Not Exactly Great Again

At the moment, stock markets around the world are crashing because Britain just voted to leave the European Union – to rid themselves of their EU overlords in Brussels and make Britain great again, or something. The pound just lost more than ten percent of its value, so far, and in a few years no one’s going to be trading with Britain – they’re opting out of all the current trade agreements with everyone. But at least they won’t be taking in any immigrants from Europe – no foreign workers at all. The idea seems to be that they’ll be fine on their own – isolationism is freedom – but their economy will have collapsed. They’ll hardly be great again. They’ll have to settle for quaint and forgotten.

Many have said this is a Trump thing, and earlier in the month, Ron Brownstein explained our version of this:

The most important word in Donald Trump’s lexicon may be “again.”

The word anchors many of his signature declarations, as when he insists: “If I’m elected president, we will win again.” In a jab at the secularization of American life, he’s promised: “If I’m elected … we’re all going to be saying ‘Merry Christmas’ again.” And of course, the word is the exclamation point on his trademark pledge to “make America great again.”

In the Trump vocabulary, the word “back” ranks closely behind “again.” Trump is forever promising to “bring back” things that have been lost. Manufacturing jobs, steel and coal production, waterboarding of terrorists, “law and order” in the cities – all of these Trump says he will “bring back” to reverse what he portrays as years of American decline.

These phrases capture the mission of restoration underpinning Trump’s campaign. They touch the pervasive sense of loss among many of his supporters – the belief that the changes molding modern America have marginalized them economically, demographically, and culturally. These words allow him to evoke a hazy earlier time when American life worked better for the overwhelmingly white, heavily blue-collar coalition now drawn to him.

But don’t worry about the logic of any of that:

“It’s a visceral feeling of being left behind,” said Daniel Cox, the research director of the non-partisan Public Religion Research Institute, which studies cultural attitudes. “Economically they are being left behind, but culturally, too, things that seemed to be okay when some of these folks were younger – whether it’s the words you can use or approaches to gender roles – are no longer okay.”

They don’t have a European Union to leave, to make things all better, but Ed Kilgore now points to new polling:

There’s an ongoing debate in the chattering classes about the deepest motives of those who support Donald Trump for president. One theory is that it’s cultural change – epitomized by immigration and the spread of non-Christian religious views – that makes these folks tick. Another is that it’s a product of economic inequality and insecurity. Those who hold the latter view tend to think Trump has some natural appeal to Bernie Sanders voters…

But now there’s the Public Religion Research Institute (PRRI) and Brookings with a new survey that adds powerful ammunition to the “It’s the Culture, Stupid!” faction. It covers many issues related to the changing demographics of America and the perceived impact on the culture for good and for ill. And it does not always break out Donald Trump supporters from broader categories like Republicans and white, working-class members. But where it does, it paints a pretty clear picture of a group of people who absolutely hate the changes taking place in this country since the 1950s, and will support almost any measures to turn back the clock.

The picture is this – “77 percent say it bothers them to come into contact with people who speak little or no English” and “81 percent say discrimination against whites is as big a problem as discrimination against minorities.”

Those are the Trump voters. Just as Great Britain was “great” when it stood alone and ruled the world, America was great when everyone spoke English and no one discriminated against white folks, favoring those “colored folks” and leaving the good white man high and dry. That might be 1953 or so, but there may be no going back to either, unless, over here on this side of the pond, the Supreme Court intervenes, even if it’s one justice short and keeps deadlocking. One can always hope.

Hope doesn’t always work out. This was the day that the Supreme Court upheld affirmative action at the University of Texas today but deadlocked on DAPA, President Obama’s executive action on immigration:

The Supreme Court handed President Obama a significant legal defeat on Thursday, refusing to revive his stalled plan to shield millions of undocumented immigrants from deportation and give them the right to work legally in this country. The court’s liberals and conservatives deadlocked, which leaves in place a lower court’s decision that the president exceeded his powers in issuing the directive.

That’s a loss – affirmative action still screws the good (young) white man – and a win – we can deport many more of those people who speak little or no English. But Kevin Drum says its’ not that simple:

What does this mean? A district court in Texas issued a nationwide injunction against DAPA, which was upheld by the appeals court and now by the Supreme Court. Or, to be more accurate, it wasn’t overturned by the Supreme Court. So it stays in place. But can an appeals court rule for the whole country? What happens if a similar case goes forward in, say, California, and the 9th Circuit rules differently?

