McConnell’s Gambit … and How the Democrats Set It Up

In last week’s post, I briefly mentioned Senate Majority Leader Mitch McConnell’s refusal to allow the Senate to consider President Obama’s Supreme Court nominee, Merrick Garland.  This attack on democracy was such a flagrant abuse of his power that it deserves an in-depth look. 

Supreme Court Justice Antonin Scalia died suddenly on February 13, 2016.  Within three days, McConnell announced his intention not to consider any candidate that Obama might nominate to replace Scalia. 

The American people‎ should have a voice in the selection of their next Supreme Court Justice … Therefore, this vacancy should not be filled until we have a new President.

This excuse had absolutely no basis in the Constitution or in any law Congress had ever passed.  The Constitution gives the President explicit and exclusive authority to nominate justices while giving the Senate explicit and exclusive authority to approve them.  Majority Leader McConnell used naked power to violate the clear intention of the Constitution.

A week later, Senate Republicans caucused and agreed.  McConnell reported,

I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.

This excuse is bizarre.  The “American people” had already had “their voice in the selection of the next Supreme Court Justice” when they elected Obama in 2012.  And to consider Obama a “lame-duck president” when he still had eleven months in his term of office defies logic and reveals the disingenuousness of McConnell’s argument.  It’s a marker of our extreme partisanship that McConnell was not laughed out of Congress, much less supported by his party.

By announcing his edict before Obama had even considered a nomination, McConnell made clear that it had nothing to do with the qualifications of any candidate.  In fact, Garland was widely considered a moderate judge whom a majority of Republicans had supported when he was previously appointed to the US Court of Appeals. 

McConnell later gloated that

the decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I’ve ever made in my entire public career.

The practical consequences of McConnell’s brazenness was the longest vacancy (422 days) in the history of the modern Court.  The decision will affect the nation for at least a generation.  With Trump’s two extremely conservative nominees, the court will have at least a 5/4 conservative/liberal tilt for years.  And since two of the four liberals are in their 80s, it’s likely that the balance will tilt further.

But the greater damage is to our democracy.  Yes, McConnell was within his legal authority; the majority leader determines the timing of the Senate’s work.  But clearly he did not act in accordance with the intentions of the Constitutions, which certainly did not intend to give one person such power.  Neither did he act in the tradition of the country, nor in the best interests of the democracy.  At any time in the future, the majority leader can now block any nominee at any point in a president’s term.  Especially with our hyper-partisan Congress ruled by a radical minority within the Republican Party, we have entered new and dangerous territory.

While the legislative maneuver was different, the Democratic Party must accept some responsibility for McConnell’s power play.  When Democrats were the majority party, tradition required sixty votes (a “super-majority”) to approve nominees for either the president’s cabinet or federal judicial posts, ensuring some level of bipartisan cooperation.  When, in 2013, Republicans repeatedly rejected Obama’s nominees, the Democrats, using a rare parliamentary procedure, voted that approval could be decided by a simple majority.  Bipartisan support was no longer needed.  The Democrats did not intend to extend their ruling to the Supreme Court, but the precedent was obvious.  McConnell used a different mechanism (refusal to bring the nomination to a vote), but the Democrats had already left a wide-open door. McConnell walked right through. 

The Constitution’s power is based not only upon its content but also on the traditions that have been built upon it to maintain democracy.  Sustained, direct and legalistic assaults by whomever has the power—in this case Democrats first and then Republicans—will do great damage to our nation.

Not with a Bang but a Sputter

How do democracies fall? 

Most of us think of the sudden, often violent, overthrow of government: the CIA-led overthrow of the Iranian democracy in 1951; Augusto Pinochet’s 1973 military coup d’etat in Chile with the murder of Salvador Allende; the 2013 military take-over in Egypt led by General Abdel Fattah el-Sisi, now president.  By that metric, we in the United States feel safe.  Such a revolution here can hardly be imagined.

Statistically, however, the decline of most democracies of the last century has been a stutter, a gradual erosion of laws and norms.  They’ve happened mostly legally—often leaving democratic remnants, eg elections, in place, blurring the actual loss of democracy.  Even Hitler’s rise to Chancellor was conducted through proper channels. 

