Principle Should Trump Spite


There’s no doubt that Donald Trump is deeply ignorant about affairs of government. He lacks experience and, by his own admission, is not a reader. But the media may be doing the public a disservice by rubbing the President-elect’s face in it. Trump was apparently as shocked by his win as anyone. Now that the presidency rests upon his shoulders, he undoubtedly hopes to do a good job and has already hinted at his own sense of inadequacy. The more he is shamed for his ignorance and need for guidance, the less inclined he may be to ask for help. That would be bad for the country.

The press would do well to keep two things in mind:

(1) When Trump attempts to distance himself from some of his most ill-advised promises (e.g., jailing his opponent, banning all Muslims, erecting a deportation force to expel 11 million immigrants), repeatedly calling him out about it may make it harder for him to moderate his positions. It may give him less latitude with his most illiberal and reactionary supporters.


(2) When Trump does other sensible things, like reach across the aisle for help, the press would do well to speak of it in a respectful manner. This will give Trump room to ask for help without having to worry unduly about saving face.

Trump’s deficiencies are well-known. But we need the best Trump we can get. As much as will be possible for him, we need him to do a competent, scandal-free job. That is in the interests of all Americans.

Donald Trump 60 Minutes Overtime Interview


We have a free press whose members are bound only by their editorial judgment. While they must also inevitably consider the dynamics of the news market and cater to consumer preferences, they would be doing a great public service by not hindering some of the more judicious and sensible impulses of the President-elect.


Democrats may find this advice particularly galling after several years of fierce and acrimonious opposition to the Obama presidency among Republican leaders (but see also here). Nonetheless, our system requires leaders who are capable of acting on principle and, where necessary, suppressing their more natural instincts. Opposition grounded in the differing values of the two parties is to be expected. That is what it means to be the people’s representatives. Opposition grounded in vengefulness and spite is a failure of leadership. Leaders help us to channel our impulses in productive ways.


Principle Over Idealization

I wrote recently about the need to avoid the “twin temptations of idealization and fear—naïve idealization of groups with whom we readily sympathize (e.g., immigrants, ethnic/religious minorities, police) and a sensationalized fear of those with whom we don’t (e.g., immigrants, ethnic/religious minorities, police).”

Constance Grady penned a piece in Vox a few days ago highlighting an example of the idealization of women. In that piece, Grady criticizes remarks by comedian Louis C.K., which can be seen in the video below:

Louis C.K. is supporting Hillary Clinton in next week’s presidential election, and it’s not just because she’s a woman. It’s because she’s a mom.

“A mother’s just got it,” C.K. told Conan O’Brien on Conan Tuesday night. “She feeds you and teaches you, she protects you, she takes care of shit.”

Mothers, C.K. says, make better presidents than fathers. We’ve had fathers as presidents for the past 240 years, but “a great father can give a kid 40 percent of his needs, tops. Tops out at 40 percent. Any mother, just a shitty mother, a not-even-trying mother? Two hundred percent.”

While Grady concedes that C.K. is well-intentioned, she finds his idealization of women ultimately misguided:

he’s playing into a very old and unpleasant narrative that’s become weirdly popular among liberal men this election cycle: the idea that we need women in government because they are intrinsically morally superior to men. Women should be represented in our government, this story goes, not because they are people, but because they are better than people: They are angelic; they are virtuous; they are pure.

Back in September, Quartz’s Annalisa Merelli interviewed Marxist philosopher Slavoj Žižek about his new book Refugees, Terror and other Troubles with the Neighbors. Merelli tells us that Žižek

looks at the current migrant and refugee crises in Europe, and identifies what he sees as its uncomfortable aspects: the contrasts between Western values and those of the thousands arriving in Europe from Africa and the Middle East; the threat of terrorism by migrants; and the inevitable tensions generated by the competition for jobs and resources.

“The left tries to ignore the problem—for example they try to underreport problems with immigrants,” Žižek told Quartz. “My book is simply a great, desperate call for not keeping silent about this.”

Sensationalized fear of immigrants or the recent flow of refugees is a real problem that must be confronted and corrected, but so too:

is a dangerous tendency to mythologize refugees as especially noble because of their suffering: “I don’t like this romantic false idea that suffering purifies you, that it makes you a noble person. It does not!” On the contrary, he says, “it makes you do anything to survive.”

