On TAP: Kuttner + Meyerson


Over to You, John Roberts. The future of American democracy may literally come down to the decisions of one man, Chief Justice John Roberts. That’s because all of Trump’s efforts to place himself above the law—stonewalling subpoenas, telling his people to defy contempt citations, making dictatorial claims about executive power—will eventually end up in court. The Supreme Court.

And as we all know, the current court is divided 5-4, with five far-right toadies and four beleaguered liberals. Though one of the five, Roberts, occasionally seems to have second thoughts about the Constitution, the democracy, and the reputation of the high court.

This sure as hell needs to be one of those times.

The signs are far from auspicious. Roberts has been utterly promiscuous in overturning settled law when it served Republican partisan and ideological purposes. He has had a view of executive power almost as extreme as Trump’s.

But occasionally, he gives defenders of democracy some hope. In NFIB v. Sebelius, where the court’s conservatives hoped to overturn the Affordable Care Act. Roberts voted with the liberals—sort of. He held that the ACA was not legal under Constitution’s Commerce Clause, but was OK under Congress’s power to tax. 

However, Roberts opined, both the individual mandate and the required state expansion of Medicaid were illegal. Now, however, in a new pending case backed by the administration, conservatives argue that with the mandate gone, the ACA is no longer an example of Congress’s power to tax and should be tossed out in its entirety. So Roberts may either have outfoxed himself, or maybe was foxier than we thought.

Last November, Roberts professed to be offended at Trump’s characterization of an “Obama judge.” He declared:

We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.

But that was posturing. The high court is ideologically split, the five conservatives are shills for Trump, and Roberts himself is Exhibit A.

On the other hand, in three recent cases, Roberts voted with the liberals to deny high court review of lower court rulings that went against the right, but taking care to note that these were procedural decisions, not substantive ones.

In short, unless Roberts gets an attack of conscience, he is a slender reed on which to place the survival of American democracy. That said, he is a much classier act than Trump, and he’s what we have.


With Uber’s Stock Tanking, Trump’s NLRB Rides to Its Rescue. “Uber Has Poisoned an IPO Market That Was Sick Anyway,” a Wall Street Journal headline proclaimed this morning. When the market closed Monday, two days after the company had first listed its stock, Uber’s shares had declined by 18 percent from its IPO listing of $45. 

To deter Uber’s owners from hurling themselves off of Airbnb high-rises, however, the Trumpified National Labor Relations Board endeavored to come to their rescue today. With stories like the Journal’s declaring that Uber ownership was a fool’s errand, the Board chose today to release an April 16 “Advice Memorandum” from the office of its general counsel which emphatically concluded that Uber drivers were independent contractors with no right to form a union or bargain collectively. For a company like Uber, which has never yet shown a profit, a guarantee that it will never need to give its drivers a raise is as close as the company can get to something resembling good news.

To reach the conclusions it reached, the general counsel drew on a Board ruling from earlier this year which found that Super Shuttle drivers were independent contractors, too. As Moshe Marvit pointed out in a Prospect article he wrote on that decision, the basis for Board’s ruling came down to the fact that if Super Shuttle drivers incurred losses while working for the company, they had to cover those losses themselves—a situation the Board’s ruling creatively characterized as “an entrepreneurial opportunity.” 

That the Board’s general counsel has now consigned Uber drivers to worker hell, then, is hardly surprising. What does raise eyebrows is the timing of the release of the counsel’s memo—a timing so egregious that it almost makes you wonder if Trump’s appointees to the NLRB have shares in Uber that they’re frantically trying to unload. In the Anything-Goes presidential administration of Donald Trump, the egregious has become so normalized and so stupidity commonplace that the Board’s action not only stinks to high heaven but should be investigated by House Democrats.


Citizen Mueller. The other day, I suggested that Special Counsel Robert Mueller commit an act of civil disobedience and testify before Congress despite the objections of the Trump Justice Department, of which he is an employee.

I’ve checked with a number of legal scholars, and it’s even simpler than that. He need only resign and he is free to testify. 

As long as he doesn’t divulge confidential grand jury matters, he can expand on the sometimes Delphic hair-splitting in his report, and make clear that Trump could be indicted but for a ruling of the Office of Legal Counsel, which has no constitutional basis.

He could also associate himself with the nearly 700 former federal prosecutors, Republican as well as Democrat, organized by the group Protect Democracy, who made clear that in their view Trump could be indicted were it not for that ruling. The letter is worth reading in its entirety. 

We need a citizens movement urging Mueller to testify. How about it, counselor?