Attorney General Sessions’s unusual decision not to defend the Affordable Care Act in court is an example.  It may seem to be just one more relatively innocuous partisan event among the many outrageous events during this administration.  But it’s more than that: conducted completely legally and according to proper protocol, it’s a precedent that chips away at an essential function of the Justice Department: defending the law of the land.  Furthermore, if the president, through the Justice Department, can pick and choose which congressionally determined laws to defend, he can effectively choose which laws remain on the books, a further blurring of the line between the executive and legislative functions of government.

In May of 2017 (immediately after Trump’s dismissal of FBI director James Comey), University Chicago law professor Aziz Huq wrote an article that is most helpful.  After studying “37 recent instances in which the quality of a nation’s democratic institutions shrank substantially,” Dr Aziz concluded that

the road away from democracy is rarely characterized by overt violations of the formal rule of law. To the contrary, the contemporary path away from democracy under the rule of law typically relies on actions within the law. Central among these legal measures is the early disabling of internal monitors of governmental illegality by the aggressive exercise of (legal) personnel powers. Often, there are related changes to the designs of institutions, which might be brought about through legislation. Ironically, the law is deployed to undermine legality and the rule of law more generally.

Using this lens, many of the events of the last eighteen months begin to take on an additional meaning.

“Fake News”

Trump’s repeated accusations of “fake news”—now picked up by many other politicians, government officials and media, particularly Fox News—are hardly new for a politician.  But never, as far as I know, has any president launched such a brutal attack on the media as such, especially based on easily certifiable lies.  In addition, the President tweeted that the nation’s news media “is the enemy of the American people.”

This is all constitutionally permissible under presidential power.  From one point of view, the President is only using the bully pulpit of the presidency to attack the legitimacy of mainstream-news reporting.  In fact, however, he’s attacking the legitimacy of the media itself.  Democracy, however, depends on a free press that has, among other functions, the job of reporting on the dark side of power.  Just as important, the power of the media depends on the people trusting that it will do its best and if it fails, will issue a timely correction.  It’s true that American trust in the media has been falling steadily for decades.  However, this sustained attack—led by the President, backed by partisans in the media and politics, and based largely upon obvious lies—is new in our society. 

Trump and the Republican attacks on Robert Mueller and his investigation

In May of 2017, Deputy Attorney General Rod Rosenstein (Sessions had recused himself) appointed Robert Mueller—a former director of the FBI with a stellar bipartisan reputation—to conduct an ongoing investigation into Russian interference in the 2016 U.S. presidential election and related matters, government and Donald Trump's campaign.

Soon after the appointment, many Republican politicians began disparaging the investigation.  Earlier this year, the House Intelligence Committee Report (“Nunes report”) was approved along completely partisan lines.   It was later discredited.  Trump calls the investigation a “witch hunt.”  Further, the President continues to assert that the House investigation “vindicated him.”  It did not.  The New York Times reported that Republicans are “pushing the narrative that a cabal of politically biased law enforcement officials set out to sabotage Mr. Trump.” 

Turning the House Intelligence committee process into a partisan attempt to vindicate the President, further weakens yet another of our democratic norms.

Pardons

Presidents are legally allowed to pardon whomever they choose.  President Trump has chosen to pardon Sherriff Joe Arpaio who was being prosecuted for unconstitutionally detaining immigrants.  Pardons are ordinarily given after the judicial process is completed and after investigation by the Federal Office of the Pardon Attorney, which Trump ignored.  Although legal, this pardon can be seen as Trump’s arrogation of judiciary powers.

Trump also pardoned Scooter Libby, a member of Vice-President Dick Cheney’s staff, for offenses remarkably similar to the offenses for which Trump’s campaign staff are being investigated.  Both the Libby and Arpaio pardons have been widely interpreted as signals to former staff involved in the Mueller probe that they, too, will be eligible for pardons.

Others

Even before Trump’s presidency, Majority Leader Mitch McConnell refused to allow even a vote on Barack Obama’s nomination for the Supreme Court.  Trump didn’t instigate this, but it’s a powerful example of what is happening to our democracy.

One of the three candidates being seriously considered for Trump’s Supreme Court nomination is Brett Kavanaugh who has previously argued that “presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.”  Kavanaugh’s appointment would clearly give Trump a friendlier Supreme Court in the event of impeachment or other charges.  It may well be that Kavanaugh will not be nominated;** there are other, political problems that might delay his conformation. But it's remarkable that he is even being considered without the issue having been raised.

Trump has rejected the unanimous finding of all four intelligence agencies (CIA, FBI, NSA, and the Office of the Director of National Intelligence) that investigated Russian interference in the 2016 election.

