President Trump’s Executive Order on Immigration: A Self-Inflicted Wound

First, a caveat.  On policy grounds, I do not agree with President Trump’s order banning nationals from seven predominantly Muslim countries from entering the United States.  While I agree that provisions for screening applicants can always be improved, a sudden ban on all entry will weaken America’s position in the world, embolden our enemies, help ISIS and other Islamic extremist organizations with their recruitment, and unfairly victimize literally thousands of individuals who have selflessly contributed to fighting terrorism – including Islamic extremism – around the world.  I recognize, however, that I disagree with the President on policy.  As President, Mr. Trump does not need to listen to me.

As President, however, Donald Trump does need to abide by the US Constitution and to manage effectively the operation of the government of the United States.  In issuing his Executive Order on immigration, Mr. Trump failed miserably.  Here are three specific ways he failed.

(1) President Trump could have ensured that his Executive Order (EO) was consistent with the US Constitution by excluding legal permanent residents (AKA “green card” holders) from the entry ban, but he did not.

(2) President Trump could have made an exception for “special immigrant visa” (SIV) holders, which includes persons who have demonstrated extraordinary commitment to American values by helping advance American foreign and military objectives abroad, but he did not.

(3) President Trump could have made allowances for persons who were already in the air flying from an overseas origin to the USA, but he did not.

Let’s look at each of those failures in more detail.

Legal Permanent Residents:  It is telling that when Department of Homeland Security officials first saw the text of the EO they interpreted it not to cover legal permanent aliens since it was clear to the immigration experts that such a ban cannot, under the US Constitution, be applied to permanent residents of the USA.  The experts were overruled by the White House, which specifically ordered the exclusion of legal permanent residents.  That specific policy direction from the White House was clearly unconstitutional because it denied the right of due process and equal protection to legal permanent residents of the United States.  (Note: According to Section A of the 14th Amendment to the Constitution, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)  While numerous Federal Courts quickly moved to prevent the removal of legal permanent residents, countless reports indicate that many such individuals were deported or “turned around” despite the existence of valid court orders.  Others were coerced into “voluntarily” giving up their status as legal permanent residents under various threats.  The legal mess from this part of the EO will likely drag on for months or years.  The impact on the lives of people who were summarily returned to countries where they do not live, do not have a home, and may well be targeted for politically-motivated arrest or execution is incalculable.  The impact on American security will be severe.

Special Immigrant Visa Holders:  The fact that the very first person to be detained pending expulsion under the EO was Hameed Khalid Darweesh, an Iraqi who had worked for the US military in Iraq for 10 years prior to immigrating to the USA with his family, is emblematic of this deeply flawed EO.  Mr. Darweesh was not a newly-arriving immigrant; he already lived here.  Even after immigrating on an SIV, however, Mr. Darweesh continued to work with the US military and it was in this capacity that he agreed to return on a dangerous mission to Iraq to help US military advisors working to defeat ISIS.  As he was returning from this dangerous mission undertaken on behalf of the US government, Hameed Darweesh was detained and would have been deported under the provisions of the EO had not a Federal Court quickly ruled that he must be afforded full due process under the Constitution.  Luckily for Mr. Darweesh, immigration officers in New York followed the court order.  Reports from elsewhere in the USA indicate that other permanent residents were not so fortunate.  To understand how unfair and how counterproductive the EO was as written, consider that Mr. Darweesh had survived 10 arduous years supporting US forces in Iraq.  Under SIV rules, he would have been eligible to immigrate to the USA after just two, but he stayed in Iraq to support US troops because he believed in the US cause and the US government.  Even after he finally did leave to save the lives of his family, he agreed to return to Iraq to support US troops.  As thanks, the US nearly threw him out of the country.  Mr. Darweesh is one man, but his story is the story of thousands of Iraqis.

While the Pentagon, under the leadership of General James Mattis, is preparing a list of SIV holders from Iraq as well as Iraqis who have provided invaluable assistance to US troops but who are still in Iraq, there is nothing in the EO that would allow the State Department to issue visas to those individuals or that would allow the Department of Homeland Security to admit them to the USA.  I have faith in the ability of Secretary “Mad Dog” Mattis to convince the White House to modify the EO, but that does not change the fact that it should never have been written so as to exclude people who have risked their lives to advance US security and save the lives of US service members.

People in the Air:  A basic principle of American legal system is that no law can be applied retroactively.  In other words, a city or state cannot decide 2017 to make fireworks illegal and then proceed to fine or arrest everyone who has ever lit a firecracker in the 50 years prior to that ban.  While retroactive laws are rightly acknowledged to be illegal and unethical, that is exactly what the EO did to the hundreds of people who boarded planes thinking that they had done absolutely everything right to prepare for their trip to the USA but then were treated as criminals on arrival.  Those caught in this trap included tourists, students, business people and at least one tiny infant coming to the USA for emergency open heart surgery.  A 60-year old woman was not allowed to see her severely ill mother in a US hospital for even a few minutes before being sent back.  The horror stories have been repeated hundreds of times.  These stories of personal anguish, as well as the perception that the US is ignoring one of the pillars of its own legal system, could have easily been avoided by including even a very brief grace period for persons who were already in the air.  Despite White House comments to the contrary, no one from one of the seven countries included in the ban could possibly receive a visa quickly enough to travel during that tiny window, meaning that allowing such a window carried no risk, no downside at all.  (Note:  All persons from those seven countries were already subject to “special processing” requirements – AKA extreme vetting – that takes at least weeks and usually months to complete even for a simple tourist visa.)

Why Did This Happen?

There are only two ways this could happen.  Either the White House is so unaware of the US Constitution and long history of the US working closely with foreign nationals to advance US national security that they did not realize how detrimental the EO would be, or they did not care.

Conservatives such as Karl Rove and former Vice President Dick Cheney have clearly expressed their disappointment with President Trump’s EO on immigration, stating that it could have, and should have, been handled much better.  Karl Rove, for example, specifically used the term “amateurish” to describe the drafting and roll-out of the EO.

