conduct.” Qualified immunity for the officer, who ordered plaintiff out of his car at gunpoint. Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.
  • Acting on an anonymous tip, ICE agents obtain a warrant for employment-related documents at a California factory. In the course of executing this warrant, 100 armed agents descend on the factory, block all exits, prohibit workers from using their phones, and ultimately arrest 130 undocumented workers (which, in fact, was their plan all along). A Fourth Amendment violation? Ninth Circuit: You can’t use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.
  • Absent-minded bank robber inadvertently places closed pocketknife on bank counter while providing teller with money bag. (The record is silent on whether the bag sported a dollar sign.) Gov’t: That’s “armed bank robbery”! Ninth Circuit: Hardly. Armed bank robbery requires “active employment” of a weapon, and there was no active employment here. The district court thus plainly erred in accepting the robber’s guilty plea.
  • Saudi citizen sentenced by Colorado court to eight years to life (for imprisoning, sexually assaulting teenage housekeeper from Indonesia) seeks to serve the remainder of his sentence in Saudi Arabia. Colorado officials deny the request. Tenth Circuit: There is no constitutional right to a hearing before officials make such a decision.

Forfeiture doesn’t help police fight crime, but police do use forfeiture to raise revenue—so finds a new IJ study. These findings may not surprise you, dear reader, but proponents frequently tout forfeiture as a key crime-fighting tool while denying critics’ charge that forfeiture is used to police for profit. That’s why IJ teamed up with Seattle University’s Dr. Brian D. Kelly to test these opposing views of forfeiture. The resulting study, titled Fighting Crime or Raising Revenue?, combines local crime, drug use, and economic data with more than a decade’s worth of data from the nation’s largest forfeiture program. It finds that more forfeiture proceeds do not help police solve more crimes or reduce drug use, but police do ramp up forfeiture activity when local economies suffer. Read the report.

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City on a Hill Is Boston’s Answer to The Wire

City on a Hill. Showtime. Sunday, June 16, 9 p.m.

The most wince-inducing expression in American politics is the “city on a hill” metaphor from Jesus’ Sermon on the Mount. Jesus was encouraging his followers to evangelize (“a city on a hill cannot be hidden”). American politicians from John F. Kennedy to Ted Cruz have used it to imply the Big Guy was a believer in American exceptionalism, which seems a stretch—the United States didn’t come along for another 2,000 years or so—but is nothing compared to the rhetorical gymnastics of the first pol to swipe the phrase, Massachusetts Gov. John Winthrop.

Winthrop used it in a 1650 sermon to demand conformity to Puritan religious doctrine. That included, infamously, putting “witches” and other non-Christians to death, exiling Puritan dissidents and applauding God for sending smallpox to clear out nettlesome local Indians. Call Winthrop undemocratic if you will; he’d revel in the accusation. “A democracy is, amongst civil nations, accounted the meanest and worst of all forms of government,” he wrote.

Showtime’s new cops-and-robbers drama City on a Hill is definitely using the title in the Winthropian sense. Set in Boston during the city’s corrupt, crime-ridden nadir in the 1990s, City on a Hill is the sort of show where cops blackmail not only suspects but one another; where a thoughtful husband is one who doesn’t pass along his herpes infection to his wife; where even mourners at funerals have to be bribed to attend; where the mom of a bullied schoolgirl doesn’t call either the cops or the principal, just advises her daughter: “You have my permission—break Johnny’s dick!”

Partly concocted from leftover bits of the previous Boston crime movies made by executive producers Ben Affleck and Matt Damon (particularly Affleck’s 2010 production The Town), and partly from screenwriter Chuck MacLean’s fictionalized account of the political cleanup known locally as the Boston Miracle, City on a Hill could reasonably be mistaken for a Bean Town version of The Wire.

Like The Wire, it explores the nexus between crime and politics, and it features the same character array of the clever and the clueless, the ambitious and the burned-out, as a criminal justice task force creakily rouses itself to pursue a nimble criminal syndicate. The resemblance will only grow if City on a Hill is a ratings success, gets brought back for a second season, and—as rumor has it—Affleck and the others turn their characters’ attention away from bang-bang crime to public-works corruption and other more purely political matters.