Trump Got That Right. When The New York Times unearthed ten years of Trump’s tax returns showing losses in excess of $1 billion, Trump indignantly tweeted that this is simply how the real-estate game is played—pile up those paper losses while you make real money.

Trump is right about that. The developer scam allows you to take deductions for depreciation while the property is actually appreciating, and find some other way to offset the capital gain when the building is sold. Not to mention deductions for interest, the “loss” of paying yourself management fees, and a lot more.

It’s a racket, and Trump is the biggest real-estate racketeer of all.

Speaking of which, did you see what Zillow is up to? Zillow has more information on property sales and values than anyone else. Until now, Zillow has profited by using click-bait to generate ads and other digital income.

Now, however, Zillow is in the business of buying and selling properties, on the premise that it knows more about real-estate markets and flipping properties than any of the locals. It’s exactly the same conflict of interest that Amazon engages in when it both provides the platform for other companies’ sales, and markets wares itself, armed with superior knowledge of consumer buying habits.

Senator Elizabeth Warren has proposed a common carrier rules where you either provide the platform or sell products on the platform, but not both. Zillow is the latest example of this abuse.

Earth to the Federal Trade Commission ... anybody home?


What Decent Joe Biden and Indecent Donald Trump Have in Common. My friend Ron Brownstein, who may be the sharpest political analyst plying the journalist’s trade, wrote some years back (in 2012, in fact) that the Republicans had become “the coalition of restoration” while the Democrats had become “the coalition of transformation.” In the Age of Trump, that assessment is even more on point.

The Trumpified Republican Party looks back to a time when white men had no need to pay heed to anyone but themselves and when America’s industrial might faced no challenges from other nations or from environmental concerns. Today’s Democrats, by contrast, champion the rights and power of the historically disadvantaged groups whom Republicans see as a threat to their vision of a white male-dominated nation, and to their own political power. 

This year’s flock of Democratic presidential candidates largely reflects their party’s commitment to transformation, in greater or lesser degree putting forth proposals that would create—or even themselves personifying—a more egalitarian America.

One of those candidates, however, has taken a different course, kicking off his campaign by evoking themes of restoration even more than transformation. That candidate, of course, is the current frontrunner: former Vice President Joe Biden. To be sure, Biden is committed to minority rights, greater worker power, environmental safeguards—the fundamentals of contemporary Democrats’ creed. But in his stump speeches, he looks backward more than forward, to a pre-Trump time of bipartisan decency which in fact began to erode with the 1960s’ shift of Dixiecrats into the Republican Party, and which completely ceased to exist in the mid-1990s with the rise of Newt Gingrich to the speakership and the coming of Fox News.  

Nor has Biden yet embraced many of the more egalitarian proposals his fellow candidates have put forth, such as free college tuition, universal Medicare, or dividing corporate boards between worker and shareholder representatives. So far, the raison d’etre of his candidacy has been his supposed ability to win back white workers who drifted into Trump’s column in 2016. And while his fundamental decency and basic center-left liberalism immediately differentiates him from our indecent neo-fascist president, he nonetheless resembles Trump in that both appeal to mythic pasts that they believe will cement their support among swing white voters: in Biden’s case, a past of cross-class, cross-racial harmony; in Trump’s, a past of unchallenged white male hegemony (which isn’t all that mythic) in which white workers flourished (which is partly true and partly false), which he alone can restore (which is horseshit). 

It’s the looking backward that sets Biden apart from the Democratic field, and that at minimum calls into question his ability to mobilize young voters. If he doesn’t course-correct, he may become the boat against the Democratic current, borne back ceaselessly into the past.  


The True Constitutional Crisis Is Upon Us. Trump has now defined himself as simply above the law. Congress can issue all the subpoenas it wants, but if Trump stonewalls, it all ends up in courts. And the federal courts are increasingly as independent as, say, Poland’s, Hungary’s, Venezuela’s, or China’s.

Robert Mueller must be kicking himself. He tried to play it straight and this is his reward. 

Suppose, instead of hinting at it, he had simply written: 

Were it not for the Justice Department guidelines (which are not part of the Constitution), I would have requested indictments of Trump. Since the Justice Department would not permit me to do that, I recommend that Congress follow the constitutional remedy, and impeach him.

That would have shut up Trump’s claims of vindication.

Mueller should now defy Trump, and testify. As a citizen. It would be the most noble act of civil disobedience since King, Gandhi, or Thoreau.


At Least We Can Always Count on Tom Friedman. To get it 180-degrees wrong, that is. Friedman writes in today’s Times: “I don’t want him impeached. He has to be voted out. Only that will restore the faith of the world that America has not lost its mind.” 