I hope Dick Cheney and Karl Rove are correct, because the alternative explanation – that the White House knew its actions were unconstitutional and detrimental to US security but did not care – is much, much worse.

 

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Rex Tillerson, Our Future Secretary of State

I just finished watching Rex Tillerson’s testimony with the critical (at times cynical) eye of the senior professional diplomat.  While I try to keep an open mind, I have to admit that there was a part of me that was rooting against him.  I now admit to myself that the little voice inside me was probably wrong.

It is not that I agree with everything Tillerson said.  I don’t.  As every career State Department employee knows, however, we never agree with everything our political leaders say but we nonetheless do our absolute best to implement the policies of the Administration while making sure that our political bosses know the reality of what is happening on the ground around the world.

When it comes to policy, a good diplomat needs to be as flexible as a Cirque de Solei performer.  Another trait we share with a good circus performer is that we have to always be practical, recognizing the difference between what we’d like to do and what we are certain we can accomplish.  A failed policy initiative – like a failed acrobatic stunt – is not an acceptable outcome.  (Full disclosure:  I always hated the “reset”; it was a slogan not a policy and was therefore always destined to fail.)  Rex Tillerson’s testimony demonstrated to me that he is adept at the art of the contortionist, giving me hope that he will also be adept at the art of the diplomat.  He is also clearly practical, always doing his utmost to advance the agenda he has assumed.

The one thing I really wished Secretary-to-be Tillerson had said to lay to rest concerns about his past positions on climate change, Russia sanctions, etc., is:  “When I was responsible for ExxonMobil, I did my absolute best to advance the interests of the company and its shareholders.  That was my job and I did it to the best of my ability, subjugating myself and my interests to succeed at my assigned task.  If confirmed, I will take that same approach to being Secretary of State, furthering the interests of the American people.  Whatever my personal interests may be, I will do my absolute to defend and protect the Constitution of the United States and to advance policies that increase the security and interests of American Citizens.”  While he did not speak those words, I think (or hope) that I correctly read them “between the lines.”

I’m not saying that Rex Tillerson will be our best Secretary of State ever, but he certainly won’t be the worst either.  Only history can judge that.  What hit me was that he is qualified and that his background and testimony gives me grounds for optimism.  As an incurable pragmatist (another trait of diplomats), that’s all I can ask for.

 

Getting it Wrong on Russia

My first “rule of thumb” for recognizing when an article or policy analysis on Russian actions is likely incorrect is that “if the speaker/author bases their analysis on the assumption that Moscow’s actions are exclusively directed toward the USA, chances are that their analysis will be wrong. Russian policies are, not surprisingly, often directed toward Russian audiences.”  Putin’s meddling in the US Presidential election offers a clear example. The obvious (to many Americans) explanation is that the reason Putin is taking the unprecedented step of directly meddling in US elections is that he wants Trump to win. Obvious, but wrong.

The primary reason Putin is meddling in the US election process is that he wants to discredit the democratic process, in general, and American democracy, in particular. His primary target is not the USA but pro-democracy groups inside Russia as well as in various former Soviet Republics that maintain their client relationship with Moscow. (To Putin, both Russian democracy activists and those in the Russia’s “near abroad” are “domestic” since he views and treats those former Republics as de facto satellites.) Putin may be a brutal dictator bent on reestablishing the Russian Empire of Alexander III, but he is also geopolitically smart and understands that the spread of democracy is antithetical to his goal. By undermining the still widely-held conception among residents of the FSU that democracy is good and American-style democracy is great, Putin is working to consolidate his power by dashing people’s dreams.

Personally, I am not convinced that Putin even wants Trump to win.  I am not even certain if Trump really cares who wins.  I agree that Trump is very useful to Putin.  Trump is the classic “useful idiot” that the Soviet Union’s propaganda and espionage organs valued so highly – the type of foreigner who promotes Moscow’s propaganda line without even being paid or blackmailed.  Putin, however, is smart enough to recognize the difference between an idiot and a world leader with whom he would have to deal.  Putin must realize that a Trump presidency would bring unprecedented uncertainty – uncertainty that could lead to war or even nuclear war. So, while Putin knows that Hillary Clinton would be a formidable and implacable foe to his plans for a renewed Russian empire, given the choice he could well choose the enemy he knows over an uncertain and unreliable ‘friend.’ It could also be, of course, that Putin really does not care who wins and that his only goal is to tarnish the image of democracy.  Putin is confident (or arogant) enough to believe that whoever wins the election, he’ll deal with him/her.

Looking at the election today, Putin must feel a bit like Bin Laden after the World Trade Towers collapsed – his plan is working even better than he could have hoped. Not only have the e-mail ‘scandals’ he rigged by funneling data to WikiLeaks led to Trump and his supporters feverishly supporting Moscow’s age-old narrative that American elections are really no different than corrupt and rigged Russian elections, now the Trump camp is threatening some type of (possibly armed) insurrection if Trump loses, which he almost certainly will.  Trump is being joined in his calls for revolt by people who should know better, such as Milwaukee County Sheriff David Clarke, who is urging Americans to take up “pitchforks and torches.”

The increasingly unhinged and violent rhetoric coming from the Trump camp must sound to Putin as the most beautiful music he has ever heard. Even if only a tiny percentage of Trump’s supporters carry through on their threats, or even if they only continue broadcasting the message that American democracy is a sham, not only will the image of American democracy be debased for decades to come, but Putin will be facing a US that is greatly weakened by internal divisions and thus less able to counteract Putin’s global agenda.  Whatever the outcome of America’s internal debate, a paralyzed and divided America would be a true “win-win” for Putin.

Note: This piece is heavily draw from a speech I gave at the Mar’s Woods Lifelong Learning Group in Lake Oswego, Oregon on September 6, 2016.  I edited greatly to turn a 45-minute speech into a short article and updated slightly to reflect more recent events.

The Lessons of Orlando

This essay began as a reply to a Facebook posts from members of the LGBT community.  After I read Donald Trump’s latest speech (rant), however, I felt compelled to update and expand it.  Warning – it contains political statements and may upset some people.

