James Gibson: Voters Beware! TV ads may damage Supreme Court legitimacy

The right-wing Judicial Crisis Network has launched a $10 million advertising campaign to put public pressure on Democratic politicians who oppose President Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court.

While ideological fights over who controls the courts are nothing new, my research suggests that this use of political advertising to sway public opinion of a nominee may do real damage to the the institutional legitimacy of the U.S. Supreme Court in the eyes of the American people.

In Citizens, Courts, and Confirmations, Gregory Caldeira and I focused on the 2006 nomination of Samuel Alito to the U.S. Supreme Court. During that confirmation battle, proponents and opponents of Alito’s confirmation ran intensely politicized television ads trying to shape public opinion on the nomination.

Using surveys of public opinion, we demonstrated that the ads spilled over to infect support for the Court as an institution, subtracting from its legitimacy. In order to understand how and why this happened, it’s important to consider what political scientists (including Caldeira and I) have discovered is the main source of the Court’s legitimacy.

Despite the arguments of some judges to the contrary, the American people do not believe that judges somehow mystically “find” the law. They realize, instead, that judges’ ideologies matter, that liberal and conservative judges make different decisions, and that they do so on the basis of honest intellectual differences. This philosophy is called “legal realism,” and it is widely embraced by the American people.

But there is a difference between honest ideological differences and the politicization of the courts. When people believe that a judge “is just another politician,” or that courts are filled with such judges, legitimacy suffers. The American people do not think highly of politicians. Politicians are seen as self-interested and insincere. That means one can rarely believe what politicians say because they so rarely say what they believe. It is not ideology that Americans oppose, but rather the insincere and strategic way that contemporary politics is fought.

Our analysis discovered that it is not damaging to the Court when Americans recognize that judges hold different ideologies and that those ideologies strongly influence their decisions. But when judges cross the line, when they engage in overly politicized behavior—either on the bench or off—then the Court’s legitimacy is threatened. Scalia’s intemperate language in his opinions is one such example of judges venturing into partisanship; so, too, is Ginsburg’s attempt to influence last year’s presidential election. Still, events like these do not widely penetrate the consciousness of the American people, and so in the end, they likely have small effects on institutional legitimacy.

The same cannot be said of televised advertisements. Millions of Americans are exposed to these churlish and politicized ads, and so they take their toll. The lesson of these ads is too often the same: The “Supreme Court is just another political institution,” worthy of no more esteem than the other institutions of government. As this belief becomes widespread, the institution of the Court is harmed.

Our analysis demonstrates that while Alito got his seat on the Supreme Court, the court he joined had a diminished supply of goodwill among the Court’s constituents, the American people. It also makes clear that the upcoming nomination fights have implications beyond who does and doesn’t get a seat on the bench. At stake is the very legitimacy of the U.S. Supreme Court.

GibsonJames L. Gibson is the Sidney W. Souers Professor of Government at Washington University. He is the coauthor of Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People.

Rahul Sagar: Are There “Good” Leaks and “Bad” Leaks?

Washington is awash in leaks. Should these leaks be praised or should they be condemned, as the president argues? President Trump’s supporters may argue that his critics—Democrats in particular—praise or condemn leaks as it suits them. Consider the hypocrisy, they will say:

First, since Democrats criticized Wikileaks’ publication of John Podesta’s emails, shouldn’t they also criticize NSA and FBI employees who have disclosed information about contacts between Trump Administration officials and Russian officials? Second, if it was wrong for Edward Snowden to have disclosed communications intelligence, as many Democrats argued at the time, then shouldn’t they also think it is wrong for NSA and FBI employees to disclose communications intelligence about Russian contacts with the Trump Administration?

These questions aren’t trivial. So how to respond?

The answer to the first question hinges on what kind of leaks are in question—those that expose wrongful or unlawful activities as opposed to those that reveal private behavior or information. The former variety further the public interest because they bring to light information that citizens and overseers require in order to hold representatives to account. Leaks about contacts between Trump Administration officials and Russian officials clearly fall into this category. The latter variety may have only a faint connection to the public interest. It may be of some interest to have an unvarnished account of the private conduct of public officials, but this interest hardly seems weighty enough to justify the violation of a person’s privacy (especially when the violation is wholesale). Leaks about Podesta’s pizza orders and office politicking fall into the latter category.