Trump’s attacks on the judiciary, his disparaging of the Attorney General, his dismissal of the legitimacy of the FBI, Sessions, and Congress and his unrestrained lying are only a few of the subtle and not so subtle attacks that wear away at elements of our democratic society.

We might remind ourselves of the fable of the frog thrown into cold water who doesn’t notice the gradual rise in temperature even as he’s boiled.


** Tues, Sep 28.  In fact, Trump did nominate Brett Kavanaugh.  I notice that the Washington Post does finally have an article about this issue.

Constitutional Rights Are Not Always Popular

But They Are Essential to Democracy

I have written before that the Trump Administration has several times called indirectly to ignore the rights of due process accorded by the Fifth and Fourteenth Amendments.  In this post I want to discuss Trump’s more serious tweet of Sunday, June 24, in which he explicitly calls for revoking those constitutional guarantees of due process when it comes to immigrants:

We cannot allow all of these people to invade our Country.  When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.  Our system is a mockery to good immigration policy and Law and Order.

It’s those “judges and court cases,” of course, that assure our rights are protected.  This brazen call to ignore constitutional protections is a new low for this President. 

Other presidents have sometimes flouted constitutional rights.  President Roosevelt’s order to intern Japanese Americans is perhaps the most well-known example.  To my knowledge, however, no previous president has explicitly suggested ignoring the courts altogether.

To recap the relevant points from my previous post, due process requires

• the person be given notice of the procedure,
• they be given an opportunity to be heard, and
• the decision is made by a neutral decision maker. 

In practice due process also includes

• the right to present arguments against the decision,
• the opportunity to be represented by counsel,
• the right to present evidence, and other procedures.

After enumerating certain rights of citizens, the 14th Amendment declares that

[N]o State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (italics mine)

The Supreme Court has ruled several times that, with few exceptions (namely, voting, some government jobs and gun ownership), even undocumented immigrants have full rights to constitutional protections, including due process.  Trump’s tweets are an unambiguous attack on the Constitution in direct violation of the president’s vow at his inauguration to “preserve, protect and defend the Constitution of the United States.” 

Constitutional protections are often unpopular, especially the First Amendment’s guarantee of freedom of speech (even racist or hateful speech) or the Fourth Amendment’s guarantee of protection from unreasonable search and seizure, especially when used by what-appear-to-be obviously-guilty criminals.  But the Constitution and the Supreme Court’s interpretations of those protections are clear: As unpopular and inconvenient as they may be, they are still the law of the land, to be preserved, protected, and defended by the President.

We must ask: Why is the President making such statements? 

From the very beginning of his campaign, Trump has repeatedly told us that immigrants are dangerous criminals.  Stirring up these fears of the “other,” especially immigrants, is almost certainly the main purpose of these tweets.  It’s important, therefore, to counter some of the President’s lies.

1. Trump has tweeted that “Border Patrol Agents are not allowed to properly do their job at the Border because of ridiculous liberal (Democrat) laws like Catch & Release.”  In fact there is no such law, (much less a Democratic one), and “Catch and Release” was a policy that Trump has already eliminated by executive order shortly after his inauguration.
   Furthermore, there is already a policy under which the Border Patrol agents immediately turn back almost half of those attempting to cross the border unless they claim they will be in danger if they are returned to their home country.
2. Trump has tweeted that “big flows of people” are illegally entering the US from Mexico “to take advantage of DACA” (Deferred Action for Childhood Arrivals for the “Dreamers”).  In fact, DACA is only available to applicants under 16 who have lived in the US continuously since 2007.  No one who crossed the border since 2007 has been eligible for DACA.
3. Trump has said undocumented immigrants commit more crimes than US citizens.  In fact, “illegal” immigrants commit fewer crimes than US citizens.
4. In response to reasonable calls for more immigration judges who could speed up the processing of the backlog of more than 650,000 cases, Trump has tweeted that “we now have thousands of judges -- border judges -- thousands and thousands.”  In fact there are about 335.

More important, both US and International law have long guaranteed haven to refugees seeking asylum if they would be in danger in their own country.  The US already has very strict legal process for evaluating the credibility of those claim.  After 44% of those seeking to cross the border illegally have been turned away on the spot by Border Patrol agents, those “Judges or Courts” that Trump would bypass review the remaining immigrants’ claims of danger thoroughly: 76% of them are substantiated.  All those immigrants whose lives were truly in danger would have been turned back by the “zero-tolerance policy.”  It is this required, humanitarian process—to say nothing of the Statue of Liberty’s welcome to “your huddled masses yearning to be free” for which we are perhaps most admired around the world—that the President wants to nullify.