Does Friedman perhaps remember ... Watergate? In case he was on an extended junket to Riyadh at the time, here’s what happened: Nixon was forced to resign thanks to an extensive impeachment proceeding. The Democrats won a massive victory in the midterm elections three months later, and took back the presidency two years after that. This trifecta did the job very nicely.


The China Feint. Crystal ball time. Trump’s last-minute get-tough posture and threat to raise tariffs is of course a bargaining ploy. The negotiators will burn the midnight oil and come back with some nominal but hollow Chinese concessions on intellectual property and industrial espionage that will be easily evaded when it comes to enforcement. Trump will claim that his hard line and threatened tariffs saved the day. The world will be spared the tariffs, Trump will get his signing ceremony, and the Dow will go up 700 points.

Consumer Warning: I am not a licensed investment adviser, so do not base your stock market strategy on this prediction. 

Trump’s cynicism knows no bounds, and he needs this deal, even if the U.S. gets sold out in the fine print. Of course, I could be wrong. A tariff war would make him look even tougher. But in terms of rehabilitating his image, at least for one news cycle, he needs to look statesmanlike.

Whadda world.


Don’t Mess with LGBT Texans. The Texas legislature is considering a bill that would allow any person in a licensed occupation, such as plumbers, opticians, pharmacists, and even non-emergency doctors, to refuse service to someone who happened to be LGBT because it offended their religious sensibility. You know, God created Eve from Adam’s rib, marriage is between a man and a woman, and who is the government to mess with God’s will?

You wonder why the racists didn’t come up with this ploy back in the civil rights era: Hey, I have nothing against blacks personally, you understand, but race-mixing is contrary to the Bible and the will of God, and it offends my religious sensibility.

Well, the anti-LGBT/religious sensibility bill may yet go down—because of the opposition of the Texas business community, God help us. It isn’t that corporate America is all that progressive on LBGT issues (though it’s a lot better than the Texas legislature). It’s that corporations stand to lose a lot of business.

One in ten business conventions are held in the state of Texas. Forget that if the bill passes. And LGBT workers in large corporations have enough influence that they expect their companies to stand up for them. 

So in this topsy-turvy Trumpian world, the strongest lobby opposing the measure is the Texas business establishment—which otherwise supports Trump and all manner of right-wing stuff that trashes labor as workers, just not as LGBT workers.

Strange bedfellows. Strange times.


Trump and China: The Art of the Cave-In. Several leaked reports from people “close to the negotiations,” suggest that Trump will soon announce a trade deal with the Chinese government pretty much on China’s terms. This will serve Trump’s goal of changing the subject for one news cycle. But it will not serve the American economy.

All the indications are that China will make an ad-hoc agreement to buy a lot of stuff, but not alter China’s mercantilist system, nor its systematic theft of U.S. intellectual property, nor the coercive terms with which Beijing treats U.S. companies who want to do business in China, nor the spying built into its advanced technology.

Readers may recall the cover piece in our Spring issue addressing the talks with China, in which I asked the question, “Can Trump’s best appointee save the president from himself?” That appointee is Robert Lighthizer, the most knowledgeable and patriotic person to serve in the position of U.S. trade representative, maybe ever.

Lighthizer, in a long and distinguished career, has made clear just what China needs to do to be a member of the global trading system in good standing—the very trading system that has helped China become an industrial powerhouse. But Trump, for all his bluster, has repeatedly undercut Lighthizer with his slavering eagerness for a deal. That posture, of course, only encouraged China to take an ever harder line. So much for the Art of the Deal.

Lighthizer joins a long parade of decent people who elected to serve under Trump by convincing themselves that it was for the good of the country. As former FBI Chief James Comey pointed out in a rueful and poignant piece, Trump has made fools of them all. 


The Malign Cluelessness of the Billionaire Bourgeoisie. One of our nation’s more festive rites of spring convenes every April or May at the Beverly Hilton in Beverly Hills. The Milken Institute’s Global Conference, presided over by Michael Milken himself, is a kind of domestic Davos, minus the swarm of elected officials and social movement leaders who are occasionally brought in to the Swiss gathering to spice things up.

The Milken Conference is made of sterner stuff. It’s for financiers, business honchos, and the random superrich, brought together to inform their deal-making, make more connections, and celebrate—well, themselves. Old-timers may recall Milken’s yearly clambakes at the Hilton began in the 1980s, when he was inventing the junk-bond business at Drexel, Burnham, Lambert, and would annually convene high-flying financiers at the Hilton at what was then called “The Predators’ Ball,” a nod to the corporate takeovers and profit extraction that Milken had helped pioneer.