The answer to the second question hinges on knowing when unauthorized disclosures are justified. The president’s supporters may argue that intelligence leaks are never justified because they are illegal. To this the press and First Amendment aficionados may respond that leaks are never unlawful. In their view, the Espionage Act, often used to prosecute leakers, was never meant to be used in this fashion. This response is untenable, but even supposing it were true, it is irrelevant. The Communications Intelligence Act (18 USC §798) plainly makes it unlawful—without exception—for persons to communicate or publish classified information “concerning” or “obtained by” the “processes of communication intelligence.”

So the president is right to say that government employees who have disclosed intercepts pertaining to Russian actions, and even the reporters and newspapers that have published these leaks, have broken the law. But must the law always be followed? Suppose you witness a hit-and-run. There are clear signs saying that you are not to stop or park along the road. You would of course nonetheless stop on the reasonable calculation that disobedience is justified since a weighty interest is involved, and when there aren’t other means of aiding the victim. This is the position that intelligence officers sometimes find themselves in—only they can assist the victim, because only they are aware of the harm that has been done. Indeed when the harm they are witnessing is sufficiently acute, government employees may not only be justified in breaking the law, they may even be obliged to do so.

This is not the end of the story, however. Much depends on how a government employee breaks the law. Let us return to the analogy. As you rush the victim to the hospital are you morally obliged to stop at every red light along the way? It depends, surely, on how crowded the roads are, and how badly the victim is injured. If the roads are busy, jumping a light will likely endanger more lives than it will save. But if the roads are clear, and the victim is hemorrhaging, then it is ethical to run a red light. This is the standard that government employees and the press ought to hold themselves to. If they act rashly they will end up doing more harm than good. Arguably, this is why Snowden does not deserve a pardon—he disclosed classified information without much regard for consequences, seemingly driven by his own pet peeves. Did we really need to learn precisely how the United States spies on foreign powers, for instance. Far better then to act temperately—disclosing only as much information as is necessary to kick start the processes of oversight and accountability. This may be where we are today. But it is not easy to be certain. Since ordinary citizens are not privy to the contents of the intercepts, we must hope that the government employees responsible have faithfully calculated that the cost of disclosing such intelligence is worth bearing because the danger confronting the nation is so great.

There are costs, to be clear. The recent disclosures are likely to have exposed sources and methods since Russian agents have presumably learnt that their communication channels are not secure. There are also political costs for the intelligence community, since the leaks can be—indeed are being—portrayed as an effort to subvert the president.

It now remains for Congress to credibly investigate the worrying claims that have been aired. Should the claims prove true, then we will be indebted to the individuals that have made these disclosures at great risk to themselves. Should the disclosures prove unfounded, however, then President Trump’s supporters will have reason to think that politically motivated insiders have engaged in sabotage, and recriminations may well follow. It is also worth pointing out that should Congress fail to conduct a credible investigation, then further disclosures may be justified. This would be not unlike how the driver in our analogy may drive the victim to a different hospital should the first one prove unwilling to attend to the emergency.

It cannot be said enough that with great power comes great responsibility. This aphorism applies as much to presidents as it does to the press. There are “good” and “bad” leaks. To make the distinction, officials, reporters, and citizens must think carefully about the what, when, and how of unauthorized disclosures.

LeaksRahul Sagar is Global Network Associate Professor of Political Science at New York University in Abu Dhabi and Washington Square Fellow at New York University in New York. He is the author of Secrets and Leaks: The Dilemma of State Secrecy.

Leah Boustan: What Mid-Century White Flight Reveals about the Trump Electorate

BoustanIn the months since Donald Trump’s surprise win of the U.S. presidency, two prevailing explanations for the electoral upset have emerged: either Trump voters were swayed by racism or by economic anxiety. Trump’s campaign embraced a series of racist stereotypes—Mexicans are criminals; blacks live in inner-city hellholes—but it also promised to bring back jobs to America’s declining manufacturing regions.