This doesn’t mean Europe should be less committed to taking care of desperate people seeking shelter, he says—but Europeans should be more realistic about the kind of effort it takes to do so. “It’s easy to be humanitarian if your principle is that the others whom we are helping are good warm guys, friendly,” he says. “What if they are not? My point is that even in that case we should be helping them.”

How we advocate matters. As an African-American and a military veteran, I am often put off by attempts to advocate for African-Americans and military service members in ways that posit facile narratives about the superior virtue of these two groups. We are people. We deserve respect because we are people. We need not be especially great to be valued as people. Spinning grandiose narratives about groups to elevate them is sloppy thinking, disingenuous as a form of public discourse, and patronizing to the group in question. We don’t need to idealize a disparaged or disadvantaged group in order to advocate for its equal treatment, political representation, or aid in a time of crisis.

It can also prove counterproductive. What happens when the narrative is belied by daily experience? When we find that African-Americans, military service members, women, immigrants, etc. are just as frail and error-prone as the rest of us? Specifically, in the case of refugees, what if we find that there are genuine differences, leading to social friction and discomfort? Do we then lose the conviction that they are to be valued as people? Do we turn our backs? The advocacy must be grounded in principle rather than unrealistic appraisals of the superior worth of the relevant group.

Likewise, C.K.’s advocacy on behalf of women in a culture where women have long been regarded as somehow less fit for leadership in general and public office in particular is laudable. However, the rights of women should be safeguarded because they are people. The contributions of women are valuable and speak for themselves. We need not substitute one narrow prejudice—that men are better—with its opposite. How hard is it to say women are equal–neither worse or better, but equal?

As Grady concluded: “We should not have a woman as president because women are pure and virtuous and angelic. We should have a woman as president because women are people who make up more than half of the US population, and because women deserve to see themselves represented in our representative government.” That is a compelling argument whether you like the particular woman on the ballot this year or not.


Dogma, Idealization, and Fear

In a new and timely afterward to his 2001 book The Reckless Mind: Intellectuals in Politics, Mark Lilla offers a compelling contrast between ideology (that human propensity to build mental models about the world) and dogma (that human propensity to cultivate relatively simple beliefs which foreclose the necessity for further inquiry). This distinction may be helpful to contemplate as U.S. elections approach. Lilla informs us that “Ideologies inspire lies… a false pretense to speaking truth about the world…”


Ideologies can be wrong, of course—and with disastrous historical consequences. But dogmas are different. They are immune to questioning and correction: “Dogmas inspire instead ignorance and indifference. They convince people that a single idea or principle is sacred and all they need to know in order to act in the world… [which] kills curiosity and intellectual ambition.”

Lilla argues that contemporary political discourse is beset by an understandable fatigue and cynicism about system-building, and we have perhaps lapsed into an anti-intellectual dogmatism.

An ideology gives people the illusion of understanding more than they do. Today, we seem to have renounced trying to understand as much as we can. We suffer from a new kind of hubris unlike that of the old master thinkers. Our hubris is to think that we no longer have to think hard or pay attention or look for connections… The end of the cold war destroyed whatever confidence we have in the great modern ideologies still remained in the West. But it also left us incurious and self-absorbed. We have abdicated… [W]e need reminding… that dealing with people outside our enchanted gardens requires more than toleration and concern for human rights. Reminding that we need a much deeper understanding of their histories and psychologies, free from idealization and fear, and attentive to the explosive political power of pride and resentment. (emphasis mine)

And, of course, we see much of the twin temptations of idealization and fear—naïve idealization of groups with whom we readily sympathize (e.g., immigrants, ethnic/religious minorities, police) and a sensationalized fear of those with whom we don’t (e.g., immigrants, ethnic/religious minorities, police). Regardless of the outcome of the upcoming elections, we must all strive for as much intellectual honesty as possible and avoid falling for either or both of these twin temptations.

Nearly they stood who fall.
Themselves, when they look back
see always in the track
One torturing spot where all
By a possible quick swerve
Of will yet unenslaved–
By the infinitesimal twitching of a nerve–
Might have been saved.

Nearly they fell who stand.
These with cold after-fear
Look back and note how near
They grazed the Siren’s land
Wondering to think that fate
By threads so spidery-fine
The choice of ways so small, the event so great
Should thus entwine.

