Why Democrats Should be Willing to Crawl Over Broken Glass to Vote for Abdul El-Sayed

 

Abdul El-Sayed

I will begin by setting forth my position, which I hope to repeat many times throughout the election season.  I believe, as I think many others do, that Donald Trump is an existential threat to our democracy and everything we hold dear, who must be stopped at all costs.  I think that many others agree.

And if you truly believe this, it logically follows that "all costs" should include voting for a candidate who is not your first choice, or who you did not vote for in the primary, or who does not check all your ideological boxes.  It even means voting for a candidate who may be troubling in some ways.

And, in fact, Democrats seem to have taken this lesson to heart.  After long, hard-fought primaries, they have promptly closed ranks behind the winner.  When Graham Platner was forced out in Maine, Democrats quickly coalesced around at candidate who shared is policy outlook and had a real working class background but lacked his unsavory baggage.  When the leftwing insurgent in Wisconsin lost the gubernatorial primary to an establishment candidate, she lined up behind the winner.  And so, too, in Michigan, when Abdul El-Sayed, the leftwing insurgent, beat the establishment candidate, Michigan Democrats promptly closed ranks behind him.

El-Sayed, so far as I can tell, stands well to the left of your median voter or even your median Democrat, but is not insane and seems mostly free of alarming baggage.  The most alarming things about him are (1) his hostility to Israel sometimes seems to bleed over into alarming territory and (2) he is closely associated with leftwing shock jock Hasan Piker.  On the strong side, he has a strong background in public health -- probably better than any current sitting Democrat in either house of Congress, and certainly better than any current Democratic Senator.  He has also, to all appearances, shown first rate administrative competence in managing the Detroit and Wayne County public health departments.

Assuming El-Sayed wins, the best strategy for Senate party leaders is obvious.  Put El-Sayed in charge of public health policy and, secondarily, have him work on administrative oversight.  These are his strong points and areas where Democrats would certainly have use for his talents.  Keep him out of foreign policy and national security, where he is most controversial and has no particular credentials.  In terms of committee assignments, put him on the Health, Education, Labor, and Pensions Committee and perhaps the Veterans Affairs Committee.  Healthcare is the Democrats' strongest policy area and El-Sayed no doubt has unique contributions to offer in that field (including veterans' benefits).  If that is not enough to keep him busy, the Homeland Security and Governmental Affairs Committee apparently has the sort of general administrative supervision role as the House Oversight Committee and handles general administrative competence -- another of El-Sayed's strong points.  But the leadership would probably want to keep him off the Foreign Relations Committee, the Armed Services Committee, or the Intelligence Committee.  These are the places where El-Sayed's views are most controversial, and where he has no particular expertise.*

And consider the implications of putting El-Sayed on the health committee.  If Democrats want to enact Medicare For All, El-Sayed is particularly well qualified to work out the practical details of making that a reality.  For anyone who is skeptical of the plan's feasibility, El-Sayed is particularly well-positioned to figure out if it is practical, and to extend Medicare to all if it is practical, or to convince Bernie Sanders et al if it is not.

But even that is not El-Sayed's biggest attraction.  His biggest attraction is that if he serves on the Health, Education, Labor and Pensions Committee, he will have oversight over RFK, Jr.  And that means that El-Sayed will be able to ask RFK, Jr. questions and make him squirm like we have never seen him squirm before.  Now, that's worth crawling over barbed wire and broken glass to see!

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*Interestingly, his opponent, Mike Rogers, does have a strong background in these areas and probably would get these committee assignments, but not any healthcare assignment, if elected.  But, after all, there is nothing wrong with two rival candidates for Congress having different areas of expertise.

All Elections Matter

One of the things that distinguishes the US from any other country is our extraordinary number of elective offices -- almost 500,000!  No other country anywhere in the world has anything approaching that number of elective offices.* In a midterm election year it often seems that there is some sort of election taking place in the country every week -- an exaggeration, but not all that much of an exaggeration if one counts special elections.