First, let’s be clear about what happened in Orlando.  It is absolutely clear, both from his actions and his words, that when Omar Mateen murdered over 50 people in Orlando’s Pulse club, his goal was to commit a hate crime against the LGBT community.   He hated homosexuals; he was shocked and repulsed by them.  Seeing two men kissing was enough to “justify” killing dozens of innocent people.

Despite that simple reality, a number of people, including Presidential candidate Donald Trump, are trying to “recast” Mateen’s horrific crime as Islamic extremism.  Mateen was indeed a Muslim, but the type of blind hatred he espoused is by no means a uniquely Islamic phenomenon.   This is why his crime is clearly a hate crime.

Am I – as Donald Trump shouts about various critics – afraid to use the term “radical Islamic terrorism”?  No.  Unlike Mr. Trump, I have seen radical Islamic terrorism in action.  I have personally been on the receiving end violence sponsored by radical Islamic extremists.  Perhaps that experience helps me to see more clearly that extremist Islamic terrorism had nothing to do with what happened in Orlando and that “banning Muslims,” as Mr. Trump has once again advocated, will do nothing to address the horrible loss of life in Orlando – or to prevent a similar occurrence in the future.

The deranged individual who carried out the murderous rampage was clearly motivated by personal hate of people he had never met but whose very existence offended him.  It is true that he was a Muslim, but he could have just as easily drawn his inspiration from any number of prominent “Christian” leaders from the extremists of America’s religious right.  If you doubt the truth of my assertion, just ask Pastor Kevin Swanson of the National Religious Liberties Council, who has publicly called for the execution of all homosexuals.   Of course, the “Reverend” Swanson is just one individual, so you may want to reach out to others, such as the tens of thousands of members of his group or its prominent political supporters.  For example, you could ask former GOP presidential candidates Ted Cruz, Mike Huckabee and Bobby Jindal, all of whom appeared at Swanson’s annual hate fest even after the “Christian” pastor reiterated his public call for the extermination of homosexuals.   If it weren’t for the fact that we know Mateen was a Muslim, it would be understandable to think that perhaps he was inspired by Swanson or by Tennessee Pastor Robert Gallaty, who preached earlier this year that all homosexuals must either remain celibate or be put to death.  Listening to the legion of anti-LGBT fundamentalist “Christians” advocating violence against the LGBT community, it would be easy to confuse Omar Mateen for a “Christian” warrior in much the same way that Robert Lewis Dear was inspired by “Christian” leaders to murder a police officer and two civilians at a Planned Parenthood clinic.

If you think that Swanson, Gallaty and their ilk are an isolated group with little real impact, maybe you should also ask Scott Lively from the Family Life Network, TheCall Ministry founder Lou Engle, or World Congress of Families leader Larry Jenkins – all “Christian” ministers who have dumped millions of dollars and political influence into encouraging other countries to enact hate-based “Christian” laws that target the LGBT community. Uganda and Russia are among their “success” stories.  In Uganda, a vaguely-worded law now defines homosexuality as a capital offense.

In Russia, the LGBT community is suffering more repression than at any time since Stalin – or perhaps even before that.  Putin’s views on the LGBT community almost seem inspired by the type of hate-fueled logic spewed by Florida Pastor Jeffrey Smith, who says that homosexuals are the same as murders and rapists and therefore deserve the same treatment.  There is, in fact, an entire constellation of “religious conservatives” in the USA who regularly praise Mr. Putin for his “Christian” laws that prohibit “pro-gay speech.”  That group includes prominent right-wing religious extremists with all-American names such as the American Family Association and even well-established “Christian” political pundits such as Pat Buchanan, a former Presidential candidate.  Even mainstream conservatives, such as The American Conservative’s blogger Rod Dreher, chimed in by giving Putin “1.5 cheers” for his anti-LGBGT laws.  Dreher based his own paean to Putin on his belief that “post-Soviet Russia, for all its grievous flaws, is […] more conscious of its Christian history and character than the United States.”

The level, frequency and vehemence of the religious extremist members of the “American Taliban” (fundamentalist “Christian” leaders who believe that the USA should be strictly governed by a religious-based legal code of their personal choosing) leave no doubt that the atrocity in Orlando was not a “radical Islamic” crime but a hate crime based upon a sadly widespread and clearly multi-religious form of hate directed toward those who are perceived as “different.”  After all, that is the original meaning of “queer.”  If you really want to attribute the Orlando massacre to religion, then attribute it to extremist-inspired radical anti-LGBT hatred of all types – Christian, Muslim and other.

What makes Donald Trump’s statements in his speech today (the text can be found here) particularly despicable is that Trump is not a stupid man.  I suspect that he understands what really happened in Orlando and why.  He is, instead, an opportunist who saw the opportunity to score political points by misconstruing – and debasing the memory of – the tragedy in Orlando.  The even sadder truth is that Trump was probably correct in his political calculus.  Many of his supporters will likely whole-heartedly support his misrepresentation of the facts.  Even those who don’t fall for this particular deception will, once again, forgive him for his “rhetorical excesses.”  The saddest fact of all is that this type of successful political calculus leads us toward a future defined by more irrational hatred focused on those who are “different” – or “queer” to use the original meaning – because they follow a different religion.   The one thing we don’t need in the wake of the most horrific hate crime in American history is yet more irrational hatred.

I don’t mean to say that all Christians are homophobes who promote hatred and violence against the LGBT community.  I did not quote them in this essay, but there are many, many deeply devout, genuinely Christian leaders who are as outraged by this mindless violence as I am.  A Roman Catholic Archbishop whom I had the pleasure of knowing a number of years ago comes to mind.  When a gay pride rally was attacked by a mob of “Christian” extremists, the Archbishop opened up the cathedral and his own residence to provide sanctuary to marchers.  He certainly was not gay or even particularly sympathetic to homosexuals, but he instinctively and philosophically understood exactly what Jesus would have him do.  Thinking of the Archbishop and others, it seems to me that no true Christian could promote the type of bigoted hatred behind the Orlando massacre, which is why I put “Christian” in quotation marks when referring to the crowd of American-grown right-wing religious extremists I cited above.  In my view, the “apostles of hate” (my term) are most definitely not Christians.  If they have any precedent in the Christian Bible, it is in John’s “Book of Revelations,” where he warns of the coming of the anti-Christ and his legions of followers who will speak using the name of Christ even as they argue against everything Jesus taught.

