No, Trump Won’t Doom Conservatism

As the calendar prepares to turn, one fact has remained constant: Donald Trump is the clear leader in Republican Primary national polls. He is almost certainly trailing Ted Cruz in Iowa but maintains a large lead in New Hampshire where establishment candidates have fractured the vote and should he win there is poised for strong showings through the March 1 “SEC Primary.” While national polls have dubious predictive power, establishment types are increasingly antsy about Trump’s staying-power as they (correctly) believe he would struggle in a general election. Take George Will for instance who last week declared in a column entitled, “If Trump wins the nomination, prepare for the end of the conservative party”:

“It is possible Trump will not win any primary, and that by the middle of March our long national embarrassment will be over. But this avatar of unfettered government and executive authoritarianism has mesmerized a large portion of Republicans for six months. The larger portion should understand this:

One hundred and four years of history is in the balance. If Trump is the Republican nominee in 2016, there might not be a conservative party in 2020 either.”

Now, there are two issues with Will’s column. First, a Trump nomination would not be the end of a conservative party in America. Presidential campaigns lend themselves to hyperbole (“this is a mildly important election” doesn’t turn out the vote so well), and that is the case here. Given his poor standing with Hispanics and women voters, I agree Trump would likely lose and lose badly. The only path I see would be choosing someone like David Petreaus as his Vice-President (to calm voters antsy about making Trump Commander-in-Chief) and go for an Upper Midwest strategy. Against Hillary Clinton, one would have to put the odds of a Trump victory at less than 15%, barring some dramatic economic collapse or terrorist attack that destroys President Obama’s popular standing.

Even if Trump lost though, the GOP is not doomed. Surely, many prognosticators saw disaster for liberals after Michael Dukakis suffered the third straight Democratic ignominy in 1988. In the three elections from 1980-1988, the GOP carried the electoral vote a combined 1440-174. That is called being lost in the wilderness, yet Democrats have proceeded to win 5 of the next 6 popular votes, and in 2008, America elected the most liberal man to be President since at least Lyndon Johnson in 1964 (Ideologically, Obama is probably to the left of Johnson, he is merely less effective at making his agenda law). My point here is that political persuasions are “stickier” or more entrenched than we sometimes give them credit for, and to suggest the GOP is one defeat from obsolescence is over the top, particularly with Republicans controlling the House and 31 Governor’s Mansions from which conservative reform agendas are being carried out. Would a third term for the Democratic Party have significant long-term consequences? Yes. Is the conservative party a terrible candidate away from disappearing? No.

Second, there is this sense that Trump is a cancer on conservatism when in reality Trump is exploiting a cancer that has already grown on the movement. Will is right to call out Trump’s constant boasting as a sign of a lack of self-esteem (this is an ironic charge from a man whose columns read like a self-conscious showcase of as many inane, multisyllabic words as possible in an effort to prove his intellectual superiority), and I too am no Trump fan, taking serious issue with his rhetoric, past policy flip-flops, Muslim travel suspension, and so forth. Trump is no typical conservative by any stretch, but his popularity in conservative precincts is easy to understand.

The intellectual, donor, and corporate establishment has grown increasingly adrift from the base with a rising elitism poisoning the conservative movement. Elements of the party have morphed from capitalist to corporatists with large, entrenched firms enjoying a convoluted tax code that serves to raise the barriers to entry. As explained in a bit more depth below (and in much more detail here) economic policy coming from the party seems to either reflexively reflect 1980s policies or benefit the monied interests. I’ve always struggled as to how a conservative can be an elitist given that the ideology is one optimistic about the skills of ordinary people. We have so much faith in man, we prefer to endow each individual with power rather than leaving it the hands of centralized bureaucrats who deem themselves experts. Conservativism is inherently populist, but often one can feel conservative DC elites looking down at Trump supporters and the citizenry at large.

Justifiably or not, the Republicans are viewed as the party of the elites, and that is problematic. Just examine the 2012 exit polls:

Romney lost 35%-63% among voters earning under $30,000 and 42%-57% among voters earning $30,000-$49,999. Romney lost the overall popular voter 47.2% to 51.1%, but if he had done 5% better among those earning under 50k (going from 38% to 43%), the popular vote would have been 49.2% for Romney to 49.1% for Obama. Obama still would have likely have won the Electoral College (Romney getting 253 instead of 206 votes, short of the 270 needed to win), but it would have been closer. For all of the talk about doing better with Hispanic voters to win elections, doing better with the working and middle class is critical for the Republican Party to win national elections (admittedly, doing better with the working and middle class likely entails doing better with Hispanic voters).

53% of voters thought Romney policies favored the rich; only 34% thought the middle class was favored. 21% of voters believed the most important quality was having a President who “cares about people like me.” Romney lost those voters 18% to 81%, and this block of voters was decisive in delivering the election for the President. Republicans have a clear empathy problem. Now, there are two possibilities here. One, the republicans offer the right policies for these voters and are doing a terrible job communicating them, or two, the policy mix is bad for these voters and they are acting rationally by voting for Democrats. As the Democrats are keen to offer free stuff, winning the communications battle will invariably be tough, but there is definitely room for improvement, especially as conservative policies can help lift working people more than an entangling, 20th century safety net. Plus, republicans don’t have to win these voters outright, just do less badly.

There are strains in the Republican Party that are offering wise policies, focused on improving and expanding the earned income tax credit, eliminating marriage disincentives, and successfully employing charters schools as Washington DC has done. Leaders like Paul Ryan, Mike Lee, and Marco Rubio have each come up with some good proposals in these areas, but Republicans have failed to come out with a comprehensive economic policy that all Americans, poor, middle class, and wealthy, can buy into in part because few in the party seem to recognize that the past 15 years, under both Presidents Bush and Obama, have been lousy for the middle and working class. President Bush’s economic record is far from perfect. This country has lost 5 million manufacturing jobs in 20 years and seen real median income declines since 1997:

Under President Reagan, America saw stellar economic growth, but his policies addressed specific problems, including a lack of capital and squeezed margins. His tax cuts were aimed at fixing specific problems and are not a timeless solution in and of themselves. Today’s problems are different with a job-skills mismatch, burdensome lending regulations, inefficient deductions, and internationally obsolete code, and the solutions need to address these ills while recognizing policies must help the working and middle class lift themselves up (different from the Bernie Sanders approach of tearing the rich down). Has any somewhat viable Republican Presidential candidate made an argument they will help workers?