Trump’s statements are meant to scare Americans into abrogating the due process provisions of the US Constitution that is meant to protect all of us from the kind of governmental arbitrary practices that could deprive any one of us of our right to “life, liberty, and the pursuit of happiness.”

Perhaps we should meditate upon Martin Niemöller’s poem about Germany’s Nazi regime:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist. 

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist. 

Then they came for the Jews, and I did not speak out—
Because I was not a Jew. 

Then they came for me—and there was no one left to speak for me.

Encouraging Intolerable Intolerance

The consequences of President Trump’s multiple threats to our democracy include not only the passive mistrust of government he sows among large swaths of the American public (also here, here, here, and other of my blog posts) but also the encouragement he offers to the most intolerant segments of our society.  Even more dangerous, his contempt for democratic values has begun to spread to other political figures and groups.  These politicians are not just the radical fringe of government whose values Trump has long reflected.  They include also right-wing members of Congress, candidates running for office, and even mainstream politicians who refuse to condemn Trump’s assault on democracy.

Columnist Michael Gerson—writing before Trump’s “zero-tolerance” policy that separated several thousand children from their parents—is worth quoting at length:

Whatever else Trumpism may be, it is the systematic organization of resentment against outgroups. Trump’s record is rich in dehumanization. It was evident

• when he called Mexican migrants “criminals” and “rapists.”
• When he claimed legal mistreatment from a judge because “he’s a Mexican.” (Judge Gonzalo P. Curiel was born in Indiana.)
• When he proposed a “total and complete shutdown of Muslims entering the United States.”
• When he attacked Muslim Gold Star parents.
• When he sidestepped opportunities to criticize former Ku Klux Klan leader David Duke.
• When he referred to “very fine people” among the white-supremacist protesters in Charlottesville.
• When he expressed a preference for Norwegian immigrants above those from nonwhite “shithole countries.”

And since Gerson’s commentary was published, Trump’s dehumanization has been stunningly evident in his “zero-tolerance” policy that separated several thousand young children from their parents; he subsequently changed policy only after extraordinary pressure from the American people, other world leaders, and, more significantly, from Republican politicians who recognized the damage he was doing to his party.  In reversing his decision, Trump blamed others and would not even acknowledge his own complicity, thus encouraging his supporters’ faith in him that, as he said in accepting the Republican nomination for president: “I alone can fix it.”

Gerson again:

This is more than a disturbing pattern; it is an organizing political principle. And it has resulted in a series of radiating consequences.

In West Virginia, Republican Senate candidate Don Blankenship accused Senate Majority Leader Mitch McConnell (R-Ky.) of creating jobs for “China people” and getting donations from his “China family.” (McConnell’s wife, Elaine Chao, was born in Taiwan.) In Georgia, Republican gubernatorial candidate Michael Williams drives around in a bus he promises to fill with “illegals” who will be deported to Mexico. On the rear is stamped: “Murderers, rapists, kidnappers, child molestors [sic], and other criminals on board.” In Arizona, Republican Senate candidate (and former Maricopa County sheriff) Joe Arpaio is a proud “birther” with a history of profiling and abusing Hispanic migrants ….  In Wisconsin, Republican House candidate Paul Nehlen runs as a “pro-white Christian American candidate.”

These may be fringe figures, but more mainstream Republicans have not been much better.  Until the “zero-tolerance policy,” which created revulsion around the world and threatened the existence of their party, very few Republicans who had not already announced their retirement, were willing to confront Trump’s obvious prejudice or challenge his fitness to be president.

Trump’s attitudes have moved the entire Republican Party toward increasing intolerance.  Candidates have outbid each other to be the most exclusionary.  Gerson again:

Mainstream attitudes toward refugees and legal immigration have become more xenophobic. Trump has not only given permission to those on the fringes; he has also changed the Republican mean to be more mean.

This raises disturbing questions about the degree to which we will be able to reverse Trump’s pernicious attack on democracy after he leaves office.