What happened in Orlando was, first and foremost, a hate crime.  If you want to call it terrorism, then is was anti-LGBT terrorism.  To prevent future atrocities of this type, we cannot be lured in by the false political calculus – or the false “Christianity”- of political and religious extremism.  Instead, we need to focus on the sickness that is anti-LGBT hatred, an insidious sickness spawned by those who harbor an irrational fear of people whom they perceive as different – whether it is due to their sexual or religious orientation.  Tolerance, love and respect are the cures for this sickness, not more hatred.

A Classic Example of How to Lie With Statistics

The March 3 Republican debate showcased a classic example of how to lie with statistics.  (Note: No partisanship here; it was all Republicans attacking Republicans.  No matter who says it, however, lying with statistics is still lying.)

Senator Rubio kicked off a marathon lesson in how to lie with statistics fairly early in the debate when he attacked Donald Trump by stating: “Two-thirds of the people who have cast a vote in a Republican primary or caucus have voted against you. They do not want you to be our nominee.”

What a classic!  Rubio’s statement starts with an accurate statistical fact and then spins it into deceitful story line that is not supported by the facts he cites.  Let’s look deeper.

The factual statistic at the heart of Marco Rubio’s incredibly dishonest statement is that while Donald Trump has been “winning” (to use the dominant media term) most primaries, he has not won a majority of the votes cast.  Instead, he won a plurality – the largest slice of the vote pie but still less than a majority of all votes cast.  In a multi-candidate field, a 30% to 40% share of the pie is frequently enough to be declared the winner.  Senator Rubio would have been entirely truthful if he had pointed out that Donald Trump only won a plurality of the vote, not a majority.  Senator Rubio even would have been 100% correct had he stated, for example, that “you have received well less than half the votes” or that “taken as a group, the candidates opposing you have won more votes than you in every primary held so far.”  That second version is a bit tortured, but still entirely accurate.

Rather than making statements entirely supported by the statistics he cited, however, Mr. Rubio chose to draw – and attempt to convince viewers to draw – a conclusion that is completely unsupported by the statistics he cited.  To reach his conclusion that “[t]wo thirds of the people who have cast a vote in a Republican primary or caucus have voted against you,” Rubio made the assumption that every person who voted for another candidate specifically voted against Donald Trump.  While it may seem somewhat logical that if you don’t vote “for” someone then you vote “against” him or her, that is not necessarily true in a multi-candidate race.  In a multi-candidate contest, a random voter may have had a very hard time deciding between Mr. Trump and one of the other candidates, but, in the end, wound up voting for the other candidate.  This hypothetical voter did not vote against Mr. Trump but for someone else.  If his or her favorite candidate later drops out, our hypothetical voter may well transfer his/her loyalty to Mr. Trump.

I may be stepping into a mine field here by moving from statistics and logic to religion, but perhaps Mr. Rubio hoped that his comments would remind religious Christian voters of Matthew 12:30, which states “Whoever is not with me is against me…”  Matthew was not referring to politics when we wrote that quote, and he certainly was not talking about a multi-candidate primary race!  Matthew’s observation might have some applicability to a U.S. general election in which only two candidates have a realistic chance of winning.  In early primary voting among a multitude of candidates, however, it is entirely likely that many voters have a 1st choice, 2nd choice, 3rd choice and so on and that those choices are only narrowly separated in their minds.  In such cases, a vote for one candidate is not a vote “against” the others but simply for the person at the top of a list.

Based on my own ‘gut feeling’ (which has no statistical significance) and a look at numerous polls attempting to measure not only which candidates Republican voters support but which candidates they most strongly oppose, there is no doubt that a number – probably even a big number – of Republican voters genuinely “oppose” Mr. Trump and would support any other candidate besides him.  Not one of those polls, however, supports Marco Rubio’s contention that every person, 100% of them, who favored another candidate in a primary or caucus chose that candidate because they oppose Mr. Trump.

Another way to highlight the faulty logic behind Senator Rubio’s claim would be to apply the same logic to Mr. Rubio’s own showing in the primaries and caucuses that have been held to date.  That same false logic that leads to the conclusion that two-thirds of Republicans “voted against” Donald Trump would also lead to the conclusion that over 85% “voted against” Senator Marco Rubio.  Ouch!

Unfortunately for him, the normally quick-witted Donald Trump seemed to fail to zero in on the source of the lie – the disconnect between statistical fact and utterly false assumption that every vote he failed to win as a vote against him – at the heart of Senator Rubio’s charges.  As a result, Trump’s initial rebuttal was so confusing as to be difficult to analyze.  Rather than focusing on the deception at the heart of Rubio’s charge, the exchange devolved into a meaningless exchange of random poll numbers about how each candidate might fare in a hypothetical match-up with Hillary Clinton.  Given how incredibly variable and inaccurate such polls are this far out from the general election, it is entirely unsurprising that each candidate participating in this pointless exchange (Rubio, Cruz, Kasich) was able to cite “polling data” purporting to show that he would do better against former Secretary Clinton in a general election.  I have not bothered to fact check the polls each cited since that type of poll means nothing at this point in the contest.

Much later in the debate, Senator Cruz essentially launched the same attack – based on the same unstated faulty and misleading assumptions that allowed Rubio to go from statistical facts to an outright lie.  By that time, however, Mr. Trump seemed to have zeroed in on the core fallacy at the heart of the argument and used it to turn the tables by noting that, by Mr. Cruz’s own logic, the fact that Cruz polled just 15% in some poll means that 85% of voters are absolutely opposed to him.  Typical for the entire debate, the ensuing exchange was a bit garbled as candidates yelled over each other, but in the melee it seemed clear to me, at least, that Mr. Trump had grasped the fundamental fallacy in the argument presented by both Senator Cruz and Senator Rubio.