Trump has. The premise of his campaign is helping workers. He has said Super PACs screw Americans because politicians become beholden to corporate donors. Our free trade agreements have cost us jobs because our leaders are terrible negotiators (and if you were one of the 5 million who lost a manufacturing job, you would have some sympathy for this argument). Over the summer, Trump said, “the middle class is getting clobbered in this country. You know the middle class built this country, not the hedge fund guys, but I know people in hedge funds that pay almost nothing and it’s ridiculous, OK?” It is unsurprising that Trump has built a strong base of support amongst working and middle class voters in GOP primary polls because his campaign is directly targeted to them.

Now, this is separate from arguing Trump policies would actually help the middle class (this is very debatable), but he, being a master brander, has done an excellent job selling it. It has been easy for him because the establishment has shown no interest in reaching out to these voters in years. Did Romney ever prosecute the case as to how ordinary Americans would be better off? Exit polls (and memories of the campaign) say “no;” the establishment has no built in credibility. We’ve gone from Reagan calling all Americans “heroes” to Romney decrying “the 47%” behind closed doors. Plus, no other candidate has made a compelling argument to these voters. Ben Carson has an inspiring life story but has been unable to offer a specific policy vision on economic or foreign affairs. Jeb Bush is just constitutionally incapable of making compelling arguments, and while he has promised 4% growth, he has never articulated how his plans ensure the growth will be enjoyed by all. Rubio hits some of the right notes, like an expanded-EITC, but has focused on foreign affairs (he is best positioned to appeal to working people in my opinion but has failed to make a clear effort). Ted Cruz’s tax plan would likely hurt workers and creates a VAT that disincentivizes employment—it’s an unimaginably idiotic tax plan to be frank.

Trump’s competitors have made it easy, proving utterly incapable or uninterested in offering an inclusive economic message. Given 15 years of stagnation and a republican establishment that has made little substantive effort to include them, working and middle class voters are understandably frustrated and willing to go for an unorthodox candidate. Enter Trump who has a message tailored for them and who has faced no competition on the economic populist front. No wonder he polls so high.

Trump isn’t a doctrinaire conservative, but conservatives have failed to update policies or explain how our vision economic plans can help all Americans. That is the movement’s failing. Blaming Trump voters for being unprincipled for backing a (charitably) inconsistent conservative has proven pointless in bringing down his support and is perhaps unfair to his supporters. If you offer voters nothing, don’t be surprised if they look elsewhere and ignore your warnings. Voters are perhaps willing to look past Trump’s faults because they see no alternative—what has the conservative movement done for a steelworker the past decade?

By failing to build a conservative economic plan that can work for all Americans and then failing to sell our vision in a clear and convincing fashion in all corners of the country from Wall Street to 125th Street, we have left the field wide open for Trump. Within reason, conservatism and populism are not at odds, for what good is a policy that does not benefit most of the populace? Who is better positioned to argue that their policies will help people than the party promising to return power to the people? If there is no conservative party in 2020 or 2024, it won’t be because of Trump. It will be because Republicans have failed miserably in being the Opportunity Party.

When Discrimination is OK

Over the past week, a Massachusetts court case, Barrett v. Fontbonne, has generated quite a bit of interest and justifiably so. Put priefly, Fontbonne is a Catholic school that had hired Mr. Matthew Barret to be its “Food Service Director” but withdrew the offer after learning Barrett was in a same-sex marriage (he named his husband as his emergency contact). Barrett sued, citing employment discrimination, and won the case (you can read the opinion with more detailed facts here). This case is genuinely fascinating and challenging, and Fontbonne hopefully appeals (as I believe they should win the case). I would argue all Americans should hope this case reaches the Supreme Court as there are competing rights (nondiscrimination and religion) with strong arguments that deserve to be heard and ruled upon by our leading constitutional thinkers. Those who don’t feel some pull towards each parties’ position, either legally or emotionally, are probably either hopelessly partisan or simplistic in their analysis.

I also would make a clear distinction between what Fontbonne ought to do and what it is legally compelled to do. As a matter of policy, I think Fontbonne should not have rescinded its offer to Barrett due to his sexual orientation. I struggle to see how his personal life would have impacted his ability to do his job, and hiring someone does not have to be an endorsement of everything they do in their personal life. The school’s distinction that its decision was not based on Barrett’s orienation but on the fact he was in a same-sex marriage is dubious at best. The two facts are inextricably linked, and this argument suggests that by extending him a right (marriage) the government leaves him more at risk in other areas (employment). Barrett was not hired because he was gay; Fontbonne was wrong morally, theologically (again just my opinion as a non-expert, but I believe Jesus surrounded himself with many sinners and outcasts), and certainly from a public relations perspective (likely not the best way to appeal to younger Americans to grow the faith). However, policy errors by an institution are not necessarily illegal, which is the case here. If stupidity were a crime, yours truly would be writing from behind steel bars.

Religious freedom, enshrined in the first amendment, is a fundamental right in this country, a foundational principle. At the same time, not being discriminated against is also critical. In cases like this, these rights need to be balanced, and there is ample legal precedent on which to rely. The Supreme Court buckets groups into three classes when reviewing government laws and discrimination, applying different standards:

  1. Suspect class: these include race, religion, and national origin. Any law impacting this class must pass strict scrutiny (the highest standard), meaning it serves a compelling government interest, is narrowly tailored, and is the least restrictive means to achieve that interest. Few laws can survive strict scrutiny. (Ironically, one of the court’s worst decisions, Korematsu, was one in which the government met this burden).
  2. Quasi-suspect class: Gender is the primary example. Any law impacting this class must pass intermediate scrutiny (the middle standard), which means it serves an important government interest.
  3. Other classes: When not dealing with a minority of some sort, all the government needs to show is a rational basis for its law (the easiest standard). Here a law must be rationally related to a legitimate government interest.