And here is the thing to keep in mind -- all those offices matter.  Much of the day-to-day business of governing takes place at the local level.  Local officials control law enforcement, school, road maintenance, land use regulations, etc.**  Many have argued that Democrats' great mistake when Obama was elected was to put all their eggs in the Presidential basket -- to assume that once we elected a President, everything else would fall into line.  That is not just a serious misunderstanding of the nature of government in the US, it is an ultimately authoritarian outlook.  It assumes that power flows from the top down and that the person at the top can dictate terms for everyone else.  

Putting all our eggs in the Presidential basket proved a disaster.  Republicans won sweeping victories at all other levels.  Democrats have learned some things from the experience and focused more on Congress and Governors.  Democrats are only beginning to start seriously competing in state legislatures and state Supreme Courts.  But that, too, still focuses on the tip of the governmental iceberg. It ignores the vast array of local governments that account for the great majority of elective offices (see below).

Not only do we have an immense number of elective offices, but all of those offices are important.  Governors certify election results.  They also decide whether to put their State Police at the disposal of ICE (I'm look at you, Texas and Florida).  Secretaries of State (usually elective) certify election results and set regulations governing elections.  Attorney Generals (usually elective) can sue to block Trump's latest outrage -- or not.  State legislatures set laws governing elections.  They also pass laws mandating or forbidding sanctuary policies.  They can pass Medicaid expansion -- or not.  They can move at least to some degree to fill the gaps Federal funding and regulatory cuts have left -- or not.  

Counties in the US

And that is just at the state level.  County Clerks (usually elective) actually run elections and count the votes.  There have been isolated cases of resistance to certifying results.  Expect more.  Where state sanctuary laws are silent or ambiguous, decisions can be made by county sheriffs (usually elective), city councils, and city police chiefs (usually hired by the elective government).  Don't forget, counties in the US are generally geographic, rather than demographic, units.  This means that most counties are rural and (presumably) elect Republican officials.  

My focus has been here has been on elections and sanctuary laws, but a local government can affect a wide variety of other issues, from data centers to school curriculum to school transgender policies (not my cup of tea, but important to others on our side).  

In short, it can seem frivolous to focus on local offices and policy when our democracy is at stake.  But local offices and policy are democracy.  Much of it is dull and mundane, but such is life.  Furthermore, these local offices are the "bench" that the party draws from to recruit candidates for higher office.  Democracy is safe only if Democrats learn to stop ceding vast parts of the country to Republicans and become competitive everywhere.  The scale is daunting. But the time to start is now.  Because if we wait, it will be too late.

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*And, yes, I understand that a country as large as the US will necessarily have more elective offices than a smaller country.  But US citizens choose from a longer ballot than voters anywhere else.
**At we approached the 2024 elections and a Donald Trump victory seemed inevitable this was my one source of hope.  Political power in the US is extremely diffuse.  Local government offers an immense number of points of resistance.  The Federal Government's super power is the money it dispenses.  The best way I could think to prepare for Trump was to audit budgets and plan for how to get by if federal funds were cut off.

Since I Can't Seem to Let Go of That Bone

 

OK, since I just can't seem to let go of this one, let explain in different terms why transgenderism is engendering such resentment.

Suppose we concede two of transgender activists' main points:

1. Gender identity should always override biological sex in determining a person's gender (i.e., their status as male, female or other).
2. People are making much too big a deal of this, since only 0.6% of the population is transgender.

And yes, I get that both propositions are controversial,* but if we concede them for the sake of argument, it actually goes a long way toward explaining so many people's resentment of transgenderism.

Quite simply, the 99.4% of the population that is "cisgender" resents having to rework the language, and often more than the language, to accommodate the sensibilities of 0.6% of the population.  If gender identity and biological sex match 99.4% of the time, treating then as synonymous is a reasonably good working generalization and rare exceptions can be treated as, well, rare exceptions.

Consider current activist demands.  Activists object to the term "pregnant woman" because 0.6% of all pregnant persons may self-identify as male.**  They object to treating abortion as a women's issue because 0.6% of all persons seeking abortions may self-identify as male.**  They object to saying "mother" or "mom" and insist on "birthing person" or "birthing parent" because 0.6% of all people who give birth may self-identify as male.** Some activists object to listing a baby's biological sex on their birth certificate because it might clash with their gender identity 0.6% of the time.  And some urge people not to make any assumptions about a potential sexual partner's genitals because they might get it wrong 0.6% of the time.  Some go further and insist that we not take genitals into account at all in choosing a sex partner.  A few urge parents not to tell their children whether they are a boy or girl because that might be wrong 0.6% of the time and children should be free to "choose" a gender.

