Monday, August 7, 2017

Gabriel's recent blog posts elsewhere

Here are some posts I've written recently. Feel free to comment here or there if you have something to add. As always, thanks for reading my blog.

Tenure reviewed: A review of Michael Berube and Jennifer Ruth. The Humanities, Higher Education, & Academic Freedom: Three Necessary Arguments. New York: Palgrave Macmillan, 2015.

A case for the conscience exemption: I propose permitting an opt-out "conscience exemption" for union shop agreements, particularly for public-sector unions.




Monday, June 12, 2017

Professional opinions

[This is cross-posted with Hitcoffee here.]

Walking back


It's presumptuous to criticize members of a profession for acting "unprofessionally," especially true when I have not acquainted myself with the specific norms of that profession. I did that when I said recently that some mental health professionals "are acting unprofessionally and to a certain extent dangerously in their public diagnoses" of Mr. Trump. Part of what I meant was that mental health professionals ought not to comment publicly on a public official's mental health.


I no longer believe that. Dr. X--both in his comments here at Hit Coffee [for example] and in some posts at his own blog [here and here]--has convinced me that it's sometimes appropriate for mental health professionals to make such public commentary and that whether or not it's "professional" is more arguable than I allowed.

Cautions are still in order

I still urge caution when it comes to public diagnoses, but before I proceed, I'll note a few terms I am probably using wrong, or at least too globally. "Mental health" and "diagnoses" here in this post are catchalls and may not necessarily encompass what public commentary on public officials is really about. "Mental health professional" is a broad term, too. It can include MD's, PsyD's, PHD's, LCSW's, and probably others--the key point is that I'm referring to people who are licensed or otherwise credentialed to counsel others or to people who study mental health academically. While my use of these terms is sloppy, I ask your indulgence. Now, on to the cautions...

Caution #1: "can't" is a sliding scale

It's important not to confuse the general sense and professional norm that such commentary is "improper" with a strict prohibition against such public commentary. I understand the Goldwater rule is somehow encoded into the American Psychology Association's code of ethics. I suspect, however, a mental health professional who offers public diagnoses does not usually risk being hauled before an ethics board or otherwise sanctioned in the same way he or she might by, say, inappropriately breaking confidentiality.


Anti-caution: We should presume that professionals take the established norms of their profession seriously. Even if they disagree with the norms and seek to revise or ask others to reconsider them, we should presume the professionals feel in some way answerable to those norms or at least believe the norms something that merit discussion and are not to be lightly disregarded. Even without a strong enforcement mechanism, these injunctions still act in some ways as a prohibition.

Caution #2: There is never enough information

I submit that any public diagnosis has to be upfront about what is not known and ought to be open to the concern that the diagnosis might be too hasty. In the meta-sense we just cannot see into other people's minds. In the non-meta-sense, there's always something we don't know about others' history or actions or influences.


Anti-caution: Thus is it always and everywhere. No matter how much is known there are always unknowns. And yet, we have to come to conclusions and mental health professionals are no different. I am informed that in at least some cases, the mental health professional can diagnose an individual in a matter of minutes. I am also informed that in other cases, mental health professionals may be called upon to create psychological profiles of others whom they have never met (say, psychological profiles of employees or profiles of foreign leaders for state intelligence). And regardless of these examples, some persons' actions do demonstrate what they are likely to do in the future, and if a mental health professional can yield discipline-specific insights into those actions that a layperson cannot offer, then that's probably okay.

Caution #3: my corollary to the McArdle rule


Megan McArdle often says that just because there's a problem doesn't necessarily mean there's a solution to the problem. My corollary is that just because a public diagnosis is correct doesn't mean it tells us what to do with the person so diagnosed. (I'll add here that a good model is Dr. X. He may offer opinions grounded in his area of expertise, but when he discusses policy solutions he takes care to distinguish what his expertise can and cannot tell us.)