Why is this legal tangent relevant you ask? Because, the classes in the case impact the scrutiny applied, thereby pushing the scales in a certain direction. For instance, a law that infringes upon the rights of the “other class” to help a suspect class likely survives as the level of scrutiny is lower and vice versa. The Supreme Court has been silent as to what class homosexuals belong, though Windsor (overturning the Defense of Marriage Act) suggests the court sees them as a quasi-suspect class. Frankly whatever side of this case you are on, it would be useful for the Court to hear it (or a similar one) just to get it on the record as to what level of scrutiny it is applying so that all courts around the country are ruling consistently. For twenty years, the Court has gone out of its way to avoid this issue explicitly, but it should make clear what it has implied, that homosexuals are a quasi-suspect class.

What does this mean? Any law seen as discriminating against them must serve an important government interest. So an exception to Massachusetts’ employment discrimination law permitting discrimination must be important. Protecting the freedom of religion would seem to meet this burden. Now, religion also has an interesting legal history. Sherbert v. Verner, a landmark case, determined that in matters of religion, the government must have a compelling interest (ie strict scrutiny). Under an Antonin Scalia opinion in Employment Division v. Smith, the standard seemed to shift demonstrably lower (according to some) to “general applicability” whereby laws that were religiously neutral and generally applicable (ie belonging to a religion opposing taxes does not allow one to avoid generally applicable income taxes) can survive. In response, congress passed, almost unanimously, the Religious Freedom Restoration Act (RFRA) to force the court to use strict scrutiny in religious matters. While the court later held the RFRA constitutional in federal matters, I still have constitutional reservations and generally oppose RFRA at both the Federal and State levels (legislatures shouldn’t tell courts how to rule in my opinion).

Using strict scrutiny, the question is whether the government has a compelling interest to force religious institutions to hire gay people? Remember on the flip side, Fontbonne only needs to show the religious freedom is an “important” interest. The scales seem decidedly tipped in Fontbonne’s favor. Now, the court is not forced to use this standard in state cases, yet using “general applicability” doesn’t change the outcome (the difference between this standard and the Sherbert test is less than Congress’s reaction would suggest). A religious objector needs to show a hybrid right, ie something beyond freedom of religion. Fontbonne has a second right here: association. A religious organization has latitude in who to include in its private organization, certainly more so than a non-religious, public entity. A religious institution can choose to associate only with members of its faith, otherwise clergy selection processes would be illegal.

Now, the Massachusetts court dismissed this argument, noting that by employing and accepting some non-Catholics, it loses this right. That argument is lacking, though I understand the rationale. No one would argue for instance (I hope) on a religious organization’s ability to discriminate in selecting members of its clergy (ie Catholics can require non-married Catholics be Priests and reject others out of hand). However, a food service director is not a clergyman, and per the ruling, once the school decides to employ/enroll non-Catholics, it loses protections. Essentially, the court argues religious organizations cannot be hypocrites. It can’t one day hire an atheist, the next day, fire a Jew. The rationale here is somewhat compelling.

However, now we have secular courts that have no professed proficiency in theology ruling on when religious institutions are employing some people who lead lives counter to their faith. This view also disproportionally impacts smaller religions, who need more protecting. A small faith (think a Jewish school in Montana) would likely have a hard time employing a full faculty within its faith. By virtue of its small size requiring it to hire some outsiders, does it lose protections? That doesn’t seem equitable. If anything, small religions are more at risk of marginalization and need more protection. This ruling undermines that and does the reverse.

The Court has dealt with this in a case where religious institutions lost, Lemon v. Kurtzman, which determined laws that result in “excessive government entanglement” with religious institutions are unconstitutional. In this case, having a law that requires courts to match compare employee rosters to religious tenets to see whether an institution has forfeited religious and association protections is excessive entanglement. Our courts should not be in the business of determining whether a religious institution is hypocritical. Under either standard, Fontbonne should win.

What is most interesting is if the Court were to make homosexuals a suspect class (very unlikely), putting both sides on the same playing field. I would again side with the religious institution as a religious carve-out would seem to merit “narrowly tailored” requirement while forcing a religious institution to hire anyone doesn’t seem to meet that as evidenced by the entanglement issue.

The Fontbonne case deserves the attention it had received, if not more, though the legal questions are complex. While Fontbonne’s actuals are puzzling, the government legally cannot and should not force religious institutions to hire people. Yes, a food service director is in a greyer area than a clergy member, but do we want courts determining where the black and white stops and where the grey begins? That is a recipe of ungodly bureaucracy, entangling government in religion’s business.

We are better served maintaining separation, giving a religious institution the ability to employ whomever it wants. Sometimes, the result seems awful, but government mandates could have a chilling impact on religious freedoms and risks further infringement down the road. What happened to Mr. Barrett was awful; that doesn’t make it illegal. We need to reaffirm Lemon; this country is best served when government does not entangle itself with religious institutions, either to their benefit or detriment.

The Paris Agreement: Yet Another Meaningless Deal

On Saturday, nearly 200 nations signed a climate pact that President Barack Obama called a “turning point for the world.” Obama argued this agreement was the one “the world needed.” Upon reading the actual text of the deal, it would appear the world didn’t need very much, if the President’s claim is to be taken at face value. In the end, this deal is as fanciful and toothless as the Kellogg-Briand Pact of nearly a century ago that banned war in the wake of World War I. While the failings of this deal are unlikely to be as grave (World War II was pretty awful, you know), it suffers from the same fatal flaw: no enforceability.

This agreement doesn’t actually do anything; it is merely a voluntary plan whereby nations will unilaterally cut emissions or something. The over-arching goal is to keep global temperatures rising 2 degrees (Celsius) from the current expectation of some in the science community for 2.7-3.7 degrees. If this voluntary deal works really well (!!!), the agreement leaves open the possibility of pushing for a more aggressive 1.5 degree target.

This agreement “invites Parties to communicate their first nationally determined contribution no later than when the Party submits its respective instrument of ratification, accession, or approval.” This agreement merely invites nations to come up with their own plan to bring down emissions to unspecified levels to lead to less climate change. Does that sound vague? Don’t worry; this agreement also creates an “ad hoc working group” to monitor nations’ progress because groups of bureaucrats are renowned for getting things done.