Simply put, we are asked to treat biological/natal sex and gender identity as completely separate and unrelated matters even though there is a 99.4% correlation between them.  Then, any time ignoring the distinction raises practical difficulties, we are supposed to dismiss those difficulties as insignificant because, after all, the difficulties only apply 0.6% of the time.  

That is a lot of mental gymnastics for 0.6% of the population to demand of the other 99.4%.

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*Obviously, the whole question of gender identity vs. biological sex is controversial, but the rate of transgenderism is also controversial.  In particular, many people suspect that activists are pushing way too many people to identify as transgender.  But I will ignore that for the sake of this argument.

**Probably less, since taking cross-sex hormones can have the effect of reducing fertility.

Is There a Conservative Case for Transgenderism?

 

Go ahead and call it a ridiculous question, but if transgender activists ever want broad social acceptance, they had better figure out the conservative case for it.

The case of gay marriage is instructive.  Gay marriage was once considered a radical, extremist notion.  It has since gained broad acceptance.  And I think the reason is that the conservative case for gay marriage has always been there.  When gays first came out of the closet, they were not widely accepted and tended to live in gay ghettos, engaged in unrestrained promiscuity and extravagant lifestyles.*  What ultimately led to widespread acceptance of gay marriage was its underlying conservatism.  It meant that a same sex couple could integrate into the general population and live a convention life -- except for being a two-husband or two-wife couple.  

The next big battle was over who could be compelled to participate in a gay marriage and led to massive controversy over cake bakers, photographers, website designers and the like.**  The Supreme Court actually reach a very satisfactory resolution and persuaded champions of gay marriage by appealing to a basic liberal principle -- that no one should be compelled to engage in speech they disagreed with.  Anyone merely selling prefabricated wedding materials must sell to all comers, but if there was an "expressive" element, such as a written message, no one could be required to take part.  The controversy ceased.

And consider the biggest change to come out of Black Lives Matter -- police wearing body cameras.  I assume that this has become widely accepted because the police ultimately concluded it was not anti-police, or at least not inherently so.  No doubt body cameras deter a certain amount of police misconduct and make it easier to prosecute when it does happen.  Police cameras also clear the police of false accusations of misconduct.  They reinforce evidence of crime.  And the footage can be useful simply for refreshing memories and making sure stories are accurate before going into court.  

So, my advice to anyone wanting society to make a clear rule that gender is a matter of subjective self-identification had better figure out the conservative case for it if they want to make it stick

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*Then AIDS came along and wiped the whole lifestyle out, but that is a different story.
**The one group everyone agreed could not be compelled to participate was the clergy.

Transgenderism and Polydactyly

 

To understand what normies (myself included) find so annoying about transgenderism, consider the case of polydactyly (having more than five fingers). Rates polydactyly are similar to rates of intersex development.  For polydactyly it is between four and twelve per 10,000 births (one in 2500 or .04% to one in 833 or .12%).  For intersex development estimates range from .018% to .05% to as high as 1.7% if one counts exceptions to the XX or XY chromosome rule.  

Certainly, I agree that intersex babies should not receive surgery without their informed consent to force them to be male or female.  Likewise, if a movement arises among polydactyl people to stop amputating a sixth digit and to treat polydactyly as a variant on normal rather than a deformity, I would support it.

At the same time, I also think that acting as if everyone has five fingers -- or as if everyone is male or female -- is a perfectly good working generalization.  I do not share the view that all generalizations are bad.  Generalizations are necessary to our understanding of the world.  They become oppressive only when people stop treating generalizations as general rules with some exceptions and instead treat them as absolutes that everyone must be forced to conform to.   Some people are polydactyl.  Some people are intersex.  Some people are transgender, which is not the same as intersex, even if people sometimes conflate the two.