Almost 250 years ago, the founders of our country recognized that self-government depended upon more than mere tolerance.  In the Declaration of Independence, the founders

hold these truths to be self-evident, that all men [sic] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

As a people we recognize that when Hispanic immigrants, African Americans, women or Japanese Americans (immigrant or not) are deprived of fundamental rights, the basis for true democracy is deeply threatened.

Democracy depends upon the people’s ongoing affirmation that all people—all races, all ethnicities, all nationalities—all are created equal.  There is no exception for immigrants.  The founders recognized that democracy depended on our being proud of offering liberty to everyone … even those waiting to be recognized.  Yes, we may delay the right to vote or even withhold the right to reside here permanently, but we may not withhold fundamental human rights: respect for the humanity of all: life, liberty and the pursuit of happiness.

Our democracy thrives on respect for those who are different from ourselves.  It thrives when we recognize the gifts and value of “the other.”  It thrives when we welcome the stranger.

But, even leaving aside of questions of thriving, our democracy depends, at the very least, upon tolerance for those we disagree with, for those whose culture is different from ours, even for those who cross our borders without documents.  As Trump systematically organizes resentment against the “other,” our democracy—and we who value it—will suffer.

Hurry-Up Justice for Immigrants

Over the past several months Attorney General Jeff Sessions has announced several changes in the enforcement of immigration law.  All three of these changes are unconstitutional and will significantly restrict the legal rights of immigrants to due process as guaranteed under the Fifth and the Fourteenth Amendments. 

• In March, Sessions announced the elimination of a requirement that asylum seekers get a full hearing before an immigration judge if, upon initial review, the asylum seeker’s claims appear to be fraudulent or unlikely to succeed.  While immigrant law expressly gives no right to appointed counsel, now immigrants will, in addition, have no opportunity to present their full case to anyone.  This will especially impact not only poor, marginally educated applicants who are unfamiliar with the system and cannot easily present their case but also juvenile cases, which can be quite complicated and time-consuming. 

• In a little-noticed decision, the Department of Justice will in October begin effectively imposing quotas on the 350 US immigration judges, requiring each judge to process and clear 700 cases per year.  With a backlog of well over 650,000 cases which average over 700 days to wend their way to decision, clearly something needs to be done, but the National Association of Immigration objects that

[P]roduction quotas put due process at risk and threaten judicial independence. … Due process cannot be meted out on a schedule, but requires judges to use their expertise on a case-by-case basis to move cases as fairly and efficiently as possible.

A far more appropriate solution to the backlog would be the appointment of many more immigration judges.  President Trump has said he is against more judges.  And his call to deny due process and send immigrants back without appearing before justices (which I will deal with in more detail in the next post) makes his position clearer.

• And just this week, US Attorney General Jeff Sessions announced that

claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. …  The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

In other words, victims of domestic violence or gang violence—no matter the risk of injury or death on return to their home country—will have no right to claim asylum.**  

The Attorney General does have the legal right to make determinations about immigration.  But before the government can deprive a person of “life, liberty, or the pursuit of justice,” due process requires, at a legal minimum,

• the person be given notice of the procedure,
• they be given an opportunity to be heard, and 
• the decision is made by made by a neutral decision maker.  

In actual practice, however, due process also includes

• the right to present arguments against the decision, 
• opportunity to be represented by counsel, 
• the right to present evidence, and other procedures.

As opposed to popular understanding (and the opinions of some talk-show hosts), the Supreme Court has several times ruled that—except for voting, some government jobs and gun ownership—even undocumented immigrants are entitled to the full constitutional rights of a citizen.

Unlike regulars judges, immigration judges—who decide the potentially life-alternating fates of undocumented refugees—are employees of the Justice Department and, therefore, the Executive Branch of government.  They do not enjoy the same constitutional protections as judges who work in the in the Judicial Branch of government, which means that although immigration judges still have to follow the Constitution in their decisions, they do not have the same protection from political pressure.

Immigration lawyers are hired by the Attorney General and, unlike most judges, do not have tenure-for-life but can be fired or relocated by the Department of Justice. This makes them exceptionally prone to political pressure.

Although the independence of immigration judges is protected in law—Federal regulations state that judges “exercise independent judgment and discretion”—these actions by the Attorney General place enormous pressure on the judges and will, in practice, compromise their independent judgment.

While there has been a great deal of media and public attention to Trump’s wall, Obama’s leniency, DACA recipients and so on, there has been little such attention to these administrative changes that will have profound impact on whether undocumented immigrants will get a fair chance to claim their lawful and rightful place in the country.