Anti-caution: My corollary doesn't mean such public diagnoses are worthless. A diagnosis might very well and very rightly warn us, for example, against false assurances that someone will "pivot."

Caution #4: there will be blowback and it will be unfair


In one of my posts, I referred briefly to objections that Rabbi Michael Lerner of Tikkun magazine has about public diagnoses. I don't agree with everything he says there, and I agree with less of it now that I've heard Dr. X's counterpoints. Still, the following objection from Mr. Lerner rings true to me:
I believe that making these kind of diagnoses without the benefit of having a carefully constructed private relationship with the public political personality being analyzed leads many of the tens of millions of supporters of the political character who has been labeled in this way to believe that implicitly they too are being judged and dissed. This plays into a central problem facing us in the liberal and progressive world....When we use the kind of psychiatric labeling suggested by those who insist that Trump is a clinical narcissist, that is heard by many who support him as just a continuation of the way the liberal and progressive forces continually dismiss everyone who is not already on our side as being racist, sexist, homophobic, xenophobic, Islamophobic, anti- Semitic, or stupid. This makes many of these people feel terrible, intensifies their self-blaming, but then often generates huge amounts of anger at those who have made those judgments without ever actually knowing the lives and details of the people that are thus being dissed. And this contributes to the ability of right-wing demagogues like Trump (not a psychiatric term, but a political judgment) to win support by telling a deep truth to many Americans: “many on the Left know nothing about your lives, but they have contempt for you, think that if you are white or if you are a male you are specially privileged and should spend your energies learning how to renounce your privilege.”....
First, I should say my quotation is deceptive. The ellipses elide quite a bit. If you go back to read Lerner's comment in full (I'm quoting from his point no. 4, but I recommend reading all his points), you'll see his argument is not merely pragmatic, but enmeshed in a broader, ideological critique of the faults he finds with capitalism and meritocracy. I don't necessarily share that broader critique and if I hadn't elided those points, the quote would have been not only longer, but would have seemed more contestable as well.


Second, what Lerner seems to me to be saying (in part) is that however accurate a public diagnosis, it might elicit a stronger reaction and in the process do little good. His point is at least partially about prudence. We live in the world, and the world is going to react. It's not fair, but that's what will happen. Anti-caution: We out not overlearn that lesson and make an idol of prudence. If someone speaks the truth, that is a value unto itself. The truth is an end. If that truth is commanded or informed by one's professional memberships and professional training, then sometimes (maybe always?) it must be uttered and pursued, regardless of prudential considerations. And as Mike Schilling Over There has reminded me, the principal bearers of blame are those who don't acknowledge the truth and those who create or pursue or gainsay the lies.

If you're right, you're right


I'll probably never be comfortable with public diagnoses. But that said--and in contrast to a point I made very recently--those public diagnoses of Mr. Trump that I've seen seem to be correct. Even if they're not correct, they're correct enough. Mr. Trump's actions have shown him to be a dangerous, petty man. So I'll end where I began above. I retract my blanket statement that mental health professionals ought never issue public diagnoses of public figures.

Wednesday, April 19, 2017

Auguries of a pivot?

[This post is cross-posted at Hit Coffee]

I better be quick about writing this because the underlying facts probably have a short shelf life. I learn that Mr. Trump now is expressing support for NATO [hat tip Noah Milman], seems to be taking a seemingly less extremist stance stance regarding China, and seems to be distancing himself from his alt-right advisor, Steve Bannon [paywall probably applies]. Are these indications of a sometimes-discussed "pivot" toward more responsible governance?


Maybe....but we have to decide what kind of pivot we're talking about.


There's the personal pivot. This is personal change resulting from an honest self-assessment. It can come quickly, as in a road to Damascus conversion experience. Or it can come gradually, and observable only long after the pivoting began. I don't see any fish scales falling from Mr. Trump's eyes, and if he is on the painful, gradual road to a personal reevaluation, we won't know for at least a few years.