It oppresses polydactyls to treat them as social outcasts or bar them from opportunities offered to everyone else or make fun of them for being different.  It may arguably oppress polydactyls to amputate the sixth digit or call the condition a deformity.  But it does not oppress polydactyls to generally not think about them and to simply assume that everyone has five fingers.  I don't think this is verry controversial.

I am left-handed myself and sometimes resent the degree to which things are built with the assumption that everyone is right-handed.  I wish more desks had an extension to write with the left hand, left-handed scissors were of better quality, and so forth.  But there are some activities (playing a string instrument, driving a car with a manual transmission) where left-handed people just have to suck it up and adapt.  Likewise, no doubt there are things that can be done to make society more accommodating to people with six fingers.  

But now suppose that polydactyls went beyond calling on everyone not to treat polydactyly as a deformity or amputate the sixth finger, or even make, say, hand grips easier for people with six fingers.  Suppose polydactyls demanded that other people not refer to the hand as having five fingers because it "says that we don't exist," "erases our existence," and is even "genocide."  Suppose polydactyls cried oppression when Sesame Street had characters sing, "Oh, I've got five fingers on my left hand.  Five fingers on my right."  Suppose they insisted that anatomy classes stop teaching about hands with five fingers and insisted that they teach five or six.  Suppose they denounced terms like index finger, middle finger, ring finger, and pinkie as oppressive because they exclude people with six fingers.  Hell, suppose the more radical ones even demanded the end of Base Ten as oppressive to people with twelve fingers.

Don't you think that this would engender a certain degree of resentment among the vast majority of the population who have five fingers?  In short, asking not to be mocked and treated as social outcasts is a thing every liberal should get behind.  Asking to be treated as equals is a just demand.  Asking for some degree of accommodation from society is reasonable.  But there are limits to how far society can reasonably be asked to go to accommodate a miniscule portion of the population.  At the very least, the degree of accommodation is a proper topic of democratic debate.  And for a minuscule portion of the population to demand that the broad society rearrange itself to accommodate them, and treating every demand as a matter of basic human rights that permits no compromise is a sure-fire way to incur the resentment of people who otherwise would be willing to live and let live.

Some Unfashionable Thoughts on Transgenderism

 

I have no idea where to find the quote, but someone commented the one of the left's least endearing behaviors was a tendency to stake out a radical and highly controversial position and treat it, not just as settled fact, but as something no right-thinking person could dissent from.  

Such was the case with gay marriage; such is the case now with transgenderism.  Rod Dreher once commented on gay marriage that liberals would always dismiss the matter of whether people could be compelled to take part in a gay marriage as too minor an issue to be upset about, to why he would respond that if it is such a minor issue, why are you unwilling to concede it.

Much the same applies to transgender sports.  People on our side dismiss it as such a minor issue as not to be worth getting upset about, mostly because the numbers are so small.  But somehow, they are never willing to concede this very minor issue.  

When people get so worked up about so minor an issue, with neither side willing to make any concessions, it strongly suggests that the minor issue is the tip of the iceberg, standing for something much larger.  In this case, the real underlying issue is how one defines gender at all.

To avoid confusion, let me clarify my terms.  For purposes of this discussion, I will use the following definitions:

Gender:  The state of being a man, woman, boy, girl, male, female, or whatever other gender one can come up with, regardless of how that state of being is defined.

Sex/biological sex:  A biological and medical classification as male, female or intersex.

Natal sex:  Biological and medical sex at birth, as defined by one's genes and reproductive system.

Gender identity:  One's subjective sense of one's own gender.

The real issue underlying the question of transgender athletes is whether gender (the state of being male or female) is defined by objective biological and medical facts, or by subjective state of mind.  In other words, is gender determined by natal sex, biological sex or by gender identity.

This frequently gets conflated with another issue -- whether biological sex is binary or a spectrum.  The underlying assumption, seemingly accepted by both sides, is that if biological sex is binary, then gender must be determined by objective biological sex, but if biological sex is a spectrum, then gender identity must prevail.  I don't see that this follows at all.   