We shall have to wait and see. Ruling against a president on immigration is unusual to say the least, so this case suggests either (a) Obama really was out on a limb with DAPA or (b) nobody really cares about precedent or the law anymore. Liberals rule for Obama and conservatives rule against him, and that’s that. I’m not entirely sure which I believe.

The affirmative action case was less ambiguous, as the New York Times’ Adam Liptak reports here:

The Supreme Court on Thursday rejected a challenge to a race-conscious admissions program at the University of Texas at Austin, handing supporters of affirmative action a major victory.

The decision, Fisher v. University of Texas, No. 14-981, concerned an unusual program and contained a warning to other universities that not all affirmative action programs will pass constitutional muster. But the ruling’s basic message was that admissions officials may continue to consider race as one factor among many in ensuring a diverse student body.

It’s not 1953 anymore:

The decision, by a 4-to-3 vote, was unexpected. Justice Anthony M. Kennedy, the author of the majority opinion, has long been skeptical of race-sensitive programs and had never before voted to uphold an affirmative action plan. He dissented in the last major affirmative action case.

He changed his mind, and the reactions were quick:

“No decision since Brown v. Board of Education has been as important as Fisher will prove to be in the long history of racial inclusion and educational diversity,” said Laurence H. Tribe, a law professor at Harvard, referring to the Supreme Court’s 1954 decision striking down segregated public schools.

Roger Clegg, the president of the Center for Equal Opportunity, which supports colorblind policies, said the decision, though disappointing, was only a temporary setback.

“The court’s decision leaves plenty of room for future challenges to racial preference policies at other schools,” he said. “The struggle goes on.”

President Obama hailed the decision. “I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society,” he told reporters at the White House. “We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody.”

That meant not living in the past:

Justice Kennedy, writing for the majority, said courts must give universities substantial but not total leeway in designing their admissions programs.

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,'” Justice Kennedy wrote, quoting from a landmark desegregation case. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

“But still,” Justice Kennedy added, “it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

Okay, move on, but don’t forget the white folks, or not:

In a lengthy and impassioned dissent delivered from the bench, a sign of deep disagreement, Justice Samuel A. Alito Jr. denounced the court’s ruling, saying that the university had not demonstrated the need for race-based admissions and that the Texas program benefited advantaged students over impoverished ones.

“This is affirmative action gone berserk,” Justice Alito told his colleagues, adding that what they had done in the case was “simply wrong.”

Someone had to stand up for the poor (impoverished) white folks, but Jeffrey Toobin sees nothing to worry about:

The four-to-three ruling is both surprising and important. (Justice Elena Kagan recused herself from the case.) Justice Anthony Kennedy wrote the opinion, even though he has been consistently skeptical of affirmative action during his long tenure on the Court. In the Court’s last major encounter with affirmative action, Gutter v. Bollinger, in 2003, which dealt with the admissions policy of the University of Michigan Law School, Kennedy dissented from Justice Sandra Day O’Connor’s cautious embrace of diversity as a legitimate factor for universities to consider. O’Connor was so conflicted about her own decision that she included, in effect, an expiration date of twenty-five years for any racial considerations.

Kennedy’s decision today went further than O’Connor’s, and he recognized that the benefits of diversity have no expiration date. As Kennedy wrote, “enrolling a diverse student body promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”

That will be true indefinitely. In a scathing dissenting opinion, Justice Samuel Alito made a convincing case that Kennedy had gone back on his previous views. The appropriate answer to this criticism is: So what? The Justices have often quoted a famous observation by Justice Felix Frankfurter: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” 

And it was time to do something:

The practical significance of the Court’s decision is difficult to overstate. The Fisher case has been pending for eight years and was argued twice before the Court. Through all this time, the future of affirmative action has been an open and unresolved question. Kennedy has now put the issue to rest for the foreseeable future. This is a great gift to university-admissions officers, who can act with some confidence that they may consider race as one among many factors, but, more importantly, it’s a gift to their institutions. American universities, and the country, will be better off for today’s decision.