History suggests that the real story is probably a mix of these two explanations. Historical events that we have attributed to racism are often partially motivated by economic concerns. Looking back, we can see the reverse is also true; decisions perceived as strictly economic calculations can be tinged by racism.

One such example is white flight from central cities. In the mid-20th century, the share of white metropolitan households living in cities fell from 64 percent to 36 percent. White flight is typically attributed to racist attitudes of white residents who worried about a black family moving next door; Ta-Nehisi Coates refers to white suburbanization as a “triumph of racist social engineering.” But a closer reevaluation of this chapter in urban history reveals that white flight was motivated by both racism and economic anxiety.

In 1940, the majority of African Americans still lived in the rural South. At the time, even northern cities like Chicago and Detroit, which today have large black communities, were less than 10 percent black. Prompted in part by new factory positions opening during World War II, large waves of black migrants left the South.

Black migration definitely coincided with white relocation to the suburbs. But, many white suburban moves were unrelated to black arrivals, driven instead by rising incomes after the War, the baby boom, and new highway construction. Indeed, suburbanization was prevalent even in cities that received few black southerners, like Minneapolis-St. Paul. But there is a strong relationship between the number of black migrants to a northern city during this period and the number of whites who chose to relocate to the suburbs. For every black arrival, two whites left a typical city, a figure that puts a precise value on what contemporaries already knew: when black people move in, white people move out—à la the Younger family in A Raisin in the Sun.

Still, only a portion of white flight can be traced to the classic dynamic of racial turnover. Cities were simply too segregated by race for many urban whites to actually encounter black neighbors. In 1940, the average white urban household lived more than three miles away from a black enclave. Yet despite substantial distance from black neighborhoods within the city, many white families chose to relocate to the suburbs as black migrants arrived.

Why did white households flee black neighborhoods that were miles away? Changing city finances played a role. As southern black migrants settled in northern cities in large numbers, this lowered the average income of the urban population. Cities responded with a combination of higher property taxes and shifts in spending priorities. Indeed, some white households left cities to avoid this rising tax burden, an economically motivated choice for sure, but one that cannot be fully separated from race and racism.

We can learn a lot about the fiscal motivation behind white flight by focusing on the choices of white residents in neighborhoods on city-suburban borders. Peripheral urban neighborhoods shared the racial composition and housing stock of their suburban counterparts, and enjoyed the same local parks, bus lanes and shopping streets. Yet, by crossing to the suburban side of the border, families could buy into a different local electorate, one that was more racially homogenous and better-off, and thus able to afford quality public schools and lower property taxes. (As an aside, I personally lived in three of these border areas—Cambridge-Somerville, MA; Minneapolis-Edina, MN and Los Angeles-Beverly Hills, CA—and found crossing the border to be imperceptible on the ground.)

Houses on the suburban side of the border are always a little more expensive because they offer access to suburban schools and other public goods. Using data on 100 such neighborhoods, I found that this cross-border housing price gap grows by a few percentage points as black migrants flow into the city – even if new black arrivals live miles away. White households were willing to pay more for suburban houses not only to escape black neighbors but also to join a different tax base.

The debate about how Trump prevailed is currently a stalemate between those who point to real sources of economic anxiety and those who fall back on “it’s racism, stupid!” But casting blame on other racial groups during times of economic downturn is a tried-and-true political tool. Even if the major source of job loss in U.S. manufacturing has been automation, it is relatively easy to encourage voters to blame Chinese manipulation or greedy immigrants. Trying to separate racism from economic anxiety can obscure more than it reveals. History instead urges us to consider how economic concerns and racial animus intertwine.

**

BoustanLeah Platt Boustan is professor of economics at the University of California, Los Angeles, and a research associate at the National Bureau of Economic Research. She is the author of Competition in the Promised Land: Black Migrants in Northern Cities and Labor Markets.