Postscript:  Just to be clear:  this is not a political argument.  I am not trying to tell anyone who to support.  Instead, I just found it interesting how such a classic example of “how to lie with statistics” popped up in the March 3 Republican debate.  There were many other lies told that night, but I won’t go into those.  As someone who is a student of statistical reasoning and its abuses, however, I found that particular exchange in the debate highly amusing.

Upholding the Constitution

While I attempt to steer this blog clear of partisan political politics, sometimes politics provide the best possible examples of “Lies and Damn Lies.”

Just hours after the untimely death of Supreme Court Justice Antonin Scalia on February 13, presidential candidate Senator Ted Cruz declared that there is “80 years of precedent of not confirming Supreme Court Justices in an election year.”   Cruz used this “80 year precedent” to support his own position and to add support to the announcement already made by Senate Majority Leader Mitch McConnell that the Senate would not act upon any nomination to the Supreme Court made by President Obama.

As debate moderator John Dickerson of CBS pointed out, Cruz’s assertion was clearly factually incorrect since Supreme Court Justice Anthony Kenneth, a Reagan appointee, was confirmed in 1988, an election year.  Tellingly, the debate audience applauded Cruz’s incorrect assertion and booed Dickerson for pointing out the truth.  While Dickerson did not point it out, 1988 was not only an election year, it was an election year in which a two-term sitting President could not run for reelection.  In other words, exactly the same situation we face today.  If Dickerson had pointed out that truth, the situation may have gotten ugly.

In a February 14 interview on “Meet the Press,” Senator Cruz engaged in a bit of spin-control intended to make it seem as if he was right all along when he repeated his debate assertion with a few carefully inserted modifications.  “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”  By adding in “nominated and confirmed in an election year,” Cruz was clearly attempting to side step the unfortunate fact that – contrary to his debate night assertion – over the past 80 years no fewer than five Supreme Court justices had been nominated and/or confirmed during an election year.

Senator Cruz and his supporters appear to believe that the candidate’s restated assertion somehow put the whole issue to rest.  Nothing could be farther than the truth.

Lies, Damn Lies and Statistics

Senator Cruz’s artfully worded revised statistical assertion is factually correct; no Supreme Court justice has been both nominated and confirmed in an election year in 80 years.  The second sentence of his revised statement — the one in which he asserted that “[t]here is a long tradition that you don’t do this in an election year” —  was pure deception.  There is no such tradition nor would such a practice be allowed under the Constitution.  Precisely because the complete “correction” issued by Senator Cruz used a statistic to support a falsehood, it perfectly fits the Twain/Disraeli admonition that there are “lies, damn lies and statistics.”

Senator Cruz (among numerous others, including Senate Majority Leader McConnell) has repeatedly used this intriguing little statistic to argue that there is a “rule” or “tradition” that when vacancies occur during the final year of Presidents’ terms, Presidents uniformly and magnanimously choose not to appoint a replacement, instead leaving the choice to their successors.  That is 100% false.  For at least 120 years, no President has ever failed to nominate a Supreme Court justice when a vacancy occurred in the final year of his term.  Overall in American history, roughly one-third of all Presidents have nominated Supreme Court justices during an election year.  One-third.

You may be wondering how both of these statistics can be true – that no Supreme Court justice has been both nominated and confirmed in an election year in 80 years and that no President in at least 120 years has ever failed to nominate someone to fill a vacancy that occurred during an election year.  The answer is actually not very difficult to understand.  Despite their own personal political leanings, most Supreme Court justices strive to honor the Constitution and the intent of America’s “founding fathers” by keeping the Supreme Court out of politics – and politics out of the Supreme Court.  One way they do this is by avoiding resigning in an election year when political pressures are naturally acute.  Justices tend to resign early in a President’s term or not at all.  While I would also assume that Supreme Court justices would prefer not to die in an election year, as Justice Scalia’s death (and all of human history) shows, some things are beyond our control.

A much more honest – but less politically useful – way of citing the same fact that Senators Cruz, McConnell and others have been tossing around since the death of Antonin Scalia is that it is rather uncommon for unexpected vacancies on the Supreme Court to occur in an election year, but when they do, Presidents always nominate replacements — and the Senate always acts on those nominations.

Honoring Justice Scalia’s Legacy

Justice Scalia will undoubtedly be remembered as person who made “Constitutional originalism” a serious school of judicial thought.  Some would even argue that he originated the movement, although that assertion is difficult to “fact check” since the answer depends on exactly what constitutes “Constitutional originalism.”  Without a doubt, however, Justice Scalia took a concept that rarely entered either public or scholarly legal debate and brought it squarely into the mainstream.

According to Justice Scalia himself, the core tenant of Constitutional originalism is that the Constitution is not a “living document” that needs to be constantly re-interpreted based upon changes in society.  Instead, Scalia famously argued that “the Constitution is dead.”  He did not say that to demean the document.  The opposite is true.  In Scalia’s view, the Constitution is a document for which the meaning was permanently fixed on the date of its adoption in 1789.  In his view, the Constitution does not change with political fashion or public opinion.  It is, instead, absolutely fixed and should only be interpreted as it was originally written and intended.  The Constitutional originalist method is therefore to look at the exact words in the Constitutions and, if they are not sufficiently clear (which is very often the case given the brevity of the document), to look at the original intent of America’s founding fathers as expressed in their actions, beliefs and writings.

The uncomfortable reality facing Senator Cruz (who clerked for Justice Scalia at the Supreme Court), Senator McConnell and others is that both the words and the original intent of Article 2, Clause 2 of the Constitution are perfectly clear.  It requires that when a vacancy occurs, the President must appoint a replacement.  There is absolutely nothing in the Constitution to suggest that the President should — or even can — decline to make such a nomination if a Supreme Court vacancy occurs in an election year.  The Constitution places this requirement squarely on “the President alone,” leaving no room for the Senate or even Presidential candidates vying for his seat to interfere.