Then there's the institutional pivot. This doesn't preclude a personal change, but it relies on the sets of incentives and constraints that work on the presidency. As I have tried to argue before,
But the argument that Mr. Trump will grow into the presidency doesn’t rely only on the proposition that he’ll become a better person. It also relies on the claim that our system of checks and balances might actually work and that the federal bureaucracy will do what bureaucracies do and somehow condition what Mr. Trump can accomplish.
I'd add other factors to "checks and balances' and "federal bureaucracy": federalism, civil society, the press, individual acts of resistance. In this second sense, it's possible we're about to see a pivot.


However and as with the first sense, we probably won't really know it's a true pivot for several years. One reason among many I distrust Mr. Trump is that he seems to change his mind on a whim. Pivoting hither and yon from one day to the next isn't the type of pivot I'm hoping for.


We also need to keep perspective. I think it's a good thing that Mr. Trump seems to be (this week) distancing himself from Mr. Bannon. But he shouldn't have hired him in the first place. He should have laughed away the suggestion when it was made. And "distancing himself from" isn't the same as firing.


There's finally the disturbing point that we are--or at least I am--looking for any sign of change and clinging to it, hoping it's change for real or at least contenting ourselves that it's not quite as bad at he moment as it seemed and may again seem at other times. Maybe the king won't show up to parliament in his underwear. Maybe the emperor will put on some clothes for once. I suppose it's kind of like dreading the moment an abuser comes home only to be relieved that tonight he's in a good mood.

Monday, April 17, 2017

On character disturbance

[This OP is a review of George Simon Jr.'s Character Disturbance: The Phenomenon of Our Age (Little Rock: Parkhurst Brothers, 2011). It is cross-posted with Hit Coffee here.]

Simon's thesis

Simon wants to warn lay readers about, and advise therapists on how to treat, what he calls "character disturbance." In its more severe stages, character disturbance leads to "character disorders," among which we can see varying degrees of personality styles that in their more extreme form might include what we know as pathological narcissism, "borderline" behavior, and sociopathy and psychopathy. We can identify character disturbances by choices people make, unfettered or insufficiently fettered, by the feelings of guilt and shame that afflict the rest of us.


Simon contrasts disturbed characters with "neurotics." These are susceptible to "the conflict that rages between primal urges and qualms of conscience." (That quotation comes from a blog post Simon has written. But he says basically the same thing, if less quotably, on page 13 of his book.) The average layperson and most therapists too often treat disturbed characters as neurotics acting from neurosis-like motivations. It's more useful, however, to consider that disturbed characters simply do what they do to get what they want as soon as they can and with the least amount of work possible. We should hold them responsible for their actions, and therapists should use Cognitive Behavioral Therapy (with a focus on the "behavioral") to give them the tools to change.


Character disturbance is the "phenomenon of our age" because our present-day society and culture encourage people to value their self-esteem over their self-respect. People with character disturbance already have a high self-esteem. They just don't have the self-respect necessary to feel shame at what their actions show them to be.

The myth of our disturbed age


The book's subtitle ("the phenomenon of our age"), preface, epilogue, and incidental remarks throughout all point to two questionable assumptions. The first is that character disturbance and character disorders are on the rise. The second is that the manner in which our current culture promotes and condones those ways of acting is unprecedented or somehow unique. Both assumptions imply that our current "near epidemic" [p. 14] is new and dangerous and threatens to undermine "the very foundations of our free society." [p. 19].


I defer in part and dissent in part. I defer to Simon's claims about his profession (he's a former therapist, now writer). He says that therapists in the US are generally trained in the "classical" model of neurosis, with nary a regard for treating character disturbance as a thing in itself. This classical model does a poor job of treating individuals with character disturbance so that in recent decades, therapists whose clients have character disturbances do not treat them effectively. If Simon is wrong on these points, that's something someone with more knowledge than I about the mental health professions and clinical practice can pursue.