Let's start with some basics.  Intersex people exist.  This is not seriously disputed.  People disagree how exactly being intersex is defined, some defining it more broadly than others.  Certainly, there are edge cases that are not easily classified as male or female.  Some people say that even these edge cases can still be classified as either male or female depending on whether their gonads are geared toward producing eggs or sperm.

I say, so what?

Most transgender controversies do not involve these edge cases.  They involve cases in which gender identity conflicts with clear-cut natal sex. 

I do not see it logically follows from the existence of some edge cases that do not readily classify as biologically male or female that being male or female is always and necessarily a matter of subjective identification rather than objective biology.  

It is perfectly possible to believe that:

1. Intersex people exist;
2. Reasonable minds can differ on how intersex is defined;
3. Some edge cases don't readily classify as biologically male or female;
4. Outside of this very small number of edge cases, being male or female is nonetheless a matter of objective biology.

I suppose it is also possible to believe that:

1.  Biological sex is defined by gametes and is binary;
2. Gender exists independent of biological sex and is subjective.

Next point:  Intersex people have been around for a long time.  Whether to classify them as legally male or female has been seen as important because historically, men and women have not been equal in the eyes of the law, so the individual's rights depended on classification.

Well, our society views things differently.  We see men and women as equal, except in certain matters where biological and medical status compels a distinction.  Women used to be denied the right to vote, to own property, to contract and sue, to serve on juries, etc. etc.  And well after that, women were denied credit cards, car rentals, certain types of jobs, etc.

We don't take that viewpoint anymore.  We believe that men and women should be treated equally in employment, housing, access to credit, etc. etc. In other words, in most contexts, we have concluded that it should not matter whether one is biologically or medically male or female, they still should have the same rights.  And in such cases, one doesn't really have to worry too much whether we equate gender with subjective self-definition or objective biology.  Either way, transgenders should be treated the same as anyone else.

Admittedly, equal legal and commercial rights are not the whole picture.  Men and women may be legally and commercially equal and still be socially treated differently.  Examples might include what subjects it is acceptable to discuss, how expansively one expresses one's self, what jokes may acceptably be told and the like.  Inn terms of social interaction we might treat men and women differently, but the difference is based on outward presentation, rather than biology.  In other words, transgenders who present as their gender identity rather than their natal sex can reasonably receive the sort of etiquette that is normal for their gender identity.  Bodies are still not what matters.

But there is simply no denying that there are times when bodies do matter.  Examples might include sports, changing rooms, other places where nudity is common, rape crisis centers, medical care, prisons, or sexual relationships.  These things are still sex-segregated, even to this day, because bodies and biological status really do matter, and because it really is significant that men are bigger and stronger than women and women need to be protected. 

So far as I can tell, the usual transgender response in those cases is distinguish natal sex from biological sex.  Yes, there are biological and medical differences that give men an advantage.  Those differences are the result of hormones.  Taking hormones removes the advantage that natal males have over natal females.  I am a little unclear whether that means that natal males turn into biological females when they take female hormones, or that biological sex can be rendered irrelevant by hormone treatment.  But so far as I can tell, most transgender advocates don't parse these fine points.  They simply say that transgender women are women and to question that is a violation of the most basic human rights.

In other words, they are taking a radical and highly controversial position and treating it, not just as settled fact, but as something no right-thinking person could dissent from.  And, as mentioned at the outset, this invariably leads to major resentment.

Recent Supreme Court Decisions for Trump, Also in Ascending Order of Importance

 

So much for the Supreme Court decisions that went against Trump.  What about the ones in his favor?

Going from least to most important:

West Virginia v. BPJ

This one allowed states to bar transgender athletes from girl's and women's sports. Democrats have usually kept quiet on this one. And my response is, fine!  It may not be a fashionable view on my side of the aisle, but there are biological and medical differences between males and females that current medical technology cannot overcome.  One of our side's arguments that there is no need for rules because the numbers are so small.  But the numbers are not zero.  The cases in controversy involved actual individuals in that situation.  Another argument is there is no need for a national rule, and it should be locally decided.  Which is fine.  The Supreme Court does not say that states must ban transgenders from female sports, only that they may.  And they left undisturbed a prior decision that bars employment discrimination against transgenders on the perfectly reasonable ground that employment and sports are different.  The dissent would not impose a categorical rule but would require schools to decide on a case-by-case basis.   The majority allows decisions on a case-by-case basis but does not require it.  Fine by me.