Therefore I sometimes fear
Lest oldest fears prove true
Lest, when no bugle blew
My mort, when skies looked clear
I may have stepped one hair’s
Breadth past the hair-breadth bourn
Which, being once crossed forever unawares
Forbids return.

C.S. Lewis, Poems; Nearly They Stood (1933)


The Rational Voter: Voter Information & Vote Choice


With the 2016 Presidential Election just 19 days away, this seems an appropriate juncture to pause and consider what it means to cast an informed and rational vote. The results from the earliest studies of public opinion in the 1940’s and 1950’s caused serious doubts about the American voter’s ability and willingness to acquire and process the information necessary to cast an informed vote. In 1957, Anthony Downs articulated a set of rationality assumptions by which vote choice could be evaluated. Since then, scholars have learned a great deal about how attitudes are acquired and expressed and how information is processed. Meanwhile, the project of evaluating vote choice has continued. Here, I briefly summarize some research in the Downsian stream concerning voters’ limitations and how they try to overcome them. Ultimately, I conclude that evaluating vote choice for rationality may be an unfruitful enterprise, but there have been fruitful developments besides.

Defining Rationality

Downs’ An Economic Theory of Democracy (1957) was an attempt to formulate a positive theory of democracy by applying the methodology of economics—specifically, methodological individualism and the rationality assumption—to actors in the political sphere. This undertaking required, in part, an account of the individual voter analogous to the individual consumer, a homo politicus (political man) corresponding to the stylized type homo economicus (economic man). Indeed, rational choice scholars have long contended that both private and public sector decision making are amenable to evaluation by one unified method.


It is important to note what rationality is and is not. As Downs explains, rational action is action “reasonably directed toward the achievement of conscious goals” (Downs 1957, 4). A rational man is not “a man whose thought processes consist exclusively of logical propositions, or a man without prejudices, or a man whose emotions are inoperative” (Id. at 5). Rather, rationality implies simply “a man who moves toward his goals in a way which, to the best of his knowledge, uses the least possible input of scarce resources per unit of valued output” (Id.). So, a rational voter is one who votes in order to maximize his individual utility. His utility function (bundle of preferences) need not consist solely of selfish desires; it need only consist of those ends which are his own.

Measuring Rationality

Measuring rationality can be tricky because it is difficult to observe an agent’s ends directly. One way of dealing with this problem is to assume that “every man’s behavior is always rational because (1) it is aimed at some end and (2) its returns must have outweighed its costs in his eyes or he would not have undertaken it” (Id. at 6). Of course, this assumption is tautological: every man’s behavior becomes rational qua definitione. Downs avoids this pitfall by another key assumption: “If a theorist knows the ends of some decision-maker, he can predict what actions will be taken to achieve them” (Id. at 4, emphasis mine). If the decision-maker’s end is given, the theorist can then measure rationality by assessing the degree to which an agent’s means are reasonably suited to his ends. This deft evasion of the tautological pitfall is not without cost, however, which shall become clear in later discussion.

Given the structure of the American two-party system, the American voter typically confronts a dichotomous choice between competing providers of public goods—the Democratic and Republican parties—neither of which fully aligns with his preferences. If the differential between the two parties is significant, the Downsian voter casts his ballot for the party which most closely aligns with his preferences. If the differential between the two parties is not significant, the rational voter may choose to adopt a decision rule based on an assessment of prior performance or forego voting altogether.


It is also important to be clear about the import of the model under discussion here. For vote choice scholars in the Downsian stream, the extent to which the typical voter approximates the rational voter has important normative implications for the quality and viability of American democracy. In a political order guided by the will of the people, the stability and health of that order may well depend upon the ways in which the people make decisions.

By definition, homo politicus votes to achieve desired policy goals. In the voter choice literature, the relationship between the rational voter and the issue voter is well-articulated by Carmine and Stimson:

The common—indeed, universal—view has been that voting choices based on policy concerns are superior to decisions based on party loyalty or candidate image. Only the former represent clearly sophisticated behavior. Indeed, the policy-oriented vote is a defining characteristic of that mythical specimen, the classic democratic citizen (1980, 79).