I dissent, though, that we can know with Simon's confidence that character disturbance is more prevalent now than before and that "self-esteem culture" is somehow unique in the way it encourages character disturbance. Maybe self-esteem culture from ca. 1970 onward condones and encourages character disturbance, but other cultural trends from different eras could plausibly have done the same. I offer as one example white supremacy and the "lynch law" it inspired in the era of Jim Crow. You can probably think of other examples. I dissent also because it probably doesn't matter. Whether character disturbance is more prevalent, less prevalent, or about as prevalent as before, it is still a problem that needs to be addressed. If it is indeed a "near epidemic," then I guess we need to take more assertive measures, rethink our notions of crime and punishment, or go beyond the "political correctness...and the tendency to put personal beliefs and interests ahead of the general welfare"--all of which "impair our ability to conduct an honest discourse and debate." (p. 252).


But any "honest discourse" has to consider the limitations of what we know. One of Simon's key points of evidence--our rising prison population--could have other causes in addition to increased incidence of character disturbance. One might argue that the rising prison population represents society taking a firmer stand against character disturbance and disturbed characters are now facing their comeuppance. I don't endorse that argument, but it's consistent with Simon's evidence and yet also runs against the point he wishes to draw from that evidence.

Continuums and sharp distinctions


Simon posits a "continuum" between neurosis and character disturbance [p. 29]. Someone is neurotic to the extent that they don't have a character disturbance. Someone has a character disturbance to the extent that they are not neurotic.


Simon also notes the promise of a third way out of the continuum and toward what he calls "self-actualization altruism." Those who approach this altruism "freely and completely commit themselves to advancing the greater good. They are not neurotic because they have no driving desire to avoid guilt or shame for doing otherwise. Also, they're not out for personal glory or to be revered by society." [p. 29, italics in original] He doesn't dwell on that point. In fact, he's skeptical that there is a third way out and suggests that for practical purposes his continuum makes more sense.


But even so, I'd like to see more discussion about the continuum than Simon offers. Too quickly he jumps from discussing the continuum to distinguishing between neurotics and people with character disturbance. He does not discuss the positions on the continuum where many (most?) of us likely fall. Maybe the turn toward "self-actualization altruism" happens never or only rarely. But is there then, as an alternative, an optimal place on the continuum for us to be?


Such a discussion is probably beyond the scope of the book. Perhaps Simon needs to draw sharp distinctions because 1) his audience includes laypersons like me as well as experts like him; 2) his goal is to warn us about character disturbances and advise us on how to deal with them; and 3) you can cover only so much in any book and still have it be readable.

So...you know it when you see it?


Let's grant that for sake of readability Simon must make sharp distinctions between the character-disturbed and the rest of us, but how do we know who the character-disturbed or character-disordered are? He gives some clues, especially in Chapter 6, "Habitual Behavior Patterns Fostering and Perpetuating Character Disturbance." Most of these patterns boil down to denying or deflecting responsibility for harmful actions.


But in a broader sense, how do we know, especially in the "edge" cases where someone is character "disturbed" but not badly enough to be character "disordered"? How do we--especially the laypersons who seem to be part of Simon's target audience--discern whether someone is character disturbed as opposed to being neurotically disturbed?


Maybe if someone acts like a character disturbed person, we should treat them as such for our own self-protection and let the mental health professionals sort out the underlying causes. It's probably on balance good to learn how to call out responsibility deflection whether or not the deflector is a disturbed character or merely an anguished neurotic. In some cases, it's probably better to simply disengage regardless of where the deflector falls on the continuum.


Maybe we shouldn't seek to "know." Maybe judgment is for the Lord, and discernment is for a competent and licensed mental health professional. But that doesn't sit well with me, either. One purpose of Simon's work is to warn laypersons like me about these people. And while provisionally speaking I can learn a lot about how to respond to responsibility avoidance, part of how I respond depends on my general assessment of their character. If someone resorts to the trick of changing the subject when I bring up a problem it matters a lot to me whether that's a one-off or part of a pattern of behavior.