Senator Cruz and others have argued that it would be “more democratic” to allow the American people a stronger voice by making the next Supreme Court nominee an election issue.  There really cannot be any question that Senator Cruz’s argument runs completely counter to the intent of the founding fathers.  Their strongest argument in favor the adoption of the Constitution was that it created a government of three equal but very different parts.  Two of those three parts were to be elected, either directly or indirectly.  Their third part – the Supreme Court – was to remain outside the political process and not subject to politics.  America’s founding fathers were very blunt when explaining their reasoning for establishing such a non-democratic branch of government.  They were deeply concerned about the threat posed by a potential “tyranny of the majority.”  Without some type of restraint, they argued (based upon a depressingly accurate understanding of human history), would it not be completely democratic for 51% of the voters to decide to deprive the other 49% of their rights, their property or even their lives?  The Constitution was crafted not to make the United States a perfect democracy, but to make it a controlled and stable one in which minority rights are protected.  The “controls” were intended to protect liberty and individuals’ freedom from the “excesses” and “passions” of the masses — passions that reach a pitch in an election year.

If anyone needs further proof of what the founding fathers intended should happen in the event that a Supreme Court vacancy occurs in an election year, the historical evidence is beyond doubt, as shown by the case of Chief Justice John Marshall.  Shortly before John Adams, one of the leading “founding fathers” and the second President of the United States, was due to leave office, Chief Justice Oliver Ellsworth resigned.  This occurred not only in an election year; it happened in that narrow window of time after Adams’ successor, Thomas Jefferson, had been elected but before Jefferson was officially sworn in as President.  During this interim period, President Adams was a genuine “lame duck” since his replacement had already been elected.  Nonetheless, Adams nominated John Marshall on January 20, just weeks before Jefferson was due to be inaugurated as President.  Marshall was confirmed by the Senate on January 27.

For his part, President-elect Thomas Jefferson was not reticent in letting everyone know that he would like outgoing-President Adams to choose not to nominate a replacement for Ellsworth.  Politics is politics, so Jefferson’s position is easily understandable.  Despite his own desires, however, Thomas Jefferson never once asserted that President Adams did not have the right to nominate a new Chief Justice, nor did he state or imply that the Senate should not act on the President’s nomination.  When President Jefferson took office, he did not hide his chagrin at being deprived of an opportunity to name the Chief Justice but he never once attempted to block John Marshall’s assumption of his office or to recall or impeach him.  In short, through his actions Thomas Jefferson was perfectly clear on the difference between what he as a politician would like to see happen and what the Constitution required of him as President.

The precedet is clear and important.  Despite his own political desires, Thomas Jefferson took his oath of office “to preserve, protect and defend the Constitution of the United States” seriously.  As a result, he followed the letter and spirit of the Constitution even when it thwarted his own political ambitions.

Back to the Present

This brings us to the real– and the troubling– question that is at the heart of the growing political drama over Justice Scalia’s successor.  Not only is the Constitution clear, so is historical precedent.  Supreme Court justices have been confirmed by the Senate 17 times during Presidential election years, starting with nominations made by our founding fathers.

The Constitution requires the Senate to fulfill its duty for “advice and consent.”  The Senate is absolutely free to decide not to confirm a Supreme Court justice.  Indeed, over the course of American history 11 nominees have been rejected by the Senate.  The number grows if one also includes nominees who withdrew from consideration after it became obvious that they would not be confirmed.  There has never been a case, however, when the Senate refused to consider a nominee.  Never.  The reason for this is simple: the Constitution does not give the Senate the option of simply ignoring a nominee.  As Senator Mitch McConnell personally argued in 1992 and 1995, the Constitution requires that the Senate either confirm or reject a nominee.

To justify his decision to ignore his Constitutional duty to provide “advice and consent” on a President’s nominee to the Supreme Court, Senator McConnell has recently abandoned his previous reference to the unwritten (and unfounded) “Thurman rule” in favor of a newly-discovered “Biden rule.”  The story line goes that when our current Vice President was a Senator, he supported the same position McConnell holds today.  The problem is that the assertion is false.  Senator Biden never argued that the Senate should refuse to consider any nominee made by President George H.W. Bush during his final year in office.  Instead, what he actually did was urge the Senate to reject any nomination that President Bush put forward.  It is true that Senator Biden quickly accused politicians and the media of “misinterpreting” his comments and that in reality Senator Biden phelped to push through the rapid confirmation of multiple Supreme Court justices nominated by President Bush.  Nonetheless, his words in 1992 were unfortunate and inappropriate.  Even when caught up in partisan rhetorical excess, however, Senator Biden never stated that the Senate should ignore its Constitutional responsibility to provide advice and consent.  Instead, he urged that the Senate vote to reject any nominee.

Senator McConnell has moved well beyond anything suggested by Vice President (then Senator) Biden.  Realizing that the Senate would face considerable pressure to approve an undeniably qualified candidate (or embarrassment in rejecting such a candidate), Senator McConnell has stated his intention to avoid political unpleasantness by refusing to do his Constitutionally-mandated job of providing advice and consent.  In McConnell’s world, avoiding political embarrassment is clearly more important than fulfilling his Constitutional duty.  That is troubling.

The Real Danger Facing the United States

In the final analysis, the question America is facing today is much more troubling that this year’s election politics.  The real question is whether politicians are free to ignore the Constitution and violate its provisions when they find it politically expedient to do so.  The drafters of the Constitution made their views clear by defending, protecting and following the Constitution to the letter even when their personal political desires pulled them in another direction.  Do American politicians serving in the Senate today still take their oath of office seriously?  If not, the American people face a very serious threat.  While I sincerely hope that Senator McConnnell is simply engaging in the type of over-the-top political rhetoric that led then-Seator Biden to make his comments more than 20 years ago, I fear that a more fundamental shift is taking place and that our elected officials now regard the Constitution as nothing more than a useful symbol to be used when convenient and ignored the rest of the time.  That is a scary thought.