National Republican Senatorial Committee v. Federal Election Commission

This case struck down a longstanding rule limiting the ability of political party organizations to coordinate with and spend money on individual candidates, so long as donations to parties are not earmarked for one particular candidate and are properly disclosed.  The basis of this ruling is First Amendment freedom of speech.  I am somewhat ambivalent on this one.  The immediate effect would be to give the Republican Party an advantage in spending on its candidates, since it has larger (much) war chest than the Democrats.  I do not think it is too cynical to believe that this fact may have played into the Supreme Court's decision.  On the other hand, the decision comments, and I agree, that a lot of our current problems are the result of the weakening of political parties and their takeover by interest groups.  A stronger party structure would probably have screened out Graham Platner, for instance.  On the Republican side, a stronger party structure might have stopped Ken Paxton or Victor Marx.  To say nothing of you-know-who.  Weakening of parties and their takeover by interest groups has undermined democracy  in other countries.  Activists have a longstanding tendency to see themselves as the voice of the people simply because they are not political insiders.  But political insiders are often closer to the median voter than activists.  Party hacks are also less likely to see opponents as enemies and policy disputes as existential struggles.

At the same time, I can see other objections here.  One is that US democracy really is facing an existential struggle and ordinary rules do not apply.  Another is that our parties are weakened past all recovery.  And finally, the Supreme Court now is saying that our politics may be improved by allowing closer coordination between candidates and parties.  But how long before they decide that the First Amendment also compels coordination between candidates and interest groups?  Just for the record, I don't think our political parties are unsalvageable, at least not yet.  The reason activist are so angry at party hacks is that party hacks still have significant power.  On the other hand, I do think we are facing an existential crisis that saying this will work out well in the long run is useless if our democracy is overturned in the short run.  And I don't trust this Supreme Court as far as I can spit.

Markwayne Mullin v. Al Otro Lado

This case ruled that asylum seekers have no right to apply for asylum until they physically enter the US.  The practical upshot of this is that the Trump Administration can kill asylum altogether by closing the border and physically keeping out people who otherwise had a good claim.  The majority stuck to the polite assumption that this was merely a policy of "metering" -- requiring asylum seekers to enter the country at a manageable pace.  The dissent pointed out that in reality, it is used to prevent any asylum applications whatever.

Look, some sort of "metering" is going to be necessary to prevent the sort of all-out border chaos that brought Trump to power in the first place.  In his first term, Trump's ultimately successful approach to border control was the "remain in Mexico" policy, requiring asylum seekers to wait in Mexico while their claims were processed.  The results were brutal.  Asylum seekers waited in squalid conditions, often without adequate food or shelter, preyed upon by roving gangs. But, so far as most Americans were concerned, out of sight, out of mind.  

My view when Biden came to power was that he should keep this policy but make it more humane by offering some sort of protection and basic sustenance to people waiting -- enough to avoid a humanitarian crisis, but not enough to encourage people to show up who did not have a valid claim.  Instead, he ended Remain in Mexico without putting anything in its place, resulting in an uncontrolled flood of entries.  In an effort to control the border, Biden attempted an alternative -- allowing people to apply for asylum from third countries and be admitted in an orderly fashion if approve.  Naturally this was unsatisfactory to hardcore MAGA types who regarded any immigration as unacceptable.  It came too late for more moderate types and was easy to conflate with the border chaos.  If Democrats ever again have the opportunity to make immigration policy, it seems to me that the only way to balance the need for border control with basic humanitarian concern is to allow for application from outside the country.  This may require changing existing law.

Allowing the President to halt the entire asylum system by physically blocking applicants violates the spirit, if not the letter, of the law.  It is, however, the sort of power the Supreme Court would willingly entrust to a hypothetical future Democratic Administration because they are most unlikely to use it. And it is not the Supreme Court's worst opinion in the recent batch because it merely ratifies the existing situation.  At least it does not make things worse than they already are.