Maybe the trick, then, is to find patterns. But there are patterns and then patterns on the patterns. Maybe I've just been lucky, but even the people I've known who I consider "character disordered" sometimes defy their own patterns.

The problem of suffering and compassion


My concern about knowing or discerning plays into another concern. If we actually have--and can say with confidence we have--an according to Hoyle disordered person before us, what role ought our compassion toward that person play?


Simon seems to say that the first compassionate thing to do would be to empower and help the victims. The second compassionate thing would be to help disturbed/disordered characters learn how to act differently. Cognitive Behavioral Therapy (with an emphasis on the "Behavioral") can help--provided the disturbed/disordered character accepts responsibility for his or her actions and actually is willing to do what is necessary to change.


What about before the magic moment(s) when the disturbed/disordered person realizes they need to change? I think Simon would say the best we can do is call them on their tactics and make them take responsibility for what they do. In those cases, "compassion" is beside the point.


But I'm left to wonder, do disturbed/disordered characters "suffer"? Simon seems to say no, at least not as "neurotics" do. Or if disturbed characters do suffer, it's only to the degree that they're also neurotic (remember the continuum above). Disturbed/disordered characters are basically out to get what they want. Simon might concede that getting everything one wishes betokens a deeper and underlying, unhappiness or suffering. But I think he would suggest that we should focus on the behaviors and bracket the other types of questions as not useful.

Parting thoughts


Neurotics come off pretty good in Simon's book. To the extent that he's targeting a lay audience, he's primarily targeting neurotics--and perhaps also  the "self-actualizing altruists"-- and not the disturbed characters qua disturbed characters. Neurotics make bad choices. But the key to helping them is work through the underlying issues, whatever those may be, in addition to introducing them to better coping behaviors.


Disturbed characters are different from you and me, especially if their disturbance is extreme enough to mark them as "disordered." There's hope for them, to be sure. At one point (I can't find the page number), he suggests that even those we'd call seriously psychopathic might ultimately attain something like redemption or rehabilitation. But he seems to want our takeaway to be that they are the bad guys (and gals). And we, who presumably fall somewhere on the "optimal" range of the "neurotic"/"disordered" continuum, are the good people just trying to survive. That bothers me, even if he's right. Especially if he's right.


There's something missing. Periodically, Simon hints that he too was once been a disturbed character, too. He refers (without specific examples) to other times of his life before he saw the light and started to change his behavior. He doesn't go into detail. And he probably shouldn't because that's not the book he's to be writing. However, if he ever chooses to write that book, I'll be sure to read it.

Sunday, March 12, 2017

So now you are cursed from the earth

[Cross-posted at Hitcoffee: please view that link for any updates.]

Dr. X, a friend of Hitcoffee, has warned against what some mental health professionals call the Dark Triad. This triad is, to quote Dr. X, a "personality organization that comprises three psychological traits: psychopathy, narcissism and Machiavellianism." People with that personality organization are dangerous. They are a problem that needs to be dealt with, especially if they are a coworker or in a position of responsibility.


What do we do with such people? In the comment thread to that post, Dr. X suggests that we fire them. To me, the obligation to fire implies that we shouldn't hire in the first place. If the dark triadic person is not independently wealthy and yet can't or shouldn't be hired, how should he or she fend for themselves? Perhaps once properly identified--either through that person's actions or through some sort of deep analysis--then we ought to consider civil commitment, or prison if justified. Or you can do the Philip K. Dick option: hunt down the androids and eliminate them. I reject that "solution" as does Dr. X and most (all?) others I"ve heard speak on it. But the terms of the discussion are consistent with certain conclusions.