 

 

Understanding Oil

Crude oil is in the news.  This time, it is because the price is at an historic low and appears to be heading even lower.  Over the past few months, I can’t count the number of times I have read or heard various people offering expert analysis of what this means and what we can expect.  Sadly, most of them clearly have no idea how the oil industry works or the complex way in which technological innovations such as shale oil (or light-tight oil) and tar sands oil are changing the fundamentals of oil markets.  Without understanding the economic basis of the oil industry and how it is changing, there is no way anyone can hope to project what the future holds in store.  So, here is my (hopefully simple and readable) primer on the oil industry intended to help non-experts understand the forces at play.

First, a few caveats.  In this post, I am only looking at crude oil.  That is both because it is crude oil prices that are discussed most often and because this explanation would become lengthy if I attempted to also cover the wide range of rules, geographic factors, market forces and taxes that complicate the relationship between the price of crude oil and the price of gasoline at the pump.  Just understanding crude oil markets should help to understand the risks the world economy faces of the coming months.  Second, I am not addressing the added complexities added by the global effort to combat human-induced climate change.  Instead, I am just looking at how technological changes and economic realities are interacting to create new uncertainties.

The Oil Industry in Just Two Easy Steps

While extracting oil from the earth is an incredibly complex engineering and financial undertaking and almost every oil well could be considered unique, it is actually possible to conceptualize the whole process of consisting of just two simple economic costs.

1) Fixed Costs:  These are the costs of finding oil, drilling wells, setting up a field operation, establishing facilities to do basic things to the oil (such as separating it from the water and natural gas that are frequently present) and – of course – doing the paperwork to get permits, etc.

2) Marginal Production Costs:  These are the costs that go into pumping (or squeezing) out each barrel of oil once all of the fixed costs have already been made.  Marginal production costs include workers’ salaries, fees or royalties paid to land owners or governments, maintenance, the energy to run the operation, etc.

Producing Oil the Traditional Way

For the past 100 years of more, developing a new oil field has been extraordinarily expensive.  The cost of finding oil, drilling lots of holes (only a minority of which produce oil) and installing massive machinery to support the whole process can cost billions or even tens of billions of dollars.  All that money has to be spent before the first barrel of oil is sold.  In some oil fields, such as Kazakhstan’s mammoth Kashagan field in the Caspian Sea or Brazil’s massive Libra oil field, this fixed investment cost exceeds $100 or even $150 billion dollars.  When divided by the number of barrels of oil that investors expect to produce from those fields and discounted for the time value of money, that means that the fixed cost alone for developing these fields is likely to exceed $50 or even $75 a barrel.  Those are just the fixed costs; the marginal production costs for those fields will drive the total cost to produce each barrel even higher.  Needless to say, now is not a good time to be an investor in one of those megaprojects.

While the Kashagan and Libra oil fields are extreme examples, it is not uncommon for the fixed costs of developing a major oil field to represent 40% to 60% of the total cost of producing crude oil.  This is one of the reason why so much oil is produced by gigantic oil companies.  Who else has tens of billions of dollars that they are willing to invest in a project with a 20- or even 40-year payback period?

Marginal Production Costs Drive Production Decisions

No matter how expensive it is to develop an oil field, once it is operational fixed costs take a backseat to marginal production costs in decisions over when to produce oil.  This is because once an oil field is developed, all of the fixed costs become what economists call “sunk costs,” meaning that investors cannot recoup them by any method other than operating the oil field.

To understand this in practice, imagine yourself as the owner of a large, traditional oil field with an expected 40-year lifespan.  Let’s assume that you are not a multi-billionaire and thus had to borrow heavily to develop your oil field.  Your fixed costs for developing this field were high enough that you calculate that loan payments would equal $40 for every barrel you expect to produce.  Now that you have invested all that money, however, the marginal production cost of operating and maintaining the oil field is only about $15 a barrel.  When oil was selling for $100 a barrel, you were happy and rich!  Now that oil is $30 a barrel, however, what do you do?

If you stop pumping oil, you have zero income with which to make your loan payments and you lose everything.  Not good.

If you continue to pump, you will lose money on every barrel you sell.  Nonetheless, the $30 market price is enough keep the field operating and you will even have another $15 available to make at least partial payments on your loans.  It will take some tough negotiations with your creditors, but they are likely to conclude that $15 a barrel in loan payments is better than nothing.  Plus, if you can keep operating through this period of historically low oil prices then you’ll be in a good position to reap high profits – and make high loan payments – once oil prices recover.

Real world examples are more complicated, but the same underlying logic continues to work.  Economics dictates that oil companies will continue to pump oil as long as the price they receive is higher than their marginal production costs, even when they are losing money on every barrel once fixed costs are added to the equation.  In the real world, most producers actually keep producing oil (for a time, at least) even if the price they receive for their crude is less than marginal production costs.  This happens for a couple of reasons.   In the real world, costs don’t drop to zero just because production ceases.  Unless an oil company is ready to abandon an oil field entirely, and therefore abandon all of the massive fixed costs tied up in that field, the company will need to keep a certain number of staff on the payroll, do routine maintenance to keep equipment from rusting from disuse, etc.  The geology of oil production also serves to encourage oil companies to keep pumping even when they lose money on every barrel.  Crude oil does not occur in huge underground lakes of liquid oil.  Instead, it is trapped in rock formations such as sandstone or, more commonly, various carbonite structures.  Once production starts, a combination of natural and man-made forces cause the oil in the rock to migrate toward the wells so it can be pumped out.  If the tap is turned off and production suddenly stops, however, the oil will migrate elsewhere or bond to the rocks.  In either case, the total number of barrels that can be recovered from an oil field can actually decline just because the tap was turned off when it should not have been.  That loss in potential production can represent a huge economic loss, and thus serves as a strong incentive for keeping oil fields pumping even when they lose money.

For these economic and geological reasons, oil producers are loathe to stop producing oil just because they are losing money in the short term.  As long as they believe that the price of the crude oil they produce will eventually rise to profitable levels, they will do everything in their power to keep pumping during periods of low prices.  This is why world oil production does not fall precipitously every time oil prices fall.