Signing to this deal merely signifies the “Voluntary participation authorized by each Party involved.” Are there any enforcement mechanisms that punish nations for failing to bring emissions down (or for some developed nations, rise more slowly)? Nope. We are operating solely on the trust system—no way that could produce underwhelming results. Some hailed the underlying goal of the deal as ground-breaking: “Parties aim to reach global peaking of greenhouse gas emissions as soon as possible.” Others may contend that the phrase “as soon as possible” means absolutely nothing and gives offending nations plenty of room to maneuver if confronted (i.e. more action just wasn’t possible). This deal also says developed nations are to give developing ones at least $100 billion/year by 2020 to help fund their development, thereby making income redistribution an international affair. Good luck getting everyone to write those checks…

Those who are unconvinced climate change is the world’s most pressing problem and aren’t prepared to crush the economy to cut emissions should actually be thrilled by today’s deal as no new policies have to be implemented. If we actually wanted to cut emissions, any deal needs to have set targets and strict ramifications for violations (for example, automatic WTO admissible tariffs to hurt the economy of offenders). Otherwise, developing nations, like China and India, will cheat, pointing to the fact there were no restrictions on the West’s industrial revolution a century ago. Of course, they benefit from our revolution (India doesn’t have to invent the car for instance), so there should be restrictions if we are to have some, though perhaps not quite as onerous for a bit of time. Adhering to unenforceable deals threatens to leave the American economy relatively uncompetitive as other nations’ flout the deal’s requirements.

Fortunately for the climate alarmists in our midst, the private sector is already helping to solve the problem. Our abundance of natural gas is hurting coal, and with or without government regulations, coal will likely go the way of the dodo bird in this country over the coming decades. As we export LNG, energy production around the world will only get cleaner. Automotive emissions keep improving, and the advent of the electric car will only help. Continued advancement in battery technology could facilitate a smaller, cleaner grid while improvements in transmission will make nuclear more viable in more regions. Even in countries like China, popular discontent over ridiculous pollution levels could force the regime to act over time if only to keep the public happy. Indian cities aren’t far behind.

However, our President is a climate alarmist, which leaves one befuddled as to why he would be happy with this deal that is voluntary and lacking enforcement mechanisms. This climate pact is strikingly similar to the Iran Deal, which is nonbinding (heck no one even signed the agreement!) and has laughable verification measures (not to mention the fact that re-imposing sanctions with Russian approval and European unity is as likely as Hell freezing over, unless of course unfettered climate change here serious impacts the temperature down below…).

Our President seems to have a lot of trust in foreign powers to do the right thing despite their national interest. It’s a fascinating turn for a President who so recognized the free-rider problem, he coerced Americans to buy healthcare insurance or face stiff financial penalties (the individual mandate). Of course, if the insurance under Obamacare is as good and affordable as advertised, wouldn’t people be clamoring for it and not need coercion? I guess, unlike China and Iran, Americans can’t be trusted to the right thing.

Moreover, our President may see no need to make legally-binding agreements since he never feels the law binds him as evidenced by the lawless immigration executive orders and potential one on Guantanamo Bay. Ultimately, our President seems to enjoy doing things for the sake of doing things. That is how Democrats inevitably react to gun violence (just pass a law, even if it wouldn’t have stopped this shooting). Obama wanted a deal with Iran to check off a box on his legacy, even if the deal was a poor one. Similarly, he wanted to do something on the climate. We can all sleep easy and claim the moral high ground now that this high-sounding, completely unenforceable garble has been agreed to. In the view of our leadership, just doing something is an achievement, results be damned. That is the only way to explain the Iran Deal, the Paris Accord, gun violence reactions, and our tepid ISIS bombing campaign. At least we can feel good about ourselves as the world implodes!

Now, I don’t believe economy-crushing cuts make sense, but it astonishes me how horrendous of a negotiator our President and his Secretary of State, John Kerry, are. They are either delusional or lying when calling such a deal as this a groundbreaker. If we ever want to deal successfully with China or Putin or Iran, this naïve idealism is dangerous.

Recently, Obama and the Left have often linked climate change to terrorism. Well, the Paris Agreement will do as much for emissions as those 20 bombings/day have done to roll back ISIS.

Just like coal, this deal will end up being a puff a smoke, not worth the two weeks of diplomats’ hot air blown in Paris.

Trump Isn’t the Problem; He’s the Symptom

On Monday afternoon, Donald Trump announced a plan to ban Muslims from entering the United States, sending shockwaves through the political universe. The plan drew condemnation from most of the chattering class and his fellow candidates, though undoubtedly, many of his supporters were on board with the thrust of the plan, even though Trump suggested even American citizens, who happen to be Muslim, will be banned from re-entering the country. To be frank, this plan is abhorrent and repulsive to our constitutional ideals and merits unequivocal rejection. It is now easy to cast Trump as a problem (and for the GOP’s electoral chances in 2016, I would argue everyday he dominates the news cycle is problematic), but in reality, Trump is merely the symptom and not the problem itself.

Focusing on the plan first, it manages a perfect trifecta: unconstitutional, irrational, and unworkable. Working backwards, it is unworkable because it is absolutely impractical to know for certain whether or not a foreigner, seeking to enter the country as a tourist, is a Muslim. Are we going to ask for religious documentation? How do we know that a Radical Islamic terrorist isn’t merely pretending to be a Christian? Proving a negative (ie that one is not secretly a Muslim) is a dead end. Immigration would ground to a total halt. Plus in many of the most dangerous places, verification is an impossibility, hence the House plan to temporarily pause the Syrian refugee program.

It is also irrational because it misplaces the threat. Do we feel better about a businessman from Vancouver, who happens to be Muslim, visiting family in Seattle or a self-declared non-Muslim from Raqqa, Syria coming to the country? Under the religion-only test, the Syrian gets through and Canadian gets blocked. Does that seem rational? Clearly, radical Islam is a serious problem, but not all of Islam is. Any ban should focus on specific countries not religions.