Benjamin W. Goossen: How to Radicalize a Peaceful Minority

There is no better way to turn a religious minority against a nation than by maligning, detaining, and excluding them. While Donald Trump claims his ban on immigrants from seven predominantly-Muslim countries will make Americans safer, history suggests that nativist policies will backfire. Consider the case of perhaps the world’s least likely national security threat: pacifist Mennonites.

PUPinions

A poster for the 1941 Nazi propaganda film, “Village in the Red Storm,” depicting the suffering of German-speaking Mennonites in the Soviet Union, in which the protagonists valiantly give up their pacifism to fight for their race

Members of mistreated groups—whether Mennonites a century ago or Muslims today—can and sometimes do turn on hostile governments, often with alarming speed. At the beginning of the twentieth century, no one would have associated Mennonites, a small Christian group dedicated to nonviolence and charitable works, with hate speech or mass murder. At the time, most Mennonites lived peaceable existences in rural, German-speaking enclaves in Europe or North America.

When the First World War generated a global wave of anti-German and anti-pacifist sentiment, however, tens of thousands—especially those in Central and Eastern Europe—turned to militarist German nationalism.

The shift was as swift as it was shocking. “We have imbibed the notion of pacifism with our mothers’ milk,” a respected Russian Mennonite leader named Benjamin Unruh wrote in 1917. “It is a Mennonite dogma.” Yet by the Second World War, Unruh had become a prominent Nazi collaborator, aiding ethnic cleansing programs that deported Poles and murdered Jews to make way for “Aryan” Mennonites.

How could diehard pacifists turn their backs on the peaceful teachings of their faith?

Mennonites like Unruh, who had once considered violence an unforgivable sin, could be found in military units across Hitler’s empire, including on the killing fields of the Holocaust. Unruh’s own home community near Crimea—once a bastion of pacifist theology—became a model colony under Nazi occupation, generating propaganda for dispersion across the Third Reich and providing a pipeline for young men to join the radical Waffen-SS.

PUPinions

A flag raising ceremony in the Mennonite colony of Molotschna in Nazi-occupied Ukraine in 1942 on the occasion of a visit from Heinrich Himmler

Demonizing Muslim refugees today grants legitimacy to a violent fringe—one already on the lookout for recruits. These are the same tactics that, in the months before the Second World War, prompted a small number of disaffected Mennonites from places as diverse as Canada, Paraguay, Brazil, Poland, and the Netherlands—as well as my own hometown of Newton, Kansas—to travel to Germany to support Hitler’s war machine.

Most Mennonite congregations worldwide, even during the darkest days of the twentieth century, retained their pacifism. And today, the global church has taken steps to address its partial legacy of German racism. This history nevertheless demonstrates how individuals or communities can discard peace-loving traditions; by the height of Nazi expansion, one fourth of the world’s Mennonites lived in—and frequently praised—Hitler’s Germany.

Scapegoated by nativist politicians, members in Eastern Europe and sometimes beyond saw the Third Reich as a refuge from humiliation, deportation, torture, and travel bans. Despite the harrowing experiences of more than 100,000 Mennonites in the Soviet Union—where families faced civil war, famine, and ethnic cleansing—countries like the United States generally closed their borders to the destitute. Canada, which in 1917 had disenfranchised its entire Mennonite population, likewise banned refugees at various points during the 1920s and 1930s.

1930 propaganda image originally subtitled “A German Death Sentence” depicting the suffering of Mennonites and other German-speakers in the Soviet Union

Letters and diaries show how some pacifists, denigrated in the East and barred from the West, became radicalized. One man recalled the shame of imprisonment in communist Ukraine. “So, you’re a German?” a Bolshevik interrogator asked, before beating him senseless. Secret police particularly targeted Mennonites who had tried to emigrate, accusing them of “carrying out of counter-revolutionary fascist activities”—even though most initially had little enthusiasm, let alone contact, with Nazi Germany.

“I was no enemy of the Soviets,” another victim of wrongful arrest reported, “but now that I’ve come to know them, you’ll find I’m a true enemy. Now I’m a Hitlerite, a fascist unto death.”