Carmines and Stimson, however, challenged the notion that issue voting is necessarily a sign of political sophistication. They argued that not all issues are created equal, and issue voters could be sub-divided into two types—easy and hard—based upon the characteristics of their chosen issue. An easy issue is defined as “symbolic rather than technical”, focused on “policy ends rather than means”, and is “long on the political agenda” rather than newly arising (Id. at 80). An easy issue “makes possible a gut response elicited equally from well-informed and ill-informed, from interested and uninterested, from active and apathetic voters” (Id.).  While hard-issue voters do seem to resemble the Downsian type, employing a well-reasoned decision calculus across a range of issues, easy-issue voters do not significantly differ from their non-issue-oriented counterparts, the authors claim.

Carmines and Stimson support their argument about the bifurcated nature of issue voting with an examination of the 1972 presidential election, “widely described as issue-oriented, perhaps more than any other” (Id. at 81). This election is an apt study because “it is dominated by two issues, Vietnam and desegregation, each an exemplification of hard and easy issues, respectively” (Id.). Carmines and Stimson use survey interview responses to ascertain the policy preferences of voters. Then, having operationalized an issue voter as an individual for whom knowledge of the individual’s policy preference increases the predictability of the individual’s vote over and above that of his party identification, Carmines and Stimson use probit analysis to assess the probability of an individual voting for McGovern. By comparing the predicted vote to the actual vote, the authors establish a fourfold typology: the non-issue voter, the easy-issue voter, the hard-issue voter, and the constrained-issue voter. Only the first three types are necessary to consider here. The non-issue voter is one for whom no greater predictability can be obtained beyond party identification. The easy-issue and hard-issue voter are voters for whom a desegregation or Vietnam policy preference yielded greater predictability beyond party identification alone.

Finally, Carmine and Stimson compare the easy-issue and hard-issue voter and find that the two groups differ systematically and significantly in levels of formal education, factual political knowledge (measured by a short test of basic civics knowledge), and level of political activism. Across all three dimensions, each deemed closely related with voter sophistication, the hard-issue voter outperformed his easy-issue counterpart. Carmine and Stimson’s conclusion is that easy-issue voters are issue voters but that the issue which motivates their vote requires much less information. Thus, the policy-oriented nature of the vote aside, there is little to suggest that the easy-issue voter is distinguishable from the non-issue voter, they argue. The authors conclude that “The surge of easy-issue voting is not an encouraging phenomenon for those who would hinge the viability of democracy on the ability of citizens to choose rationally between alternative issue positions of parties and candidates. The surge in issue voting seems likely to occur on a large scale only when the choices are simplistic” (Id. at 88).

But does the hard versus easy-issue distinction hold up? The categorization seems arbitrary. The two examples Carmines and Stimson proffer, desegregation and Vietnam withdrawal, are defended almost entirely on intuitive grounds.

Although the policy conflicts involved in desegregation can be detailed in great complexity, we think it reasonable to assume that the typical voter sees in it a simple issue…there are virtually no technical or pragmatic issues in it…The Vietnam War was quite a different issue….War and peace are simple enough ends, but the candidates did not offer that choice. Instead, the electorate was presented with alternative plans (one of them “secret”) to end the war…While antiwar activists may have a seen a wide gulf separating the candidates’ positions, we believe most voters saw the issue in far more narrow terms, focusing mainly on speed and conditions of withdrawal (Id. at 80-81).

Ultimately, desegregation is easy not because voters might not perceive complex social consequences involved in the question of if, when, or how desegregation took place, but because Carmines and Stimson “think it reasonable to assume that the typical voter” did not see it that way. Likewise, the Vietnam conflict is hard not because voters might not harbor simple affective preferences about if, when, or how the conflict was concluded, but because Carmines and Stimson “believe most voters saw the issue” in a more nuanced light. This hardly seems an adequate defense for a categorical distinction on which the entire study hangs.

Leaving intact, arguendo, the hard versus easy-issue distinction, Carmines and Stimson may push the point too far. Recall that a rational voter is one whose vote is reasonably well-calculated to achieve his own policy ends. According to Downs, the agent’s ends are not the proper objects of evaluation but are to be taken as given. But Carmines and Stimson seem to smuggle back into the analysis at least some evaluation of the voters’ ends. Once homo politicus is put up on a pedestal, it is perhaps too tempting to resist ascribing to him the noblest ends as well as the most efficient means.