That’s because he saw the future:

Kennedy values his place as the swing Justice on the Court, and it’s possible to see in his opinion a recognition of which way the Court is heading. The Justices are divided in much the same way the country is: four Democratic appointees, and four Republican ones. President Obama has nominated Merrick Garland to fill the vacancy left by Antonin Scalia’s death, but the Republicans in the Senate have refused even to hold hearings for him, let alone a vote. This defiance of congressional and constitutional norms is outrageous, and it’s also revealing. Mitch McConnell, the Senate Majority Leader, and his fellow-Republicans see a Presidential election slipping away from their party, and they have made the reasonable calculation that some Democrat – Obama or Hillary Clinton – will fill Scalia’s seat. So the Republicans are postponing a five-to-four Democratic majority on the Supreme Court for as long as they can. But that doesn’t make that majority any less inevitable.

Kennedy must see this, too. The four Democratic appointees have consistently embraced the notion that all institutions are strengthened, not weakened, by diverse membership (as have, for the most part, the American people). That view will surely be in ascendance in any Democrat-dominated Supreme Court. Kennedy could fight that coming wave or try to stay ahead of it. He did the latter… the direction of the Court is clear, and on affirmative action, at least, Kennedy chose to lead the way rather than fight a losing battle from behind.

Think of that as making America “great” but not “great again” – you know, progress.

The other decision was the opposite. The Los Angeles Times David Savage reports on that:

An ideologically deadlocked Supreme Court dealt a severe blow Thursday to President Obama’s immigration reform plan, casting the November election as a referendum on how to deal with the more than 11 million people living in the country illegally.

The 4-4 vote leaves in place a Texas federal judge’s order that has prevented Obama from granting deportation relief and work permits to more than 4 million immigrants who are parents of U.S. citizens or legal residents.

The tie means it will be left to the next president, the next Congress and possibly a nine-member high court to address what is widely seen as a broken immigration system.

It was a punt:

The ruling does not mean that the government will now begin deporting people who might have been eligible for Obama’s program. Speaking at the White House after the ruling, Obama emphasized that parents of U.S. citizens “will remain low priorities for enforcement. As long as you have not committed a crime, our limited immigration enforcement resources are not focused on you.”

The immediate practical impact, however, will be that those several million people will continue to be unable to work legally in the U.S. Obama’s program would have provided legal work authority to those who qualified.

It’s limbo thanks to the death of Justice Antonin Scalia:

The justices issued a one-line decision in United States vs. Texas saying the judgment of the lower court “is affirmed by an equally divided court.”

The split was almost certainly along the familiar ideological lines, though the justices’ votes were not revealed. During oral arguments in April, the conservative justices, all Republican appointees, had voiced support for the lawsuit by Texas and 25 other Republican-led states, which said Obama’s action was illegal. The four liberal justices, all Democratic appointees, appeared to favor the administration and its claims that the president has broad power under immigration law to set enforcement policies.

And the dispute was this:

In announcing his Deferred Action for Parents of Americans and Lawful Permanent Residents in 2014, Obama said that deportations should focus on criminals, gang members and people who repeatedly cross the border, but not on immigrant parents of U.S. citizens.

Obama proposed to allow people who fit this category to come forward, undergo a background check and receive a work permit if they qualified. It was similar to a previous program that benefited immigrants who were brought to the U.S. illegally as children, dubbed “Dreamers.” That program, known as Deferred Action for Childhood Arrivals, is unaffected by Thursday’s ruling.

Texas state lawyers said Obama’s second immigration-reform plan went too far. They sued in a federal court in Brownsville.

And the rest is history, and now an issue in the coming election:

Hillary Clinton, the presumptive Democratic presidential nominee, called the court’s deadlock “unacceptable.” It “shows us all just how high the stakes are in this election,” she said. If elected, Clinton promised to go further and seek legislation that offers a “path to citizenship” for immigrants.

She cited the contrast with Donald Trump, the presumptive Republican presidential nominee, who has promised to deport all immigrants here illegally and build a wall along the Mexican border.

Trump attacked Clinton for vowing to double down on Obama’s efforts.

“The election, and the Supreme Court appointments that come with it, will decide whether or not we have a border and, hence, a country,” Trump said.