Mullin v. Doe

Worse than the Supreme Court's ruling the President can blow up the entire asylum system, which at least merely ratified what was already in place, was their ruling that he can also kick out anyone with Temporary Protected Status (TPS).  The majority explained by way of background that long before the relevant statute was enacted, Presidents had been granting relief from deportation to people from countries that were experiencing a major humanitarian crisis.  The status was also revocable at will and not subject to any oversite whatever.  Finding that this gave the President too much unbridled discretion, Congress enacted a statute setting forth specific procedures to be followed.  The Secretary of Homeland Security must consult with the relevant agencies about conditions in the country, review their findings, make a decision and publish it in the Federal Register.. At the same time, the statute declares TSP findings to be unreviewable.  What are we to make of that?

The majority held that unreviewable means that following the necessary steps is really optional.  If a Secretary of Homeland Security (Kristi Noem, say) skips the necessary review there is nothing anyone can do about it.*  The dissent argued that even if the final decision is unreviewable, the court can order the Secretary to go back and at least comply with the mandatory procedures.  I am not sure how useful this is if the Secretary can do the mandatory review of records and then simply ignore the evidence!  The plaintiffs -- Syrian and Haitian refugees -- argued that Trump violated their equal protection rights under the Constitution because he was excluding them because of their race.  The majority said nonsense, Trump simply doesn't like the law that protects immigrants whose home country is unsafe and decided to ignore it.  So apparently a Republican President is free to disregard any law he dislikes.  Clarence Thomas, in a concurring opinion, said that non-citizens have no constitutional rights, and that the Equal Protection Clause only applies to states and the federal government is free to do all the racial discriminating it wants to.  (No wonder some people see him as self-hating!).  The dissent pointed out some of the things Trump has actually said about Haitians -- comments so vulgar the majority could not bring itself to repeat them.

And then, of course, there are the real-world consequences of the decision, which the majority prided

itself in ignoring.  The Supreme Court gives the green light to stepped-up ethnic cleansing.  No Haitian is now safe.  And the harm is not just to Haitians living in the US.  Our home health and nursing homes in Florida and Ohio have come to rely heavily on Haitian labor.  I have thought for some time that nothing would make Trump's ethnic cleansing more unpopular than the sight of ICE raiding nursing homes and arresting people who change granny's diapers.  So why isn't there a huge outcry over this?  Granted, seniors in nursing homes are not a powerful interest group.  But what about the nursing home industry?  What about family members of seniors in nursing homes?  What about the AARP?  Why aren't any of these groups screaming bloody murder?

Still, bad as this decision is, it could worse.  For one thing, it seems compatible with the Supreme Court believing a Democrat might be President again some day.  No doubt they think this power can be safely entrusted to a Democrat because they would never use it.  It is also a matter of statutory interpretation rather than constitutional mandate.  Other executive actions are still subject to judicial review.  The statute really did say that the Secretary of Homeland Security's determinations are unreviewable.  What can be enacted by statute can (hypothetically) be overturned by statute.  Incredibly, the House of Representatives has actually passed legislation extending Haitians' protected status.  Hypothetically the Senate could pass it too.  Needless to say, it seems vanishingly unlikely given (a) the super-majority requirements of the filibuster and (b) that Congress will be out of town during August, will spend September trying to avert a government shutdown, and then will take off during October to campaign.  But I suppose it could come up for a vote if the AARP, the nursing home industry, and others raise a big enough stink.  And if Florida and Ohio Senators (all Republicans) support such legislation, maybe they will give enough other Republicans a permission structure.  Needless to say, Trump would never sign such legislation, but he doesn't have to.  He can simply let it become law without his signature.

Alas, all of this seems most unlikely, and the consequences of mass deportations will be devastating, both for Haitians and for the US.  But still this was not the worst decision.

Trump v. Slaughter

This is the one that threatens to overturn the rule of law altogether, and that strongly suggests the Supreme Court never expects a Democrat ever to be President again.  