Not all scholars in the Downsian stream are as pessimistic about the lack of sophistication of some issue voters. Arthur Lupia, in “Shortcuts Versus Encyclopedias: Information and Voting Behavior in California Insurance Reform Election” (1994), presents evidence from exit interviews with California ballot initiative voters that low information voters tend to vote similarly to high information voters through the use of informational signals from information providers. In short, voters who, through lack of time or interest, admittedly knew very few details about the multiple and highly technical propositions on the ballot, were surprisingly likely to vote their putative interests through the use of informational shortcuts, such as knowing the source of support for a given proposition. Lupia’s work suggests that there may be hope for the unsophisticated issue voter after all.

Yet, these studies highlight an important weakness in the rational voter model: we can only evaluate the fit between means and end if we know an agent’s end. Carmines and Stimson rely on survey response data to determine voter preferences while Lupia makes his own assumptions about what is in a voter’s economic interest. In the Lupia study, voters were selecting between five different propositions, each supported by one of three information providers: a consumer group, an insurance company, and the Trial Lawyers Association. So-called sophisticated voters were those who, in an exit interview, demonstrated a general grasp of the content of the propositions, and unsophisticated voters were those who did not. All voters who cast their ballot in favor of the consumer group-backed proposition were deemed by Lupia to have been acting in their own economic self-interest. Voters who voted for one of the propositions not supported by the consumer group were deemed to be acting contrary to their own economic self-interest.

Each of the complex propositions, however, were designed to deal with two separate considerations—auto insurance rates and access to court for auto accident claims—in different ways. Each proposition constituted a basket of trade-offs designed to balance the desire for lower insurance rates with the desire to protect access to court for meritorious auto accident claims. Lupia assumes that a vote cast for any of the non-consumer group-backed propositions is an irrational vote because he presumes to know what balance the individual voter is attempting to strike. However, we cannot be sure whether a given vote was reasonably calculated to achieve the desired end unless we can reliably determine what the desired end is. Lupia’s mere assertion of a voter’s interest lacks epistemic warrant. Even if we could determine with reasonable certainty the voter’s aim, it still may not be clear what the most effective means are and reasonable persons may disagree. Indeed, policy experts are often uncertain about the expected benefits of a given policy, especially when important trade-offs are involved. For this very reason policy makers often pursue incremental reforms in order to isolate the cause of error and minimize its effects (See Lindblom’s “The Science of ‘Muddling Through’” (1959)). Therefore, assuming a voter’s end may avoid the tautological pitfall yet still prove untenable.

Public Opinion Surveys: What Are They Good For?

Evaluating vote choice by assuming a voter’s end is problematic, but so is reliance on survey data as Carmines and Stimson do. John Zaller, in The Nature and Origins of Mass Opinion (1992) demonstrates both theoretically and empirically what a weak reed public opinion survey data can be and provides a more complex way of understanding the way voters acquire and process information. After a broad literature review demonstrating the general ignorance of members of the American public on political matters and the inexplicable variability of survey responses, Zaller lays out four axioms which form the foundation of his theory and from which he draws several testable deductions. Testing these deductions occupy the latter half of the book. I will briefly discuss each of these axioms and Zaller’s most significant deduction before offering concluding thoughts.


Axiom 1, the Reception Axiom, holds that “the greater a person’s cognitive engagement with an issue, the more likely he or she is to be exposed to and comprehend—in a word, to receive—political messages concerning that issue” (Zaller 1992, 42). Zaller chooses cognitive engagement over political interest because the former focuses on individual acquisition of political information, while the latter less helpfully focuses on affective involvement. “For example,” Zaller adds, “people who score higher on tests of political knowledge are substantially more stable in their attitude reports than people who score low in political awareness; however, people who describe themselves as highly interested in politics…are not significantly more stable than persons who express little political interest” (Id. at 43). Thus, Zaller’s measure of cognitive engagement consists of a neutral test of political knowledge involving questions on public affairs, which he finds to be more reliable gauge of an individual’s level of attentiveness to politics.

Axiom 2, the Resistance Axiom, holds that “people tend to resist arguments that are inconsistent with their political predispositions, but they do so only to the extent that they possess the contextual information necessary to perceive a relationship between the message and their predispositions” (Id. at 44). In other words, individuals are resistant to arguments from “the other side” of the political spectrum but only to the extent that they are aware that those arguments are from the other side. Here, Zaller relies on psychological literature indicating that individuals more readily embrace ideas from trusted sources and are highly skeptical of ideas from rival sources.