Once again, democracy takes powerful but almost unnoticed hits.
______________
** There is an exception if the applicant can show that “their home government is unable or unwilling to protect them, and that they cannot safely relocate to another part of their country,” a requirement that all but the richest applicants with access to experienced lawyers and investigators could meet.  Certainly few poor, undocumented immigrants could possibly qualify.

What If Immigration Were a Real Policy Issue and Not Just a Cudgel?

William Galston of the Brookings Institute has written an important article about the difference between threats to democracy and legitimate policy disputes.  While the difference is obvious once you think about it, it can be lost in the political chaos of these times.

Consider immigration.  It may be the most important political issue separating right from left in national politics, not only here but across the Westernized world.  Far-right leaders in Hungary, Germany, Great Britain and, most recently, Italy have used the immigration issue to drive their parties to dominant positions in government, which would have been unimaginable even a few years ago.

Populist arguments are especially effective during the periods when large segments of the public have been left behind economically.  Recent immigrants—especially the undocumented—who are willing to take less desirable jobs at lower wages are very easy to blame for the increasing inequality in the country, even if there is little evidence that they are a significant cause.  It is an argument the demagogue manipulates easily to demonize the other side.

The current immigration issue is poisoning democratic politics. Purging this poison will mean resisting the urge to demonize the critics of current policies and instead searching for common ground that promotes the common good.  That’s obvious, I suppose, but it’s also easy to forget in the heat of battle.

Many of us on the Left see the immigration debate in purely moral terms with clearly defined right sides and wrong sides.  We see the populist demand for border walls and strict immigration limits as threats to our moral standing in the world.  On our side, we say, we are supporting the oppressed of the world, those damaged by our militaristic society, those escaping from horrific conditions in their world (which are also frequently the result of US policies).  We believe immigrants strengthen America.  We tend to believe that the people on the other side of the debate are “bigots,” manipulated by the right-wing media, dangerously nationalistic, and ignorant of how positive a force immigrants are in society and so on. 

All of which is understandable.

Those on the populist side see themselves as victims of economic and cultural displacement; they fear the loss of US sovereignty; they are concerned about crime and the danger of living near people who are so different from themselves; they see a threat to the rule of law by tolerating "illegal" immigration; they feel the disdain of liberal elites who are insensitive to their needs, unaffected by the problems caused by immigration. 

All of which is understandable.

But, in reality and as opposed to the extremes of right and left, there are no clear answers to the questions raised by immigration.

Galston writes:

The rise of populism calls on the defenders of liberal democracy to distinguish more rigorously between policy disputes and regime-level threats. Political leaders can assert the right of their nations to put their interests first without threatening liberal democratic institutions and norms. This is a policy dispute within liberal democracy, not about liberal democracy. In a similar vein, the defenders of liberal democracy should acknowledge that control of borders is an attribute of national sovereignty and that liberal democratic citizens can have a wide range of views on the appropriate number and type of immigrants. Protecting liberal democracy against populist threats to individual rights, constitutional checks, and the rule of law does not require defending every detail of every policy that populist parties attack.

What we often don’t realize, and what the media almost ignores, is that national polls do not reflect the partisan debate. 

• Only 8% of Americans, for instance, believe that having many different races, ethnic groups or nationalities makes the United States a worse place to live.  (35% say it doesn’t make any difference.) 
• In another poll, 59% of the public (and even 35% of Republicans) say immigrants strengthen the country, while only 33% describe them as a burden. 
• In that same poll, 75% of the public says that undocumented immigrants now living in the U.S. should be allowed to stay legally if certain requirements are met, while only 23% say they should not.

Why the disparity between what these polls show us and what we hear and read? 

First, many of the most disturbing polls reported are conducted either among Republicans or, even more skewed, among Trump supporters.  Second, conflict raise media market share, encouraging outlets to report most heavily on anything controversial.  And third, polarization is pronounced among the political leaders.  Republicans, and to a lesser extent, Democrats are playing to their bases.

So what might we agree on?  Galston again:

The case for changing the mix of immigrants is stronger. No other country devotes two-thirds of its annual immigration flow to family reunification. Shifting towards economic contribution as the main criterion for admission, as Canada has done, would make sense politically as well as economically. Although Canada’s annual immigration as a share of its population is three times as high as in the United States, its system enjoys super-majority support.