Targeting immigrants and refugees from war-torn Muslim countries gives terror groups like ISIS and al-Qaeda exactly what they want. Just as twentieth-century governments across Europe and the Americas needlessly alienated their Mennonite subjects and excluded Mennonite migrants, President Trump’s grandstanding harms those among the world’s least threatening and most vulnerable populations, in turn making all of us less safe. This is how to radicalize a peaceful minority.

ChosenBen Goossen is a historian at Harvard University and the author of Chosen Nation: Mennonites and Germany in a Global Era, forthcoming in May from Princeton University Press.

William G. Howell: Unilateral Politics Revisited (and Revised) under Trump

The election of Donald Trump clearly marks a break with, if not a repudiation, of the past. But even in these white-knuckle days of his early presidency, we also can discern familiar features of executive power and the politics of unilateral action. Not everything about Trump is new. And if we want to get serious about fashioning a response, whether in support or opposition, we must resist the temptation to treat Trump as purely an aberration.

Let’s begin with the recurrent, if not the customary. Trump is hardly the first president to traffic in nativist appeals, to call for a reordering of national priorities, or to renounce, if only rhetorically, the powers and privileges of a self-interested class of political experts in favor of a supposedly forgotten people. Trump is following a populist path previously trodden by the likes of Andrew Jackson, Williams Jennings Bryan, George Wallace, and Pat Buchanan.

Nor is Trump the first president to launch his presidency with a flurry of policy initiatives. Nearly all modern presidents go out of their way to project an image of energy and command the moment they move into the White House. And rather than work directly with Congress, many of them, like Trump, choose to hit the ground running through administrative fiat rather than legislative engagement.

To be sure, Trump failed to deliver on his campaign promise to overturn Obamacare on Day One. But he did direct the federal bureaucracy to ease up on its implementation until Congress gets around to dismantling it. He then put a freeze on regulations currently under consideration and established new protocols that require federal agencies drop two old regulations for every new one they adopt. Trump accelerated the permit process for private companies building the Keystone Pipeline. He reinstated a ban on funding for international family planning agencies that provide information about abortion services. He formally withdrew from the Trans-Pacific Partnership. He reconstituted the organization and membership of the National Security Council. He instituted a ban on refugees and immigrants coming into the country. In just the first two weeks of his presidency, he did all this and more.

To advance this expansive agenda, Trump drew upon the full arsenal of unilateral directives available to presidents. He issued executive orders, proclamations, national security directives, and memoranda. And like his predecessors, he fabricated altogether new power tools—in this instance, National Security Presidential Memoranda, for which the Pentagon appears to be the primary audience.

Trump also isn’t the first president to invite controversy through unilateral action. Harry Truman desegregated the military, Bill Clinton extended federal protections to hundreds of millions of acres of public lands, George W. Bush directed substantial federal funds to religious organizations, and Barack Obama imposed all sorts of new environmental regulations at times when legislative action on these matters was altogether unthinkable.

We also have witnessed before the kinds of institutional checks that now frustrate Trump. Indeed, they are the essential elements of any theory of unilateral action. Presidents push outward just as far as they can, the adjoining branches of government offer variable amounts of resistance, and in the exchange, the reach and meaning of presidential powers are defined.

But not all is familiar. This go-around, the fallout of unilateral action is a good deal louder and more disruptive than at any other time in modern American history. Never before have so many protests been voiced, so much opposition rallied, so much confusion sowed in the aftermath of orders issued this early in a presidential term.

Just hours after Trump issued his immigration ban, U.S. District Judge Ann Donnelly, a Barak Obama appointee, intervened and issued a temporary stay. A week later, U.S. District Judge James Robart, who George W. Bush appointed to the bench, expanded the stay nationwide. In the intervening days, impromptu protests and legal clinics sprouted up in airports across the nation. Acting Attorney General Sally Yates refused to defend the order in court, an act of defiance for which she was promptly fired. Members of Trump’s own administration professed to have learned about the order through the media. Within the State Department, over 1,000 people signed a petition against Trump’s agenda. This past Saturday, then, the Department of Homeland Security announced that it was suspending all efforts to enforce the immigration ban.