Axiom 3, the Accessibility Axiom, holds that “the more recently a consideration has been called to mind or thought about, the less time it takes to receive that consideration or related considerations from memory and bring them to the top of the head for use” (Id. at 48). This insight, which Zaller draws from cognitive psychology, means that individuals are not super computers capable of holding all the information they have previously consumed readily available at once for application to a given question; rather, they most easily recall ideas which they have thought about most recently.

Axiom 4, the Response Axiom, is closely related to Axiom 3. It holds that “individuals answer survey questions by averaging across the considerations that are immediately salient or accessible to them” (Id. at 49). Simply, individuals respond to survey questions by sampling only from those ideas that most readily spring to mind, and their opinion statement constitutes a mere composite of perhaps diverse and even conflicting ideas.

Zaller’s most theoretically significant deduction, the Ambivalence Deduction, follows most directly from Axiom 2 and combines with Axiom 4 in interesting ways. If, as Axiom 2 states, individuals can adequately resist arguments inconsistent with their attitudes only to the extent that those individuals are cued in to the directional implications of those arguments, and members of the mass public are as generally ignorant of politics as the literature suggests, it follows that members of the mass public might unwittingly hold internally inconsistent political attitudes. Thus, relatively politically inattentive people can be expected to demonstrate a high degree of ambivalence.

Understanding the variability in survey responses then requires only the combination of the Ambivalence Deduction and Axiom 4, the Response Axiom. If most members of the mass public are walking repositories of inconsistent political ideas, and answer survey queries by a haphazard sampling of those ideas which are most cognitively available, survey responses may tell us more about the most recent news coverage to which a given respondent has been exposed or the framing of the survey question than the respondents’ fixed true attitudes. Zaller recounts a host of survey results which demonstrate this point rather neatly. Indeed, Zaller asserts, “individuals do not typically possess ‘true attitudes’ on issues, as conventional theorizing assumes, but a series of partially independent and often inconsistent ones…[T]rue attitude seems a grievous simplification” (Id. at 93).

Most of the heavy lifting in Zaller’s theory is done by the Ambivalence Deduction and the Response Axiom working in tandem. One example of this is found in chapter six, “The mainstream and polarization effects.” This chapter opens with an examination of public reaction to Nixon’s 1971 speech announcing wage and price controls and the reversal of support for the war in Vietnam in the 1960’s. Zaller’s aim is to account for the effects of elite communications on mass attitudes by examining a case “in which elites achieve a consensus or near consensus on a value or policy” (Nixonian controls)  and another “in which elites disagree along partisan or ideological lines” (Vietnam in the late 1960’s) (Id. at 97).

In the case of Nixonian wage and price controls, public support grew after Nixon’s speech on the subject and remained high among members of the public as conservative and liberal elites embraced the policy. Likewise, public support for the war in Vietnam was high during the early 1960’s while elites provided unified support. Zaller calls this the mainstream effect—when members of the mass public receive the same cues from partisan elites, mass liberals and conservatives can be expected to be very close in their attitudes.  But, by the late 1960’s, elite support had divided, with conservative elites maintaining support for the war and liberal elites turning in opposition. Zaller notes that, when elites divided over the war, “increases in awareness [were] associated with greater polarization of the attitudes of mass liberals and conservatives” (Id. at 102). Simply, the more cognitively engaged members of the mass public received more cues from their respective elites and were more resistant to cues from ‘the other side.’ This is the polarization effect and shows the power of Zaller’s model.

Though Zaller presents a wide range of empirical support for the mainstream and polarization effects, the implied causation—from elite preference formation, to elite cues, to mass preference formation—does not seem fully substantiated. Could there be some factor driving elite preference change and mass preference change? For example, educated mass liberals began to change their mind about the war around the same time educated elite liberals began to change their mind about the war. Elite influence is one plausible explanation, but could it not be that individuals who are similarly disposed, educated, and socialized will tend to react similarly to political events? Moreover, once one considers that similarly educated elite liberals react similarly to educated mass liberals, the partition erected by terms like “elite” and “mass” begins to appear rather thin.