But for now, City on a Hill focuses on an unlikely alliance of corner-cutting cops and idealist prosecutors hunting an elusive and murderous gang of armed robbers who target cash-delivery armored cars.

Kevin Bacon plays Jackie Rohr, a coke-snorting, informant-banging, wise-assing FBI agent who’s quick with his fists and slow to see any need to clean up Boston law enforcement. “What used to make this city great,” broods Rohr, “was that it was run by bad men who understood that they were bad…Now you can’t even call a guy a faggot.” Once admired for single-handedly taking down an entire Mafia family, Rohr is now mostly known for his thorough dissolution.

The reform efforts of which Rohr is contemptuous include the appointment of a black assistant D.A. who served on a police-reform commission. Decourcey Ward (Aldis Hodge, WGN’s escaped-slave drama Underground) is an outsider from Brooklyn who’s derided by both other cops and prosecutors as well as black community activists.

Despite his utter lack of support from anyone on any side, Ward refuses to quit for a corporate sinecure at the firm where his wife works. “I like what my job should be,” he insists, to which his wife retorts: “That’s not the way things are.”

When the robbers kill the entire crew of an armored car in Charlestown, the deeply alienated Irish neighborhood where gangsters like Whitey Bulger operate with police protection, it presents Rohr and Ward with a delicious target of opportunity. Busting the gang would be a high-profile case that would also show up the ineptitude of the local cops. For Rohr, it would be a big score that would allow him to coast into lucrative retirement in the private security industry; for Ward, a chance to lash out at a system he despises, particularly the boss who’s keeping him on a short leash: “Fuck him, fuck all of ’em, fuck anyone else who gets in my way.”

The action in City on a Hill—both the shoot-em-ups and the political intrigue—is staged competently enough, but it’s nothing you haven’t seen before in half a dozen or more premium cable shows (including, to be sure, The Wire). What makes City on a Hill go is the performances, especially those of Bacon and Hodge.

Hodge has a reserved elegance as the sort of prep-school-groomed black professional that establishment liberals like to say “cleans up real well.” But the smooth exterior conceals a bubbling-up rage that can explode at any moment. And Bacon’s portrayal of the borderline-scummy Jackie Rohr is simply riveting, one of those things you can’t take your eyes away from as he lies, cheats, steals, philanders, and yet somehow still summons enough all-but-forgotten professional skill to get a difficult job done.

Bacon has spent much of his career in quirkily memorable supporting roles that have left viewers thinking of him as an eccentric player of eccentric characters, the poor-man’s-John Travolta of Footloose or the desert rat battling giant earthworms in Tremors; or as the punch line of a hipper-than-thou joke.

But in City on a Hill and his last television project—The Following, in which he played a deeply damaged FBI agent running on rage alone as he pursues a cult serial killer—he’s been bigger than life, an eyeball magnet who cannot be contained. Maybe it’s time he’s recognized as one of the leading actors of his generation.

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City on a Hill Is Boston’s Answer to The Wire

City on a Hill. Showtime. Sunday, June 16, 9 p.m.

The most wince-inducing expression in American politics is the “city on a hill” metaphor from Jesus’ Sermon on the Mount. Jesus was encouraging his followers to evangelize (“a city on a hill cannot be hidden”). American politicians from John F. Kennedy to Ted Cruz have used it to imply the Big Guy was a believer in American exceptionalism, which seems a stretch—the United States didn’t come along for another 2,000 years or so—but is nothing compared to the rhetorical gymnastics of the first pol to swipe the phrase, Massachusetts Gov. John Winthrop.

Winthrop used it in a 1650 sermon to demand conformity to Puritan religious doctrine. That included, infamously, putting “witches” and other non-Christians to death, exiling Puritan dissidents and applauding God for sending smallpox to clear out nettlesome local Indians. Call Winthrop undemocratic if you will; he’d revel in the accusation. “A democracy is, amongst civil nations, accounted the meanest and worst of all forms of government,” he wrote.

Showtime’s new cops-and-robbers drama City on a Hill is definitely using the title in the Winthropian sense. Set in Boston during the city’s corrupt, crime-ridden nadir in the 1990s, City on a Hill is the sort of show where cops blackmail not only suspects but one another; where a thoughtful husband is one who doesn’t pass along his herpes infection to his wife; where even mourners at funerals have to be bribed to attend; where the mom of a bullied schoolgirl doesn’t call either the cops or the principal, just advises her daughter: “You have my permission—break Johnny’s dick!”