This is not normal. Far from it. In the wake of most executive orders, broad acquiescence, if not perfect silence, typically sets in. Past presidents, after all, have made a point of vetting their orders with policy experts, ensuring their legality with the Office of Legal Counsel, conferring with key partners and adversaries, and then adjusting accordingly. This advance work has not been in the service of governing cooperatively or ceding ground to political opponents. Rather, it has enabled these presidents to discern exactly how far they can push policy without being subsequently overturned, and then prepare those individuals charged with defending and implementing these orders.

What, then, are we to make of the chaos and fury born of Trump’s early actions? One line of thinking points toward an administration wholly unaware of the president’s position in our system of separated powers and entirely insensitive to the costs of bureaucratic resistance, judicial intervention, and mass protest. The tumult of these past two weeks, by this accounting, reflects poorly on an inexperienced and impetuous man with little regard for the rules of procedure and governing norms of American political institutions.

We have before us plenty of evidence to support this line of reasoning. But there are other possibilities to consider. Maybe Trump (and those who advise him) are quite deliberately trying to escalate the fight with his adversaries. Having inherited a bureaucracy not of his making, Trump may be searching for ways to identify those who will stand with him and those who will merely stand in the way. Nothing draws out a lurking enemy quite like an open battle.

Alternatively, Trump may be trying to lure his opponents into a pitched fight that will do lasting damage to their reputations. A press that misreports—as it did in claiming that Trump removed a bust of Martin Luther King from the Oval office—and a protest that turns violent—as occurred in Berkeley, CA—provide all sorts of fodder for a president bent on discrediting the mainstream media and restoring law and order to the country.

Instead, Trump may be playing to a base that cares less about policy than about waging an existential war on Washington. The dustups caused by these unilateral directives may not productively change policy, but in the eyes of Trump’s supporters, they may serve as proof positive that their man is righteously renouncing the discredited rules of a broken political system.  

We don’t know what exactly Trump is up to. It’s possible that we’re witnessing gross incompetence. Alternatively, we may also be seeing the initial gambit in a new and larger political struggle.

In either case, the spectacle is new, and its stakes are enormous.     

Thinking about the PresidencyWilliam Howell is the Sydney Stein Professor of American Politics at the University of Chicago. He is the author or co-author of three Princeton University Press books that focus on different facets of presidential power: Power without Persuasion: The Politics of Direct Presidential Action (2003); While Dangers Gather: Congressional Checks on Presidential War Powers (2007); and Thinking about the Presidency: The Primacy of Power.

 

Colin Dayan: White Dogs on Track in Trump’s America

“Prejudice sets all logic at defiance.”
—Frederick Douglass

Since Donald Trump has brought Frederick Douglass back among the living—“an example of somebody who’s done an amazing job and is being recognized more and more”—I begin with this epigraph. Trump is illogical. Yes. Trump is prejudiced. Yes. But more than that, he might just be our consummate white supremacist. “Bad logic makes good racism,” as I wrote in The Law is a White Dog.

Trump creates a reality that flies in the face of logic. The most fantastic fictions are put forth as the most natural, the most reasonable thing in the world. These fictions endure today in a lexicon of degradation well honed and reiterated by Trump. They create the stigma that adheres to radical states of non-belonging, summoned by him in names such as “thugs” or “criminals,” “rapists” or “terrorists.” Old inequalities and racial discrimination are repackaged in unexpected forms. But these inventions succeed only because they reflect the visceral approval of Trump’s constituency.

Shock and awe: Trump’s extravagant performance of cruelty, outright racism, and rule by executive decree in apparent defiance of law has been called a “constitutional crisis,” described with such adjectives as “unprecedented,” “un-American,” or “unpatriotic.” But we should not forget that his relentless generalizing operates under cover of excessive legalism. Perhaps excess is key to his success. America has always been excessive—not least in its institutionalization of slavery and its subsequent practices of incarceration, unique in the so-called civilized world.

So let’s take a few steps back. Is his touted ban on Muslims unusual? Not at all. Is his specious argument for torture out of the ordinary? Not at all.