Nevertheless, several important implications follow from Zaller’s model. One implication is that polarization may be here to stay. Recall from the Resistance Axiom that “people tend to resist arguments that are inconsistent with their political predispositions, but they do so only to the extent that they possess the contextual information necessary to perceive a relationship between the message and their predispositions” (Id. at 44). Members of the mass public are predicted to be ambivalent to the extent that they are inundated with messages from both sides of the American ideological divide and are unable to discern the source of each message. Thus, an inattentive liberal (or conservative) member of the mass public is likely to be receptive to and sympathetic with rival arguments confronted in the public sphere. But some social scientists warn that Americans are becoming more atomized in their lifestyles (Putnam 1995) while the proliferation of niche media outlets can effectively insulate the consumer of public information from rival views.

Most importantly, Zaller’s work demonstrates that public opinion survey data is unreliable. If survey data is unreliable, then it is not available to save the Downsian rational voter analysis from the tautological pitfall and the blind assignment of preferences to voters by researchers. Zaller’s work shifts attention away from evaluating voters for rationality and focuses more fruitfully on the question of how public opinion is influenced in the context of public life. In the Zaller research program, voters who are limited in time and cognitive capacity respond to the complexities of political life by acquiring ideology which then permits the selective acquisition, processing, and application of information gleaned from public discourse. This process is messier than the pristine Downsian model, but also appears to capture more faithfully the realities of American political life.

Immigration Battle and the Proper Role of Administrative Agencies

I’ve written before about the debate over the constitutionality of President Obama’s deferred deportation program. Here is a neat little video explaining that program:

On Monday of last week, U.S. District Judge Andrew S. Hanen (TX, 5th Circuit) granted an injunction against the Obama administration’s program while a lawsuit filed by 26 states challenging it was being decided. Judge Hanen did two things in his opinion worthy of note. First, he declared that, although agency inaction is generally a matter in which courts are to defer to agency discretion, DHS’s affirmative directive not to enforce a legal provision is distinguishable from mere inaction:

While the Court recognizes… that the DHS possesses considerable discretion in carrying out its duties under the INA, the facts of this case do not implicate the concerns considered by Heckler such that this Court finds itself without the ability to review Defendants’ actions. First, the Court finds an important distinction in two terms that are commonly used interchangeably when discussing Heckler’s presumption of unreviewability: “non-enforcement” and “inaction.” While agency “non-enforcement” might imply “inaction” in most circumstances, the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as “non-enforcement,” it is actually affirmative action rather than inaction.

The Supreme Court’s concern that courts lack meaningful focus for judicial review when presented with agency inaction (see Heckler, 470 U.S. at 832) is thus not present in this situation. Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. Absent DAPA, these individuals would not receive these benefits. The DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for “administrative convenience.” Had the States complained only of the DHS’ mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any “focus for judicial review.” See Heckler, 470 U.S. at 832.

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that—not enforcing the law. Non-enforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations. This Court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such “non-enforcement” decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual. Not only does this proposition run afoul of traditional exercises of prosecutorial discretion that generally receive judicial deference, but it also flies in the face of the very concerns that informed the Heckler Court’s holding. This Court finds the DHS Directive distinguishable from the non-enforcement decisions to which Heckler referred, and thus concludes that Heckler’s presumption of unreviewability is inapplicable in this case.

Next, Judge Hanen determined that the enabling legislation left discretion only as to the means of deportation and not as to whether the specified persons were to be deported:

The DHS’ job is to enforce the laws Congress passes and the President signs (or at least does not veto). It has broad discretion to utilize when it is enforcing a law. Nevertheless, no statute gives the DHS the discretion it is trying to exercise here. Thus, Defendants are without express authority to do so by law, especially since by Congressional Act, the DAPA recipients are illegally present in this country. As stated before, most, if not all, fall into one of two categories. They either illegally entered the country, or they entered legally and then overstayed their permission to stay. Under current law, regardless of the genesis of their illegality, the Government is charged with the duty of removing them. Subsection 1225(b)(1)(A) states unequivocally that the DHS “shall order the alien removed from the United States without further hearing or review….” Section 1227, the corresponding section, orders the same for aliens who entered legally, but who have violated their status. While several generations of statutes have amended both the categorization and in some aspects the terminology, one thing has remained constant: the duty of the Federal Government is to effectuate the removal of illegal aliens. The Supreme Court most recently affirmed this duty in Arizona v. United States: “ICE officers are responsible for the identification, apprehension, and removal of illegal aliens.” 132 S.Ct. at 2500.