Other changes — an increased focus on the rapid acquisition of English fluency and a working knowledge of American history and civic institutions, for example — would address cultural fears. Acknowledging the legitimacy of widespread concerns about the rule of law through stepped-up enforcement at the border and the workplace would ease the way for a reasonable and humane approach to the millions of immigrants who are present illegally in the United States.

While such changes may have little effect on the beliefs of the already polarized, moderating the progressive voice could speak more readily to the moderate voters who do have legitimate concerns about immigration—even if they’re not in Trump’s corner.

Learning to separate out the actual threats to the democratic process from the political policy disputes is essential if we hope to speak to the people who are, in fact, spread across a spectrum of opinion, and not just those huddled on the edges.  We are not going to convince the rabid nationalists, but perhaps we can show we’re willing to listen to the legitimate concerns of our friends and neighbors with whom we have differences. We can enter into actual conversation, even debate, without demonizing the “other side.”  Proper immigration policy is not a simple, straight-forward issue.  Perhaps if we recognized that we don’t have all the answers, either, we could move the conversation forward.

The Criminal Deep State (?)

In attacking elements of the US government that sometimes make decisions or act in ways that he opposes, President Trump frequently uses the term “deep state.”  In his recent attacks on the Department of Justice, he even uses the term “criminal deep state,” implying the existence of a secret, illegal group within the US government—perhaps colluding with the “fake media”—that manipulates or even controls national policy.  That the president of the United States is stoking paranoia by affirming the existence of such a conspiracy is extraordinarily dangerous.

The President has never defined what he means by “deep state” or “criminal deep state” (or if there is a difference).  In fact, there is no generally-agreed-upon definition of the terms.

• In its most benign definition used by whistleblower Edward Snowden, deep state is “a way of referring to the career bureaucracy of government … who sit in powerful positions, who don't leave when presidents do, who watch presidents come and go; ... they impact policy, they influence presidents.”  In this sense, the existence of a deep state is obvious and hardly debatable.  In fact, something like such a bureaucracy is required for the functioning of any government.
• In a more pejorative sense, the term “is useful for understanding aspects of the national security establishment … [especially] in the United States … [that] draws power from the national security and intelligence communities, a realm where secrecy is a source of power.”  While not completely obvious, there is again little question of the existence such a deep state.
• But Trump and his allies go much further, using the term to refer to a secret criminal conspiracy involving government, non-government, military officials and elements of the fake who manipulate or direct national policy, in a sense an alternative government.  The President has used the term to refer the FBI, the Department of Justice, and the mainstream media, among others.  And when the President refers to a criminal deep state, he is moving into allegations of a different magnitude, referring to something malevolent, essentially a take-over of government.

The closest thing we’ve previously had to these kinds of allegations comes from the 1950s during the Cold War when fear of Communism was high.  Without evidence, Wisconsin Senator Joe McCarthy accused hundreds of federal government workers, entertainers, academics and others of being Communists.  Public lives and careers were shattered; families were broken up, fear was rampant.

Let’s face it, however. Many Americans—liberal and conservative—harbor some level of suspicion about government.  We see the dominance of money in politics, we understand the powers behind the thrones of many of our leaders, we have been assaulted by the stories of secret torture, and so on. The particular suspicions held by conservatives or libertarians may be different from my own, but they all work to deepen our mistrust of government.

But the President’s allegations are of a different order; accusations about a secret government are not just Trumpian throw-away lies.  They have deep implications for the unmooring of democracy.  Three-fourths of respondents to a recent Politico poll say they believe such a deep state definitely (27%) or probably (47%) exists in the federal government.  These numbers are not, of course, solely due to the Trump’s accusations, but the accusations reinforce paranoia and delegitimize government.  When a large majority of Americans believe that those running the country belong to some secret cabal, participation in the normal channels of democracy can seem futile.

References to the criminal deep state are especially pernicious because they play upon defined and undefined fears that all of us feel from time to time.  But when these fears are blown out of proportion by the country’s leader, our paranoia becomes dangerous.  I have referred to the necessity of basic trust in government frequently (here, here, here, and here).  The reality is that democracy is fragile.  It does not magically maintain itself but must be undergirded by citizens’ trust.

We do ourselves and our country great disservice if we accept the President’s distortions without meticulously examining them for what is true and what is false … and then speak out to friends, especially those on the other side of the political divide.  The fate of our democracy hangs in the balance.