Trump’s ban is brutal, but let’s face it, this country boasts a long, sordid history of evacuation. Blood as menacing taint was used during the forced repatriations of Haitians described as “boat people,” “the new migrants,” the “Haitian stampede.” The forced repatriations of Haitians in 1991–92 and the effects of arguments heard by the Supreme Court in March 1993 concerning those placed in custody at Guantanamo (and later on concerning forced removals, in 1994) were not the first nor would they be the last time the US banned “refugees” from our shores. Let’s not forget that as early as 1824, when Thomas Jefferson reflected on emancipation, he asked how “the getting rid” of “people of color” could best be done? He reckoned that in Haiti one might find fit “receptacles for that race of men.”

We have a heritage in America of torture and exclusion. These practices hide behind a veneer of legitimacy just as an idealized federal Constitution long ago abetted both discrimination and inequality. And though we deplore Trump’s wayward antics as a lapse from our normally high standards of respect for human rights, we need to consider the harm that a broad consensus of this country’s citizens has time and again meted out to those considered disposable, dangerous, or unfit. Again, when we hear that Trump’s executive orders are illegal or beyond the rule of law, we need to look hard and long at this country’s history of abusive treatment and discriminatory actions, especially in its prisons and detention centers.

Trump believes that torture—specifically banned interrogation methods such as waterboarding—works. But can it ever be legal? Let’s recall how George W. Bush attempted through White House lawyers to legalize torture. The infamous “torture memos” redefined the meaning of torture and extended the limits of permissible pain. Yet, and this matters, unprecedented as they appeared at the time, they relied—in their often ingenious legal maneuvers—upon at least 30 years of court decisions which gradually eviscerated the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

Bush needed the so-called “torture memos” (sounds so quaint now) to skirt the rule of law, but this new dispensation needs none of it, since Trump and his cronies have already summoned the sometimes amorphous, always definitive moralistic standards that circumvent the basic tenets of constitutional law. Depending on vague and undefined legal provisos proclaimed by the executive, this regime depends on arbitrary willfulness backed up by police power, or in the case of what Trump calls the “carnage” in Chicago, his tweeted resolve to “send in the Feds.”

Police power is state power, ostensibly activated whenever there is any supposed threat to the health, safety, or welfare of citizens. Since 9/11, the so-called war on terror has widened the net: alleged terrorists, enemy aliens, illegal immigrants, all tarred with the same brush, are easily cast outside the pale of empathy.

Terror and legality go hand in hand. They always have done. Whether we look back to the law of slavery, to the legal fiction of prisoners as slaves of the state, to legalized torture in the “war on terror,” or to the discriminatory profiling and preventive detentions that we characterize as “homeland security,” we see how our society continues to invent the phantasm of criminality, creating a new class of condemned.

The ban and the wall are not exactly new stories. “Give us your tired, your poor, your huddled masses”—unless they’re Mexicans, Central Americans, Haitians, blacks, or other undesirables. As I said, we have a long tradition in this country of excluding people of color. But more recently, we have moved on from mass deportations of illegal immigrants. As a “consequence” (in the parlance of border patrol agents) of entering the United States illegally, many tens of thousands of Latinos are regularly subjected to brutal treatment by US Customs and Border Patrol. Trump’s executive order on January 27th barring immigrants and refugees from seven Muslim-majority countries from entering the United States, supported by nearly 50% of American adults, invites bigotry and its attendant techniques of violence and repression.

Legal rituals give flesh and new life to the remains of lethal codes and penal sanctions. The stigma of slavery—and its legal machinations—has never left us. Its ghosts still haunt our law and hold us in its thrall. The difference now is that Trump incarnates in his person and his words not just prejudice, but bad logic and maleficent law. He is wanton. There’s a lot of history in this word, in its hints of depravity, effeminacy, frivolity, and excess. The term also refers to pitilessness. Glee and malice work together in the abuse of those targeted for humiliation. Trump boasts, blusters, struts, and lies. This lethal affectation is his power.

Colin Dayan is the author of The Law is a White Dog.Dayan