New Production Technologies Turn Old Wisdom on its Head

Everything I have said thus far pertains to “traditional” oil wells.  These oil wells are characterized by huge up-front fixed costs and long production life times of 20, 40 or even 100 years.  Nearly all of the remarkable rise in U.S. oil production over the past 10 years comes from a new generation of oil fields that produce crude oil either from shale or other sources that were not considered feasible to develop just a generation ago.  Taken together, these new sources of oil are commonly referred to as “light tight oil.”  It is “tight” because it is more thoroughly trapped than traditional oil and thus takes a lot of energy and technology to get out.  It is “light” because the process of freeing the oil from its rocky prison results in very light rather than heavy oil.

Compared to traditional oil fields, a much lower portion of total costs for light tight oil comes in the form of fixed costs.  Instead, fixed costs tend to be more modest while marginal production costs are quite high.  When you hear in the news that the cost of producing oil from a certain light tight oil field is $60 a barrel, it is a good bet that most of that is composed of the marginal production costs of cooking and squeezing the oil out of the shale or other rock and a somewhat smaller portion is attributable to the fixed costs of developing the well.  Another big difference between the majority of traditional oil wells and light tight oil production is their productive liefspans.  While a traditional oil well typically produces oil for 20 years or more, many light tight oil facilities have a prime productive lifetime of only 18 months or two years.  The wells may be operated after that, but production typically declines considerably after that first, short period of production.  To keep production up, oil companies simply have to develop more and more wells.

Putting it all together, “traditional oil” is characterized by big up-front investments, long project lifetimes and relatively low marginal production costs.  Light tight oil, in contrast, has the opposite characteristics: more modest up-front costs, higher operating costs and shorter lifetimes.  Another way to think of this dichotomy is to imagine two ways of producing one hundred thousand barrels of oil a day for thirty years.  The traditional method would be to find a large oil field, invest billions of dollars to develop it, and then produce oil from that field for 30 years.  The method for producing that same quantity of light tight oil would be to develop dozens or even hundreds of small oil projects to reach your goal of 100,000 barrels a day and then to continuously develop more and more new ones to take over as production from the completed wells declines.

What This Means for Oil Markets and Prices

Analysts familiar with only parts of the overall picture often draw incorrect conclusions.  Anyone predicting multiple years of historically low oil prices is likely forgetting that light tight oil from the U.S. has been the largest source of new oil entering the markets over the past several years.  While many or perhaps even most light tight oil wells that have already been completed will continue to produce even if oil prices are low, oil producers are unlikely to continue investing in new projects unless oil prices rise to at least $50 a barrel.  Even at $50, many light tight oil plays (as the industry calls them) won’t be developed because the cost of production can run to $60 or even $80 a barrel.  Remembering that the majority of existing light tight oil wells will decline to very small production levels within the next 18 months, the decline in U.S. production could come quite quickly.

Similarly, anyone who points to the precipitous decline in investment into new light tight oil wells that has occurred over the past year as “proof” that the age of light tight oil is drawing to a close is ignoring economic realities.  As production from light tight oil wells declines, the U.S. will need to import millions of barrels of day more crude oil, thus driving up world crude prices.  Once crude prices rise, investment in light tight oil will resume.  It is the classic “supply and demand” model of economics.

Life in the Fast Lane

The long lead times, high up-front investment costs and long production lifetimes of traditional oil fields served as a type of brake on market volatility.  Absent a sudden disruption caused by war or a major natural disaster, market and geological realities meant that oil production moved up and down relatively slowly.  While natural and political disasters did cause periodic disruptions, those were the exception rather than the rule.

While light tight oil cannot be developed instantly, compared to traditional oil it is a veritable speedster that has reduced project lifecycles from a few generations to a few years.  For that reason, it has introduced a new element of volatility.  Now that the technology is more well understood, when prices are high investment is likely to flow in rapidly and production to surge even more rapidly than we have witnessed over the past five years.  When prices drop, however, investment will fall just as rapidly with production declines only a year or two behind.

This means that world oil markets will be more volatile in the future than they have been in the past.  Rapid boom-and-bust cycles are a real possibility.  Those cycles could be highly disruptive.  For the foreseeable future, for example, the biggest physical constraint on the rapid development of light tight oil is not geology or engineering but manpower.  As the Dakotas have already seen, the huge demand for labor to constantly drill new wells can reshape a state’s economy almost overnight – both when the demand rapidly appears and again when it disappears.  Huge problems can develop during both halves of the boom-and-bust cycle.

In the past, huge low-cost producers such as Saudi Arabia could play a role in maintaining market discipline among oil OPEC-affiliated and even some non-OPEC producers.  It did this by opening its own oil taps wide as a means of “punishing” countries that produced more than their quota or who were seen by Saudi Arabia as destabilizing markets.  Yes, Saudi Arabia lost money every time it did this, but its low cost of production meant that it could survive low oil prices better than most other countries.  It is difficult to predict how effective this strategy will be in the future.  Saudi Arabia’s game plan worked well as long as other producers had long-term investments at stake and thus shared Saudi Arabia’s desire for a degree of price predictability.  The gambit was further helped by the rather limited number of very large oil producers.  Because light tight oil production depends on the relatively short-term investment decisions of literally thousands of individual producers, “policing” this new class of oil producers is likely to prove extremely difficult.

What’s the Answer?

If you have read this far, you may be hoping to find “the answer” about oil prices.  Sorry, I don’t have it.  I do not know how long historically low oil prices will continue.  I only know that they cannot stay for more than a few years.  Falling investment in light tight oil, particularly when coupled with rising demand in India, China, SE Asia and elsewhere, mean that prices will rise.  Unfortunately, I do not know how quickly or how high they will rise.  There simply is not enough historical data to predict with any confidence what this newly emerging mix of production methods will mean for prices.  The only prediction with which I feel comfortable is that oil prices are going to be more volatile in the future than they were in the past and that this volatility will result in a wide range of economic and social disruptions.