Trump understands that Americans are scared, and he is right that we need to button-up our immigration policies; he just does so in an ineffective way. The fact is the threat to this country comes from ISIS-controlled territory in Iraq, Syria, and Libya or al-Qaeda controlled territory in Yemen and Afghanistan as well as portions of North Africa (or from Westerners who travelled and were trained in these places). The rational policy is tighten policies for all people, who either live in or have visited those countries, irrespective of their faith. That means suspending the refugee program until verification concerns noted by Obama’s FBI Director James Comey and others have been rectified. It also means altering our visa waiver program (the bipartisan Feinstein-Flake bill is a very good start) whereby a French citizen can go to Syria, develop skills to launch an attack, go back to France, and then come to the US without a visa to launch an attack here. Anyone visiting a hotbed of Islamic terror should be required to get a visa, irrespective of what country they are from and what their faith is. These policies would do far more to keep the bad guys out while avoiding the clear moral issues of blindly banning all Muslims.

Where the Trump plan totally goes off the rails is its treatment of US citizens who happen to be Muslim. Entering the country is a clear, fundamental right that Trump is depriving based on one’s religion without any probable cause. That is a blatant violation of the First Amendment right to freedom of religion. Attacking people for their faith is the domain of the left, as evidenced by their attacks on the Sisters of the Poor and Christian florists. Trump also suggested “closing” parts of the internet up. To those who would protest about freedom of speech in the first amendment, he would call them “foolish people.”

It is easy to defend constitutional rights during tranquil times, but the true mettle of one’s commitment to our ideals and freedoms shows during dire times. Trump is flunking that test, promising to shred the rights of Muslim citizens, functionally blockading them from leaving and banning them from returning, in the name of protection. Again, I ask are you more concerned about a Muslim American spending a weekend in Toronto or a detached young male who is a non-Muslim American (unaffiliated with an aid group for argument’s sake) in Syria. Freedom of religion is the quintessential American right, and we as conservatives have fought hard to protect it. To quote President Ronald Reagan from 1984: “government should not make it more difficult for Christians, Jews, Muslims, or other believing people to practice their faith.” Trump would do exactly that, and that is deplorable.

It is the nature of mankind to trade some freedoms for the hopes of safety, a natural proclivity Trump is playing to. Charlatans in the past like Senator Joe McCarthy fed off this fear. Democrats are currently using this fear in an effort to strip due process rights away from some looking to buy guns. A low point in this nation’s history was the internment of Japanese citizens where our fear led us to strip fellow citizens of their rights just because of who they were. Tragically, the Supreme Court upheld this policy in Korematsu v. US. I would point you to Justice Frank Murphy’s powerful dissent, in which he declared (emphasis my own), “But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.”

America does not stoop to the level of our adversaries to beat them; our constitutional ideals are meaningless if we are so fickle and weak-kneed. We punish those who themselves commit wrong, not just belong to a certain group. We mustn’t repeat the tragedies of the past, by stripping rights in the supposed effort to protect ourselves. The inclination can be strong, but we must rise above it and keep our dignity for in the words of Alexis de Tocqueville, “America is great because she is good. If America ceases to be good, America will cease to be great.” We must stand united against this irrational, ineffectual, and unconstitutional policy.

Republicans and conservatives need to stand up to Trump’s divisive rhetoric. We have worked hard for years to make clear we are at war with Radical Islam but not all of Islam; in fact, we need moderate Muslim leaders themselves to stand against radicals. Trump’s plan lumps in all Muslims, threatening to undo this work. It also makes it easier for Democrats, hobbled by slavish political correctness, to avoid the term Radical Islam. Some on the left will also undoubtedly use the Trump plan to marginalize other GOP plans on refugees (like the House bill) as racist and not as the much needed reform they are.

After clearly going past the line (if he hadn’t already), it is now easy to dismiss Trump as the problem whereas he is really the symptom of a bigger problem. An increasing portion of the American public, particularly the working class, feels disenfranchised. The whole public is scared; prior to the San Bernardino terror attack, only 33% of Americans approved of Obama’s handling of ISIS, and only 38% approved of his handling of terrorism (from CNN-ORC). Obama’s consistent dismissal of ISIS has perhaps irreversibly damaged his credibility on national security. Trump’s tough talk is reassuring, even if the underlying policies aren’t feasible.

By the same token, the Republican Party has been an abject failure when it comes to explaining how its policies will help the working class, perhaps because much of its donors are corporatist Wall Streeters. In 2012, Mitt Romney lost voters whose top issue was having a President “who cares about people like me” by a stunning 81-18% margin. He never articulated how his policies would help ordinary, working Americans. At this point, no serious Republican Presidential contender, apart from Trump, have made a serious stride in this area (though Rubio has been trying harder than others, and hopefully, Paul Ryan will be a thought leader in this area). Perhaps recognizing this country has shed 5 million manufacturing jobs in 20 years, hurting millions of Americans, Trump has pledged to go after China and Mexico. Will these policies work? Not necessarily, but he at least provides the illusion of caring.

For many Americans, the past 20 years have been hard. While Clinton oversaw an economic expansion, manufacturing sputtered in his second term and his foreign policy left us less safe. While Bush’s ability to keep us safe after 9/11 is a tremendous accomplishment, his economic policy is mixed and he is not blameless for the financial crisis. Under Obama, our record has been tepid with inequality worsening while his dithering in the Middle East has left us more unsafe. The establishment and mainstream political parties have failed many Americans, and it is no wonder they have looked elsewhere, to someone out of the political class addressing their security and economic concerns, Donald Trump.

That is why the efforts to marginalize Trump based on his egregious rhetoric have failed spectacularly. The establishment is pointing out to voters what the establishment doesn’t like, but these voters have lost faith in the establishment because it has failed to deliver for them. The only way to attack Trump is to effectively argue he, one of the world’s greatest marketers, is selling a false bill of goods and won’t deliver. Someone must also step up and detail an economic vision that re-enfranchises a middle and working class that has been left behind.

Until then, we are destined to hear this self-aggrandizing candidate offer more unserious if not offensive plans while his poll numbers likely stay high. Trump’s anti-Muslim ban runs counter to the values we espouse and would be a dangerous degradation of constitutional rights. This has to be the impetus for other candidates to actually offer plans that will bring the middle and working classes into the fold. Unless someone else offers a compelling vision to these voters, the Trump phenomenon isn’t going away, no matter what he says.