Absent in the discussion on that thread and in the material Dr. X cites (or at least in the quoted portions of that material...I didn't read the linked-to articles), is a discussion of whether this personality organization is just how or what someone is, or if it has a (personal) history. If people develop into that organization or develop out of it. Not to call this an illness--it's not clear to me that the language of "personality organization" is a language about illness--but...is there a cure? Or are people just like that?


I'm obviously uncomfortable with the idea. Maybe it's naivete or wishful thinking. If such people exist, then they exist whether I like it or not. If almost by definition such people don't seek to change or improve or grow, then they don't. Sometimes survival and defense of the common good are important. My wish that such people who would imperil either don't exist doesn't mean that they don't.


These discussions remind me of the "mark of Cain" from Genesis. I thought it would be cool to incorporate an allusion to that story when talking about such people. But then I actually read the story, probably for the first time since I was a child. The story starts out as I remember. Cain kills Abel out of jealousy or envy or whatever. The Lord punishes him: "When you till the ground, it shall no longer yield its strength to you. A fugitive and a vagabond you shall be on the earth"


But it doesn't end there. Cain complains that it "will happen that anyone who finds me will kill me." To that the Lord commands that "whoever kills Cain, vengeance shall be taken on him sevenfold." And he sets a "mark" on Cain to warn people not to harm him.


I'm no expert in Biblical interpretations, and I imagine that that passage has been interpreted and reinterpreted through the ages. There's also a point of unclarity. The referent "him" on whom vengeance is to be meted sevenfold strikes me as amphibolous, at least in the version I'm quoting: I assume the vengeance is to be meted against the one who would harm Cain, but perhaps Cain is the recipient of the vengeance?
Still, the "mark" of Cain seems on my uninformed reading to be the opposite of what I had thought. It strikes me as a mark of mercy, or perhaps mercy tempered by a warning. People are not expressly forbidden to be wary of him or to stop him from further crimes, but they are forbidden to harm him.


Again, there may be other ways to interpret that story, and one might legitimately question whether that story ought to be a guide to anything. But that story exists and I can't shake it, just like I can't shake the possibility that dark triadic persons exist.

Monday, February 27, 2017

The madness of King Donald

[This post is cross-posted with Hit Coffee.]

Rabbi Michael Lerner warns against psychoanalyzing/diagnosing Mr. Trump (or any political leader, for that matter), especially when such psychoanalysis is intended as a tool for opposition. He points out that it's questionable to diagnose people without working with them for a long time in a therapeutic setting. Rather, he says, one should focus on actions instead of on the internal demons of one's opponent. (Mr. Lerner lists other reasons as well. Read the whole thing.)


I'm inclined to agree. I get very uneasy when I read of a psychotherapist or other mental health professional diagnose a politician with a disorder.


Occam's Razor can do some good here. If Mr. Trump is unstable, erratic, or unpredictable, his actions by themselves speak to how much we can trust him or how competent he is. Whether the diagnosis is right or wrong, we don't need it.


Or mostly we don't. Mr. Lerner's warning is an "editorial note" to another piece, "Trump as Narcissist," by Michael Brenner, also found at the above link.* Brenner makes several arguments that stand or fall on their own. But his key point is that Mr. Trump is a narcissist and we cannot expect the demands and incentives of the presidency to tame his narcissism.


That argument is marginally informed by whether Mr. Trump really and truly suffers from narcissism. If he does, there's less hope that he'll mature and grow into the presidency. If he doesn't, there's slightly more hope. And if a 25th amendment solution is at all in the offing, then maybe psychological unfitness is a way to invoke that process. (At the same time, I'm not sure we really want to invoke that process, and I am especially wary of admitting to that end testimony from mental health professionals who have not even met with Mr. Trump personally.) So...maybe diagnoses of the sort Mr. Brenner offers do some good after all.