Partly concocted from leftover bits of the previous Boston crime movies made by executive producers Ben Affleck and Matt Damon (particularly Affleck’s 2010 production The Town), and partly from screenwriter Chuck MacLean’s fictionalized account of the political cleanup known locally as the Boston Miracle, City on a Hill could reasonably be mistaken for a Bean Town version of The Wire.

Like The Wire, it explores the nexus between crime and politics, and it features the same character array of the clever and the clueless, the ambitious and the burned-out, as a criminal justice task force creakily rouses itself to pursue a nimble criminal syndicate. The resemblance will only grow if City on a Hill is a ratings success, gets brought back for a second season, and—as rumor has it—Affleck and the others turn their characters’ attention away from bang-bang crime to public-works corruption and other more purely political matters.

But for now, City on a Hill focuses on an unlikely alliance of corner-cutting cops and idealist prosecutors hunting an elusive and murderous gang of armed robbers who target cash-delivery armored cars.

Kevin Bacon plays Jackie Rohr, a coke-snorting, informant-banging, wise-assing FBI agent who’s quick with his fists and slow to see any need to clean up Boston law enforcement. “What used to make this city great,” broods Rohr, “was that it was run by bad men who understood that they were bad…Now you can’t even call a guy a faggot.” Once admired for single-handedly taking down an entire Mafia family, Rohr is now mostly known for his thorough dissolution.

The reform efforts of which Rohr is contemptuous include the appointment of a black assistant D.A. who served on a police-reform commission. Decourcey Ward (Aldis Hodge, WGN’s escaped-slave drama Underground) is an outsider from Brooklyn who’s derided by both other cops and prosecutors as well as black community activists.

Despite his utter lack of support from anyone on any side, Ward refuses to quit for a corporate sinecure at the firm where his wife works. “I like what my job should be,” he insists, to which his wife retorts: “That’s not the way things are.”

When the robbers kill the entire crew of an armored car in Charlestown, the deeply alienated Irish neighborhood where gangsters like Whitey Bulger operate with police protection, it presents Rohr and Ward with a delicious target of opportunity. Busting the gang would be a high-profile case that would also show up the ineptitude of the local cops. For Rohr, it would be a big score that would allow him to coast into lucrative retirement in the private security industry; for Ward, a chance to lash out at a system he despises, particularly the boss who’s keeping him on a short leash: “Fuck him, fuck all of ’em, fuck anyone else who gets in my way.”

The action in City on a Hill—both the shoot-em-ups and the political intrigue—is staged competently enough, but it’s nothing you haven’t seen before in half a dozen or more premium cable shows (including, to be sure, The Wire). What makes City on a Hill go is the performances, especially those of Bacon and Hodge.

Hodge has a reserved elegance as the sort of prep-school-groomed black professional that establishment liberals like to say “cleans up real well.” But the smooth exterior conceals a bubbling-up rage that can explode at any moment. And Bacon’s portrayal of the borderline-scummy Jackie Rohr is simply riveting, one of those things you can’t take your eyes away from as he lies, cheats, steals, philanders, and yet somehow still summons enough all-but-forgotten professional skill to get a difficult job done.

Bacon has spent much of his career in quirkily memorable supporting roles that have left viewers thinking of him as an eccentric player of eccentric characters, the poor-man’s-John Travolta of Footloose or the desert rat battling giant earthworms in Tremors; or as the punch line of a hipper-than-thou joke.

But in City on a Hill and his last television project—The Following, in which he played a deeply damaged FBI agent running on rage alone as he pursues a cult serial killer—he’s been bigger than life, an eyeball magnet who cannot be contained. Maybe it’s time he’s recognized as one of the leading actors of his generation.

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Democrats Are Fighting Over Socialism, and the Socialists Are Winning

On Wednesday, Bernie Sanders, the independent senator and a candidate for the Democratic presidential nomination, delivered a major speech on socialism. Titled, “How Democratic Socialism Is the Only Way to Defeat Oligarchy and Authoritarianism,” the speech sought to give us Sanders’ own definition of socialism. But the address left enough lingering questions that it might better be understood as a declaration simply that Sanders is a socialist, whatever that is.