Demagoguery and Destroying Due Process Won’t Solve Gun Violence

After the horrifying murders in San Bernardino Tuesday and Colorado Springs last Friday, democrats are following the advice of former Obama Chief of Staff and current Chicago Mayor Rahm Emanuel: never let a “serious crisis go to waste.” Emanuel, of course, is so morally bankrupt he apparently slowed an investigation into the death of an African-American teenager at the hands of a Police Officer to preserve his re-election chances. Sensing political advantage, democrats are out in full force, attacking republicans, demonizing those who pray for shooting victims, and urging new laws irrespective of their efficacy. They have entered full “do something for the sake of doing something even if it achieves nothing” mode while poisoning our political discourse, thereby making it harder to actually solve the problem of gun violence.

Make no mistake, gun violence is a serious problem. However, we should note that gun crimes have been halved since the early 1990’s while violent crime is back to 1970’s levels. I say this not to diminish current violence, which remains intolerably high, but to provide context as facts tend to improve the quality of solutions put forth. Even though we are safer than ever before, we are averaging roughly 1 mass shooting (the FBI defines a mass shooting as 4+ victims; depending on definition parameters, there have been anywhere from 70 to 355 “mass shootings” this year) per day. Yet for many, it feels as though violence has escalated to unprecedented levels in recent years. For this, I would point to the proliferation of social media and 24-hour news channels, which make us far more aware of these acts of violence. On net, this is a good thing as the constant reminder of human suffering will hopefully further our resolve in solving the underlying problems that beget such violence. Sadly, some, typically but not exclusively, on the left exploit these tragedies to whip up a frenzy, divide us, and all but suggest the NRA’s millions of members are callous, blood-thirsty monsters.

Sensing an opportunity to feed off Americans’ heartbreak, Democrats are pushing reforms that would do little to stop gun violence and severely undermine Americans’ fundamental rights. Let’s focus on Senator Dianne Feinstein’s proposed amendment (supported wholeheartedly by Obama and Senator Harry Reid) to block Americans on the Terror Watch List from purchasing guns. Republicans kept this proposal from becoming law by a vote of 45-54. Now, one does not need to have much political acumen to recognize the Feinstein proposal would poll extremely well (my bet would be 90-10 or better initially); after all, who wants terrorists to get guns? However, the facts are a bit more complicated, and strong polling doesn’t make it wise policy.

For perspective, the terror watch list likely contains the names of about 1 million Americans. I would note that the Terror watch list is far more encompassing than the No-Fly list, which includes about 800 Americans. In the past even The Huffington Post has ridiculed the relative ease with which one could get on the terror watch list, and I would emphasize authorities merely need “reasonable suspicion” to put someone on the list. This is a different, lower standard than the one our system of due process demands in criminal cases (beyond any reasonable doubt). That is critical because the Feinstein proposal would strip Americans of a fundamental right without affording them due process. (As an aside, democrats blocked Sen. John Cornyn’s amendment that would have given authorities 72 hours to ask a court to block a gun sale to someone on the watch list thereby preserving due process while achieving what democrats wanted. I will leave you to decide whether the left was interested in merely scoring political points or in solving the problem.)

Our constitutional architecture affords the preservation of Americans’ fundamental rights, which we may only be deprived of with “due process of law.” The Supreme Court reaffirmed that individuals have a fundamental right to bear arms in 2008’s DC v. Heller. Due process includes things like facing one’s accuser, having a jury of peers, the presumption of innocence, and so on. The Feinstein bill undermines this basic tenet of our Republic. I ask:

  1. Should the government be allowed to do warrantless searches of Americans on the Watch List whenever and wherever it wants?
  2. Should the government be allowed to regulate the speech of those on the Watch List or bar members from associating with certain other people?
  3. Should the government be allowed to proactively detain people on the Watch List for indeterminate periods of time?

I expect (and certainly hope) you would answer “no” to all these questions. Even though we want to stop suspected terrorists, we as a society recognize that fundamental rights are sacrosanct, and abridging them is very serious (and dangerous). As such, we afford suspects a fair legal process that puts the burden on the government to prove its case in a court of law before punishing the accused. There are times that our nation has grown emotional and forgotten this system, and it has been a stain on our history. In particular, I point to the internment of Japanese-Americans, violating their fundamental rights without due process. Shamefully, the Supreme Court upheld internment in Korematsu v. US. That decision, along with Dred Scott and Plessy, still impugns the reputation of our highest court.

I do not think the Feinstein proposal, had it been enacted, would ever be so damning as Korematsu, but violating fundamental rights has virtually never looked wise in hindsight. Some undoubtedly have the greater good in mind in their support of this proposal, but sadly, in no cause has more harm been done that of the greater good. Such thinking too often descends into an “ends justify the means philosophy” that airbrushes increasingly grievous wrongs in the name of safety, supposed equality, or other catchy slogans (“workers of the world unite”…). The fact is that gun ownership is a fundamental right, and stripping such rights is anathema to our values.

Yes, those on the Watch List can appeal to get off it, but this is an individual, presumed guilty, attempting to prove innocence, throwing the basic tenet of our justice system on its head. Further, the threshold for being on the watch list is lower for being convicted of a crime, making it even harder for individuals to get off the list. We afford accused murders with far greater protections than people on this list (who can include the relatives of suspected terrorists whom have not engaged in radical activities themselves). That is unjust.

We also must reject the notion that if we don’t let someone fly on a plane we shouldn’t let them own a gun (though again I emphasize the no fly list is a small subset of the watch list. We allow most on the watch list to fly, albeit with stricter scrutiny). While again I see the appeal of the argument, there is a key distinction. Flying on planes is not a fundamental right; it is a privilege, giving the government far more latitude to regulate who flies. It is similar to how states only allow licensed individuals to drive, requiring people to pass a driving and eyesight test. These are not fundamental rights, like gun ownership, religious freedom, undue searches etc. Rather than facing strict scrutiny, the government only needs a rational basis to deny a license or keep someone from flying. Comparing guns to planes, while appealing, is ultimately flawed legally.