We will decide whether or not we have a border and, hence, a country, and Great Britain will stand alone and be great again of course:

“The Supreme Court’s ruling makes the president’s executive action on immigration null and void,” said House Speaker Paul D. Ryan (R-Wis.). “The Constitution is clear: The president is not permitted to write laws – only Congress is. This is another major victory in our fight to restore the separation of powers.”

Texas Gov. Greg Abbott, who launched the lawsuit against Obama’s plan, said the outcome “rightly denied the president the ability to grant amnesty contrary to immigration laws. Today’s ruling is also a victory for all law-abiding Americans, including the millions of immigrants who came to America following the rule of law.”

That’s one view, but then there’s Walter Dellinger – the Douglas B. Maggs Professor of Law at Duke and head of the appellate practice at O’Melveny & Myers in Washington, who also leads Harvard Law School’s Supreme Court and Appellate Litigation Clinic. He served as the acting United States Solicitor General for the 1996-1997 term of the Supreme Court, after he was acting Solicitor General and before that an Assistant Attorney General and head of the Office of Legal Counsel under President Bill Clinton. He may know a thing or two about the law, and he knows this:

I am stunned and disappointed that not a single one of the conservative justices cast a vote to sustain the president’s immigration guidance, or at least to hold more modestly that Texas lacked legal standing to bring the challenge in the first place. The president’s action was not lawless as opponents argued. There are 11.3 million people in the United States who, for one reason or another, are deportable. The largest number that can be deported in any year, under the resources provided by Congress, is somewhere around 400,000. Congress has recognized this and has by statute imposed upon the secretary of Homeland Security the responsibility to establish “national immigration enforcement policies and priorities.” The secretary did just that in deferring deportation action against 4.3 million people, largely parents of U.S. citizens or lawful residents.

That authority is so clear that, at the Supreme Court, Texas did not even challenge the authority of the administration to forbear from deporting those covered by the guidance. What was really at stake at the end was the decision to grant work authorization – under regulations tracing back to the administration of Ronald Reagan – to those for whom deportation was deferred. Although Obama’s order was the most expansive use of the work authorization authority, the arguments in favor of the Obama action’s lawfulness put forward by the solicitor general and by Georgetown professor Marty Lederman have never been effectively answered by anyone, in my view.

This doesn’t make sense:

Immigration reform more sweeping than that undertaken by the president was supported by more than 70 senators and would have been supported by the House of Representatives, as well as the president. So why is it not law? Because the House Republican leadership refused to allow legislation supported by a majority of the House to come to a vote.

And now a more legally modest, but enormously important, action taken by a president twice elected by clear voting majorities has been set aside by a small group of unelected judges. This was a case brought before a judge singled out by the challengers because there was no doubt as to his hostility toward current immigration policies. His overreaching nationwide injunction was upheld by two 2–1 panels (with the four judges who sat on the two cases combined splitting 2–2). And now four justices who disagree with four other justices have brought the president’s program down. And because the court lacks a ninth justice, and is evenly divided, we don’t even have the benefit of an opinion explaining this extraordinary result. This decision, or non-decision, represents a signal failure of democracy.

Those things happen, and Slate’s Dahlia Lithwick adds this:

How quickly we have all simply normalized the fact that there are eight justices on the court, and this is the immutable truth, and it will be this way for most of next term, and that everyone – including millions of Americans awaiting definitive answers on crucial questions – is simply watching how the court plans to brazen through that challenge without ever breaking a sweat. What a rout for the forces of obstruction and chaos! …

The new normal is both outrageous and completely uninteresting. This makes me quite grumpy.

But that’s not all:

I do worry that Americans may become used to a court that does almost nothing, and – if things ever return to normal – they may come to resent a court that does anything more.

Forget “Making America Great Again” – it may be hard to get America back to “Sort of Okay at the Moment Again” – if that. But there’s one good thing. At least we aren’t British.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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2 Responses to Not Exactly Great Again

  1. harryzenz says:

    Britain will be fine. They are the ones with the courage to shine the light into the darkness of the EU labyrinth. Others will follow. First the countries which were far sighted enough to retain their own currencies. The Eurozone countries tied to the Euro will find it more difficult to leave. They have been hog tied. But they don’t realize it yet. The next Greece crisis is just up the road.

  2. harryzenz says:

    Britain is a real democracy and not a project run by unelected commissioners, a sort mild USSR if you see what I mean.

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