Notably, the applicable statutes use the imperative term “shall,” not the permissive term “may.” There are those who insist that such language imposes an absolute duty to initiate removal and no discretion is permitted. Others take the opposition position, interpreting “shall” to mean “may.” This Court finds both positions to be wanting. “Shall” indicates a congressional mandate that does not confer discretion—i.e., one which should be complied with to the extent possible and to the extent one’s resources allow. It does not divest the Executive Branch of its inherent discretion to formulate the best means of achieving the objective, but it does deprive the Executive Branch of its ability to directly and substantially contravene statutory commands. Congress’ use of the term “may,” on the other hand, indicates a Congressional grant of discretion to the Executive to either accept or not accept the goal. Texas v. United States, (S.D. Tex. Feb. 16, 2015)

Despite the broadness of Judge Hanen’s opinion, his ultimate ruling was fairly narrow. He held that DHS should have (at the very least) followed a notice-and-comment procedure before making such a major change in its activities. If the notice-and-comment requirement is unfamiliar to you, see my post on agency rulemaking here. For a general discussion of the President’s power over administrative agencies, see my post here.

Of course, it is in fierce debates over public policy that these vital questions about separation of powers and procedural rules arise. Like many high profile court cases, the ultimate determination of questions about the role of executive agencies in our tripartite democratic system has consequences which extend beyond the settlement of the dispute between the conflicting parties or the context-specific public policy implications, as important as those matters might be in their own right. In the meantime, students of both immigration policy and the role of administrative agencies can learn a lot from the litigation as it unfolds. The Obama administration has vowed to appeal this decision. The President himself had this to say in response to the ruling:

Much recent attention has focused on a single court decision in Texas in response to a partisan lawsuit that delays some of these lawful, common-sense steps…I disagree with this judge’s ruling. Just yesterday, the Department of Justice asked the court for an emergency stay of this misguided decision, and it has already filed a notice of appeal. My administration will fight this ruling with every tool at our disposal, and I have full confidence that these actions will ultimately be upheld.

It’s time to end the era of manufactured crises, put politics aside and focus on doing what’s best for America. So while I will fight any attempt to turn back the progress we’ve made or break up families across our country, I welcome the opportunity to work with anyone who wants to build on the improvements we’ve put in place, and fix our broken immigration system once and for all.

Throughout our history, America’s tradition as a nation of laws and a nation of immigrants has continually shaped us for the better. If we renew that tradition, and build upon it for future generations, there’s no limit to what we can achieve.

Stay tuned…



Updating Schoolhouse Rock in an Era of Dysfunction

I’m gonna go out on a limb and predict that, after all the hemming and hawing, we will ultimately end up with immigration reform in the form of legislation in the coming Congress–if not in one major bill, then in piecemeal confidence-building efforts. It seems the only other options for congressional Republicans boil down to either letting the President’s action go unchecked or to check it with escalating punitive obstruction which will be gratifying in the immediate term, but ultimately detrimental to their own newly resurgent (and precarious) prestige. Another option is a legal challenge which might ultimately succeed, but perhaps not within a time horizon relevant to the present conflict. As an aside, a legal challenge may still prove attractive if it adds momentum to the 2016 presidential contest.

In the meantime, SNL has demonstrated yet again that its true calling is not the quirky, slightly raunchy humor to which it often resorts, but political satire. Here is an update to the Schoolhouse Rock classic “I’m Just a Bill”:


A Classic(al) Response to the President’s Plan

President Obama will finally announce his intended executive actions on immigration tonight at 8/7 central after a dinner with congressional Democrats. You will be able to catch that live here.

Meanwhile Senator Ted Cruz (R-TX) can keep us entertained with a speech from Cicero, originally delivered in 63 B.C., modified for this occasion:



UPDATE: Here is President Obama’s address.

Obama’s executive action:

— Delays the deportation of the undocumented parents of children who are in the country legally.

— It also protects any children who were brought to this country illegally before January 1, 2010.

— It directs immigration officials to concentrate on deporting criminals and those who pose a threat to national security.

Best line:

“But even as we focus on deporting criminals, the fact is that millions of immigrants in every state, of every race and nationality still live here illegally. And let’s be honest: tracking down, rounding up,  and deporting millions of people isn’t realistic. Anyone who suggests otherwise isn’t being straight with you.”