In reality, many on the left don’t believe gun ownership should be a fundamental right, and they push policies like this one to degrade its status over time. Let’s be honest, and have the real debate, not one that appeals to emotions during times of duress but has severe legal consequences. Let’s discuss whether we should leave the constitution as is or roll back the 2nd amendment and make gun ownership a privilege like riding an airplane. Many on the right would welcome this debate, and we should have all-encompassing discussions on guns, the acceptance of violence in society, and mental health. It is the left, which knows deep down most Americans don’t want to repeal the 2nd amendment, that is avoiding this debate.

Instead, it finds back doors that actually would not do much to solve the underlying problem to score political points and feel better since they will have done something (even if that something does not solve the problem). The Feinstein amendment would place an undue burden on Americans wrongly on the watch list, probably numbering in the tens of thousands, while likely failing to deter terrorists. Do we seriously believe someone willing to die for a depraved, hateful cause will give up and turn away from violence if they can’t buy a gun, or will they look to the black market, use our porous borders to smuggle weapons, or build improvised explosives?

If democrats were so serious about solving the issue of gun violence, why didn’t they address it via sweeping reform when Obama was President and they controlled both chambers of congress? The level of violence in this country is still unacceptable, and we all bear some blame for not doing more to help the mentally ill, the economically hopeless, and to build a culture that shuns violence. We need to get serious about these issues, but in our haste, we must remember the civil liberties on which this nation was founded and avoid the temptation to undermine fundamental rights in the name of the greater good.

There are things we can do to help the mentally ill, give doctors more power to treat, improve background checks (and unlike most conservatives I would personally support the thrust of Manchin-Toomey to close the private sale transfer, though almost no mass shootings have been committed by people using this “loophole”), and stiffen penalties for those who traffic weapons.

Maliciously attacking those who pray for the grieving will not solve the problem. Nor will pushing constitutionally doomed legislation to score political points. Rather than restricting the rights of law-abiding citizens, let’s focus on solving real problems. Over-riding due process is not the solution. It rarely, if ever, is.

A Conservative Argument for the Estate Tax

On this “Giving Tuesday,” Mark Zuckerberg announced in a public letter to his just-born daughter that he and his wife would be donating 99% of their Facebook stock. The gift is aimed at advancing “human potential and promote equality for all children in the next generation.” This gift is a massive commitment of $45 billion (at Facebook’s current share price) that has the potential to truly better the world. Don’t feel too badly for their daughter, Max, who is still in-line to get about $450 million (at today’s market price), or about 2x Mitt Romney’s net worth.

In light of Zuckerberg’s action, it seemed pertinent to briefly discuss the estate tax, and why I actually think conservatives should support it (despite deftly dubbing it the “death tax”) as I have alluded to in the past. My view is admittedly out of the orthodoxy and runs counter to our slate of Republican Presidential contenders who want to eliminate the tax.

Briefly before delving into my argument, I would emphasize my support for an estate tax in principle and not for our idiotically concocted one. Under current law, all estates beyond $5.4 million pay the same marginal tax rate of 40%. A small business owner with $30 million faces the same marginal rate as Warren Buffett, which is absurd. A primary concern of mine (and all conservatives…hopefully) is the ability of the super-wealthy to maintain their status for generations, which cannot be done at $30 million but can be at $30 billion. That small business owner or farmer also likely has less liquid wealth, and heirs could be forced to sell to pay the taxman, which argues for a lower initial rate. For illustrative purposes, I would propose a progressive estate tax of perhaps 15% for $5-15 million, 25% for $15-25 million, 35% for $25-$50 million, 50% for $50-$250 million, and 70% for $250 million and higher. I would also allow one’s tax burden to be nullified by charitable donations. That would mean the Zuckerberg estate would face no estate tax liability as it is donating over 70% to charity.

 

  1. Tax Code Efficiency

As some government spending is required and 100% debt funding is unsustainable, we have to tax. The conversation turns to how much we have to tax (dependent on how much we spend) and how we structure our tax code to generate the requisite revenue. Some liberals have this fixation on a “fair” tax code with no discernible definition of fairness. Conservatives focus on an efficient tax code, which is to say the code that has the least retardant impact on growth. Such a tax code would allow the economy to perform the best, all else equal, and help the poor and middle class improve their standing and their standard of living.

This requires taxing the least productive segments the most and most productive the least. Plus as we need to generate a certain amount of revenue, the decision to tax one party is in a sense a decision to not tax another (dynamic scoring adjusted). The estate tax generates about $20 billion in revenue per year or less than 1% of total federal revenue, so it isn’t particularly big (though I would put forth that $20 billion is still a lot of money, call me old-fashioned). If we want to generate the same aggregate revenue, we would have to increase other taxes by that $20 billion. One could argue income and corporate taxes are on today’s productivity whereas an estate tax is on the accumulated productivity of the past. Which tax would appear to drag on economic growth more?

From a different perspective, the estate tax in a sense takes money away from the ensuing generations (the heirs), and as I explain in point 2, it is very uncertain they will use the funds in a productive fashion whereas income is more clearly associated with productivity. Whom would you rather tax if you want a tax code that is likely to impact productivity the least? While there are individual exceptions no doubt, in aggregate, the estate tax targets less productive capital (from either vantage point), meaning we can tax more productive capital and labor less (to the tune of about $20 billion/year), which at the margins should support growth. (In full disclosure, I would note the Tax Foundation seems to disagree with me, though I would suggest it overstates the productivity of the estate capital taxed).

I would also note that I actually hope my estate tax generates no revenue because individuals choose to donate to charity in lieu of paying a tax to the government as my concept would allow. On the whole, charities can be far more productive users of capital than government bureaucracy. While this would lead to lower revenue, it would alleviate the welfare burden on our government, allowing spending to fall (in all likelihood more than the tax revenue shortfall).

2. Capitalism Requires Meritocracy and Efficient Use of Capital

For a capitalist society to work efficiently, individuals and organizations need to benefit based on merits. The most talented should do better and accumulate wealth because they are superior allocators of capital. It is a good thing Warren Buffett has $75 billion and your Uncle Billy doesn’t because Buffett is more adept at making wise investments and is more likely to pursue projects that generate value. Individuals should rise and fall based in large part on their ability and willingness to work hard.