Socialism—what it is, whether it’s any good, and who counts as a socialist—has become a major divide in the Democratic primary and is likely to play a role in the 2020 general election, no matter who is on the ticket.

Former Colorado Gov. John Hickenlooper (D), one of the many low-polling extras in the cast-of-thousands production that is the Democrats’ 2020 primary, recently told a group of California Democrats that “socialism is not the answer,” and has said he wants to differentiate his candidacy by opposing the idea.  

In the run-up to the socialism speech, as Edward Isaac-Dovere reported in The Atlantic, some of Sanders’ primary rivals offered careful non-responses, criticism, and reactions that are revealing in other ways: Sen. Michael Bennet (D–Colo.), another low-ranked primary candidate, heard the title of the speech and said, “I don’t think the American people even know what that means.” And it’s not just back-benchers rolling their eyes. When Sen. Elizabeth Warren (D–Mass.), arguably the candidate closest to Sanders in terms of policy outlook, heard the name of the speech, she laughed.

Looked at one way, Sanders is losing the battle over socialism. His rivals laugh at him, and the leading contender for the primary, according to the (yes, still very early) polls is former Vice President Joe Biden, who has branded himself a moderate with an insider’s track record, in direct contrast to Sanders’ ornery outsider approach to politics. At the beginning of the year, a majority of Democratic and Democratic-leaning voters told Gallup they wanted a party that was more moderate, not more liberal. That hardly sounds like a recipe for a socialist takeover.

Yet Sanders has remained near the top of the polls all year, even in a primary field that looks like a Where’s Waldo? splash page. Millennials have embraced socialism in record numbers, and socialism, once an insult even within the Democratic party, is no longer a dirty word, at least among the party’s rising stars and most engaged activists. That’s largely thanks to Sanders’ scruffy insistence on using the word. (For someone who finds capitalism so distasteful, he’s pretty good at marketing.) Candidates like Hickenlooper who have directly attacked socialism have faced strong internal resistance; he was loudly booed at the California Democratic Convention, and he and Bennett are far behind in the race.

Most importantly, the Democratic party has shifted its policy priorities. Sanders’ agenda is not quite the Democratic party’s agenda, but Democrats are far closer to Sanders’ democratic socialist platform than they were a decade or two ago. The Democratic party may not be branding itself as the party of socialism, and compared with left-leaning parties around the world, its socialist tendencies are less pronounced, but it is certainly closer than it has been in decades. The Democratic party isn’t really arguing about what direction to go, just precisely how far.

Beyond the Democratic party, an inclination toward socialism, or something like it, has taken hold: The generalized mood of American voters is more liberal than at any time in the last 68 years. Left-leaning economic theories have gained new prominence in the wake of the financial crisis.

Even Republicans seem to have developed a soft spot for what are essentially socialist ideas; President Trump campaigned on the promise not to touch Medicare or Social Security, America’s largest socialized benefit programs. These entitlements remain vastly popular with seniors, a group that otherwise leans to the right. Over the last year, multiple polls have found a majority of Republicans support for Medicare for All, the most prominent of Sanders’ policy goals. 

Trump may be running (somewhat incoherently) against the word “socialism” but it seems clear that a non-trivial portion of his supporters favors at least some components of the democratic socialist agenda. Many voters, as well as at least a few politicians, remain confused about what Medicare for All means, but these surveys nonetheless suggest that the American electorate has socialist tendencies.

Which may explain why Sanders’ speech was mostly a recitation of familiar talking points about the New Deal, socialism’s various economic guarantees, the problems with Donald Trump, and the evils of “unfettered capitalism”—which mostly seems to be an objection to the existence of individuals who are very rich.

The democratic socialism Sanders is promoting has an agenda, of sorts, but deep down, it’s less a platform than a tendency, a manner of understanding politics and economics that is light on particulars and heavy on easy assumptions about the way the world should be and what it should offer, namely a litany of government benefits, regardless of the political and fiscal hurdles involved. It’s an airy and reckless populist fantasy of broad social and economic transformation—an ideology, yes, but also an attitude, one that will take whatever support it can get. And regardless of how Sanders himself fares in this race, it is likely to inform our politics for years to come.

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