Congress has created a number of multi-member regulatory commissions, including the Federal Trade Commission, that it requires have a mixed number of Democrats and Republicans and shields from being fired by the President.  In the case of the Federal Trade Commission (FTC), there are five members -- two Democrats, two Republicans, and a chair chosen by the President. By picking the chair, the President's party is able to have a majority.  Members serve seven-year terms and cannot be removed by the President except for "inefficiency, neglect of duty, or malfeasance in office."  All nominees must be Senate-approved.  This arrangement, it must be noted, goes back to 1914.

The Constitution gives the President power to appoint heads of executive departments, subject to the advice and consent of the Senate.  It is silent on who has authority to fire the heads of executive departments.  The First Congress vested that power solely in the President and, despite some attempts to limit that power, it has generally been accepted as belonging solely to the President until the FTC was created in 1914.  The Supreme Court first ruled on the issue in 1926 -- twelve years after the creating of the FTC -- by upholding the President's unrestrained power to fire federal executive officials.  However, in 1935, the Supreme Court carved out an exception in the case of multi-member commissions exercising quasi-judicial powers.  The Supreme Court's primary concern at the time, it should be noted, was limiting President Frankin D. Roosevelt's power to fire Hoover appointees.  Since then, Congress went on to create numerous other independent, multi-member agencies required to be bipartisan and limiting the President's power to fire members.

The Supreme Court swept all of this aside and gave the President unlimited power to fire members of such commissions.  In favor of this decision, the Supreme Court argued that all executive power vests in the President, the FTC is an executive agency, and its power must therefore vest in the President.  It also offered various historical arguments -- the Founders vested all executive power in a single official despite bad experience with King George; the states had attempted having executive councils in place of a single official and it did not work well; despite the Constitution's silence on who had power to fire executive official, the first Congress vested that power in the President alone and subsequent Congresses refrained from changing the rule for a long time, so the original statute is incorporated in the Constitution.  And Chief Justice Roberts left open that possibility that at least some non-executive officials can be protected from being fired by the President.  The Supreme Court has made fairly clear that it does consider rules protecting the Federal Reserve from being fired by the President to be constitutional, a position that Roberts reiterates.  He also mentions non-Article III federal judges, i.e., specialty judges who do not have life tenure.

Limiting the decision to multi-member boards is bad enough.  It means that the President can fire any member of such a board whose actions displease him.  The obvious example is the Federal Communications Commission (FCC), where Chariman Brandon Carr makes a regular practice of threating the licenses of television stations that run news that displeases Donald Trump.  Slaughter authorizes Trump to fire all other members of the FCC and replace them with Brandon Carr clones, and even to issue directives to the FCC to pull licenses of such stations and fire anyone who refuses to comply.  And it just might get worse.  

The opinion is studiously silent on whether any Civil Service protections from firing pass constitutional muster, even though the Supreme Court has upheld such protections since 1886.  Even if the Court has not removed Civil Service protections, one multi-member commission is the one that decides whether removals of government employees comply with Civil Service protections.  Slaughter now authorizes Trump to fire any member of the Merit Systems Protection Board who rules against him, thereby seriously undermining Civil Service protections to begin with.  But at least such decisions are subject to judicial review.  Slaughter invites challenge as to whether the Constitution allows any civil service protections at all.  While the article I am citing focuses primarily on how undermining or eliminating Civil Service protections the danger is much worse.  It means that Trump can order public employees to take illegal actions and fire everyone who refuses.  Since the President's power of pardon federal crimes under the Constitution is absolute, and since the Supreme Court has already given (Republican) Presidents immunity from prosecution for public acts, this decision poses a mortal threat to the rule of law.  And, even worse, it invites challenge to see whether the President can fire judges who are not life tenured.  

And here is the most alarming part of all.  The Supreme Court originally upheld multi-member commissions protected from firing to restrain the power of a Democratic President.  The Roberts Court has now removed that rule in order to enhance the power of a Republican President.  It seems unlikely that they would entrust a Democrat with such a power, any more than the Court was willing to do so in 1935.  And I do not see any way the Supreme Court can hedge in order to uphold such firings by a Republican and reject them by a Democrat.

That can only mean that the Supreme Court is confident that Trump has successfully rigged the system to ensure that no Democrat can ever by President again.

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*Presumably they would not have upheld the rule if she had failed to publish, or how would anyone know it was a rule at all?