That, of course, was before Milken did time for financial crimes and then reinvented himself as a think-tank founder and capitalist visionary. This year’s conference has been unfolding this week at the Hilton, and might fairly be called The Nervous Predators’ Ball.

It turns out that all that corporate gutting and profit extraction that Milken himself helped launch has produced rumblings of discontent with capitalism among many of the kinds of people not invited to Milken’s conference. According to an account in today’s Los Angeles Times, a lunch panel yesterday entitled “The Future of the Free-Enterprise System” dealt with such gnarly topics as climate change and “the rising popularity of socialism among young people.” During the presentations, Milken himself acknowledged the glitches in contemporary capitalism. “Obviously, it is not working for everyone,” he said.

At the closing panel, hedge-fund billionaire Ray Dalio (who pocketed a cool $2 billion last year alone) warned, as he had last month in print, that the prospect of revolution couldn’t be dismissed if things continued the way they’ve been going. In his talk, the Times reported, he contrasted today’s sense of hopelessness among many Americans with “the New Frontier years of the Kennedy administration, when the nation thought it could eliminate poverty.” However, the Times continued, “it was hard to say that any comprehensive concrete solutions emerged out of the discussion,” other than a more “conscious capitalism” that doesn’t concern itself exclusively with making more money.

Overlooked in these discussions was the fact that the declining share of corporate revenues going to workers was somehow related to the decline of worker power since the 1960s, and that rebuilding a vibrant middle class requires a corresponding boost in worker power—say, re-unionization, giving workers half the seats on corporate boards, and extending collective bargaining agreements to all businesses in a given industry, whether unionized or not. Ignoring the correlation, not to mention the chain of causation, between the decline of the union movement and the decline of workers’ incomes since the 1970s requires an almost heroic feat of epistemic closure, but the Milkenites were up to the occasion. If anyone there spoke for rebuilding worker power at the expense of big-time shareholders, CEOs, and Wall Street, it certainly wasn’t reported.       

Nor, I presume, did anyone respond to Dalio’s reference to the War on Poverty by noting that it came as a response to The Other America, a book by Michael Harrington, who at the time was also America’s leading socialist. If the neo-predators at the Hilton really want to fix what ails us, they’ll have to relinquish the power and privilege they’ve wrested from their fellow Americans in the years since Milken devised a way to supercharge the rich at the expense of everyone else. 


In Which the Superb Tom Edsall Gets One Big Thing Wrong About Unions. New York Times contributing columnist Tom Edsall is a national resource. In column after column, he provides encyclopedic research both scholarly and journalistic, extended interviews, astute insights, and hard questions for progressives on politically urgent topics.

His most recent column, on the political consequences of the decline of unions, is no exception. As Edsall demonstrates, the Republican right’s strategic war on unions has been devastating to Democrats, since union members and union families, with their sense of solidarity and better understanding of how capitalism works, are more likely to vote for Democrats than demographically similar nonunion families.

Edsall was not exaggerating when he wrote that the right has a better appreciation of unions than the left. Thus, the systematic union bashing. In Wisconsin, as Edsall shows, courtesy of Scott Walker’s anti-union crusade, the union share of Wisconsin employees was cut from just over 15 percent as recently as 2008 to just 8.1 percent by 2018.

Edsall ends his piece by wondering why “many liberals and Democrats” don’t get the importance of unions.

The problem in building support for a resurgent labor movement is that many liberals and Democrats do not appear to recognize the crucial role that unions continue to play not only in diminishing the effects of inequality, but in voter mobilization and campaign finance.

And here is where Edsall misses a key part of the story. The problem is not that “Democrats” fail to appreciate unions. It’s that the corporate and Wall Street Democrats who have dominated the presidential wing of the party since Jimmy Carter and Bill Clinton actively loathe unions.

Carter, Clinton, and Barack Obama all had the opportunity and the votes to put serious teeth back in the Wagner Act, in the face of vicious corporate union busting. All decided not to lift a finger on behalf of labor law reform.

All three presidents had progressive labor secretaries. But the real power players were elsewhere.

Most Democrats in Congress get unions. The problem has been the corporate influence on the presidential party and its domination of key positions at Treasury, OMB, and Legislative Affairs. Some of this is about campaign finance, but not all of it.

Edsall brilliantly depicts the class warfare that leads Republicans and their business allies to bash unions. He misses the fact that the same class warfare has infected the Democratic Party.