But the argument that Mr. Trump will grow into the presidency doesn't rely only on the proposition that he'll become a better person. It also relies on the claim that our system of checks and balances might actually work and that the federal bureaucracy will do what bureaucracies do and somehow condition what Mr. Trump can accomplish. We may of course doubt whether any of this will happen or if it does, whether we'll welcome what the country would look like afterward. (For example, I'm glad that Michael Flynn has quit the National Security Agency, but I also share Noah Millman's concerns about the intelligence leaks that seem to have prompted his ouster.)


And for the record, I don't believe there's something epistemologically magical about the "months, or sometimes years" of working with a client that Mr. Lerner says is necessary to determine if a person suffers from a disorder. I acknowledge that the the diagnoser probably has to always base his or her decision on incomplete information. So maybe it's not entirely fair for me to claim the public diagnoses lack sufficient information.


That acknowledgement, however, doesn't change my mind that such health professionals are acting unprofessionally and to a certain extent dangerously in their public diagnoses. They're contributing to a discourse in which mental illness is seen as something shameful or to be feared. To my mind they're weaponizing techniques that originally were meant to help or at least understand people.


Such is not their intention, and it's not everything that they're doing. Some mental disorders and perhaps even "personality organizations" ought to disqualify a person from certain positions of responsibility, among them the presidency. When an apt case presents itself, then maybe these mental health professionals are doing a service in highlighting it. And as even Mr. Lerner notes, there is something to be said for noting certain "styles" of politics and cultural expression. He cites Christopher Lasch's study of the American "culture of narcissism, and I could cite Richard Hofstadter's essay on the "paranoid style" of American politics.


Maybe there's no "pure" approach. Maybe some harm has to be done for a greater good. I will probably not convince these mental health professionals otherwise. But I urge them to at least acknowledge and more forthrightly address the dangers of what they're doing.


*If you read Tikkun Olam a lot, you'll find that Mr. Lerner often attaches editorial comments to essays he publishes but disagrees with.

Saturday, February 4, 2017

Trumpwatch #3: on prioritizing Christian refugees

[Cross-posted with Hitcoffee]

A less discussed feature of the Mr. Trump's much discussed travel ban from January 27, 2017 (See full text here) [1] imposes a temporary (120 day) ban on the US Refugee Admissions Program [USRAP]. The suspension can be found in section 5 of that order. Section 5, subsection B contains the following language:
Upon the resumption of USRAP [US Refugee Admissions Program] admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality [emphasis added by GC]. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
Subsection E has this language,
Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution [emphasis added by GC], when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.
These clauses seem to prioritize admitting Christian refugees in preference to Muslim refugees. As far as I know, the refugees the US is most likely to receive right now come from Muslim-majority countries. That fact (if it is a fact) suggests Christian refugees have one more tool to draw on than Muslims do when claiming asylum. These clauses also reinforce Mr. Trump's statement elsewhere, on the Christian Broadcasting Network that he intends to prioritize Christians over others when it comes to admitting refugees [2]. On balance I think this preference is probably a bad thing. But it's a closer call than I believed at first.

Is this constitutional?


That question is more for the lawyers in the audience, although my lack of legal training won't prevent me from answering. There's a lot I'd need to know, that I don't know, to answer that question. The practical function of these religious exemptions would be to prioritize Christian refugees over Muslim ones. Whatever one thinks of such prioritization as policy, I don't think it's a slam dunk to say that it's unconstitutional. Here, by "unconstitutional" I mean a federal court will strike it down.

My layperson's understanding is that the federal judiciary grants wide latitude to the executive and to Congress in determining who gets let into the country. My layperson's understanding might be incorrect. But I can imagine a non-specious argument to support the above-referenced clauses from the EOse in court. That argument would run like this:
  1. Religious persecution is a legitimate reason to grant asylum.
  2. Religious persecution must be defined somehow.
  3. Limiting "religious persecution" to minority religions is a commonsense way to make that definition, inasmuch that a member of a majority religion is unlikely to be persecuted because he or she is a member of that religion.
  4. The language of this exemption would enable members of other religions, including Muslims, to request asylum for religious reasons presuming they are fleeing states in which Islam is a minority religion.