Large estates are large because someone had a talent and was able to generate value. A just and efficient society is glad and benefits from their accumulation of wealth. However, there is no guarantee their children are equally talented/hard-working. Without an estate tax, those funds can be passed down to a generation that wastes the funds (the Paris Hilton’s of the world if you will). Now, some inheritors do tremendous things with the inheritance, but just as many (more I would argue) do not. In aggregate, society does best when capital is tied with those who are the best allocators of it not those with the best last name.

The American Dream is founded on the idea anyone with enough hard work can rise in society. An aristocracy enjoying the fruits of past generations’ labor can stifle advancement and lead to economic malaise, undermining the advancement of others. That isn’t a capitalist or conservative society. It is a corporatist society benefitting entrenched, status quo players. If we really thought passing down things blindly was so great, why did we ever revolt against monarchial rule? The American experiment is directly juxtaposed to aristocracy, which can arise without an estate tax.

Now, this is not to suggest passing down money is bad. It is wonderful to give one’s children the ability to do anything (problems arise when they have so much they can afford to do nothing). The ability to provide a better life for one’s children, even after one’s passing, can be a key motivator that increases productivity. The danger doesn’t lie in someone passing down $5 million, which can easily be wasted in a generation (or shorter), the danger is in the $5 billion passed down that can let numerous generations ride on the coattails of success. That is why a progressive estate tax is far more rational as it more directly deals with the meritocracy issue without punishing parents for wanting to give their kids and grandkids more opportunity.

Inherited wealth on a large scale can breed laziness and an under-productive over-class in an extreme. For families to rise, some inevitably must fall. An estate tax actually helps to engender meritocracy and thereby enhance growth over time.

3. The wealthy are already disbursing their estates to society

Since launching several years ago, Bill Gates and Warren Buffett’s The Giving Pledge has been a stunning success, getting 138 billionaires to pledge half their wealth (or more) to charity. Again, these participants, under my conception of an estate tax, would essentially face no estate tax liability, since I would fully credit any charitable contributions against the theoretical tax liability. It is telling that so many of the most fortunate choose to give away the vast majority of their wealth. They are beneficiaries of my second point (meritocracy) and understand the importance of preserving that structure, rather than letting future generations fritter away their hard earned wealth. Of course beyond the pledge, countless wealthy individuals are exceptionally generous as well.

Now admittedly, not everyone is a member of the pledge, and some would probably prefer to pass on everything. However, there is some wisdom to the crowd—that is a basic tenet of market economics. For instance, stock prices are fairly efficient and good (probably the best) barometers of fair value because a wide crowd, everyone in capital markets, is buying and selling to the crowd-determined appropriate price. History has proven it hard to beat. Perhaps, the actions of the world’s richest signals the proper policy? While I wouldn’t blindly follow the crowd, it does merit some thought. Moreover, given how much wealth is being donated anyway, the estate tax, if done right, will actually be used in very few instances.

4. It really isn’t double taxation

A common refrain conservatives use against the estate tax is that it is double taxation (taxing already taxed income). That is a bit simplistic, and I would note much of our tax structure, including sales tax, some income taxes, some capital gains taxes etc. are double-taxes. If possible, eliminating all forms of double-taxation would require increased taxation on primary forms of income (unless you are willing to shed hundreds of billion in revenue per year). It isn’t clear that is a preferable system.

Now some estates are as classically argued “double taxed,” but most of the largest estates are not. Most large estates come from entrepreneurs and business founders whose wealth is the equity in their business. This wealth is not taxed prior to death. To illustrate, let’s take the case of Mark Zuckerberg and assume he died Monday before deciding to donate money. He has $45 billion in Facebook stock, but this wealth has never been taxed because it is paper wealth. We tax income (which his Facebook holdings are not) and realized capital gains, and since he is still holding FB shares, the gains are unrealized. When he dies (in the hypothetical), he has actually never been taxed on his wealth. The estate tax would be his first tax not a double tax. Most large estates are similar; much of the estate tax revenue is primary not double taxation.

Plus under current law, the cost-basis of an estate is “stepped-up,” meaning that $45 billion capital gain disappears as his heir marks up the cost-basis to the market price at death. If you eliminate the estate tax without eliminating the step-up feature, his wealth is never once taxed as it passes generation by generation. Meanwhile, workers and W-2 earners (almost all Americans) pay taxes every paycheck. That does not strike me as an efficient structure. Now, we want to incentivize entrepreneurship as they create jobs but no taxation is a bit much. Plus, our current system, in which taxes are deferred until gains are realized, is already an incentive as it lowers the present value of an entrepreneur’s tax bill relative to an employee.

Even if double taxation is inherently bad, which is far from clear and would require a far more drastic overhaul likely resulting in a large consumption tax (which has many negative side-effects), much of the estate tax revenue, particularly from the largest estates, is not a double tax but actually a primary tax. The true picture is a bit more complicated than the political talking points suggest (how unusual!).

5. The confiscation argument against the estate tax doesn’t hold

One constant argument against the estate tax is that it is the confiscation of hard earned wealth, which the government should not be in the business of doing. We could use that rationale for any tax however. The income tax also confiscates the earnings of individuals. Taxation is inherently coercive (optional taxes tend not to generate much revenue), so unless one is willing to argue against all taxes, it is hard to justifiably singling out the estate tax. In any functioning society, there has to be some taxation to pay for public goods. Someone worth $10 billion can still pass down over $3 billion after taxes/charity, which is still a tremendous sum despite my highly progressive proposal. Every tax is by its nature confiscatory and coercive. It is inconsistent to use this argument, often put forth by conservatives sadly, to oppose an estate tax while supporting other taxes.

 

Recognizing this can be an emotional issue for some, hopefully, these arguments at least give pause for further reflection. People of good will and of different political persuasions can disagree on this issue as I don’t see the estate tax as a clear conservative/liberal issue despite how our political parties use it. Ultimately, conservatism is best served when we push for comprehensive tax reform that, yes, includes a reformed estate tax. A conservative-oriented, merit-based society that has an efficient tax code actually necessitates an estate tax, and the two most frequent criticisms of the taxes are a bit lacking.

Death to the death tax is neither conservative nor wise policy.