If it so happens that the "he religion of the individual is a minority religion in the individual’s country of nationality" language has been a standard test used by past administrations (and I don't know if it is), then one can advance a point number 5 to the argument above that the EO is only following precedent. Even if such language is standard practice and even if courts have generally deferred to the "political branches" on such matters, standard practice and deference can change. But I do think that speaking strictly in legal terms, it's not at all clear to me that this portion of the EO is unconstitutional.

More things I don't know


In a discussion at Ordinary Times on this matter, I was notified of a few things I didn't even realize I didn't know. I had trouble finding the exact comment, but someone suggested that "refugee status" ans "asylum status" are different things. I didn't know that.


In another thread, or subthread, some people argued that I misconceived of how asylum/refugee status gets assigned and suggested that pre-Trump, the standard practice and statutory/treaty obligations were to grant asylum for religious persecution because people are targeted for their religion, regardless of whether theirs is a minority religion. Those comments--right or wrong, probably neither wholly one or the other--are further reminders that I'm not an expert in the legalities or the history of the matter.

But it's a bad idea anyway


While I'm not prepared to say those portions of the EO are unconstitutional (again, using my constricted definition of "unconstitutional" as "something a federal court will likely strike down"), I'm prepared to say those exemptions are bad ideas. My first concern is practical. As some said in the above-mentioned Ordinary Times subthread, the "religious minority" standard seems to assign to immigration officials the duty to define what is and isn't a minority religion. How much does a religious practice have to differ from that of the majority to constitute a new religion? Can someone who practices a non-standard form of Islam (say, e.g., Wahabbism) claim religious asylum because it's a "minority religion"? Is there some sort of creed people have to profess? Do they have to know how to say "shibboleth" [probably safe for work, but it is a Youtube video]?

My other concern builds on the practicalities. Does this impose in practice a religious test? To me, a religious test for obtaining asylum strikes me as wrong. If we generally accept applications for asylum for religious persecution, perhaps those who apply ought to demonstrate they face persecution for their religion, but ought not to have to demonstrate they profess a certain religion as a precondition.

But still I hedge my bets


In the original draft of this post, I contemplated saying the "Christian preference" clauses appeal to Christians who believe the Golden Rule comes with an asterisk:

Do unto others* as you would have others do unto you. *....unless those others aren't Christian, then do whatever the hell you want.

But two concerns suggest my inclination to oppose those clauses of the EO is not quite as defensible as I thought. First, my "ought's" here conflict with each other. What if a non-Christian is persecuted because they are believed to be Christian? Ought that person be able to claim religious asylum even though they're not persecuted for "their" religion? Second, what if a religious group or ethno-religious group faces persecution directed specifically at it? In that case, it doesn't strike me as beyond the pale bad for the US to adopt a policy to help members of that group and it doesn't strike me as beyond the pale bad to define that policy in such a way as to make it easier for them to claim asylum. Consider this comment from Phil Ebersole at Unqualified Offerings:

....I have no problem with prioritizing Christian refugees, if that is the intent [of the clauses I mentioned above, which I had introduced into discussion there--GC]. Christians are subject to horrible persecution in the countries named under the order, as a result of the jihadist wars instigated by the United States and Saudi Arabia. They are persecuted even in the refugee camps, which is why they are under-represented among refugees admitted to the United States. They are 10 percent of the population of Syria, for example, but only a tiny number of the Syrian refugees admitted to the United States.

While I don't read Ebersole's blog much, it's worth looking at and I think if you do, you'll agree with me that Ebersole is no fanatic, right-wing or otherwise. Combine that with the fact that I'm just mostly ignorant of the situation in Syria or most of what goes on in West Asia. Yeah, I know there's a civil war, and I know that ISIS exists, and I know probably enough facts to earn me at least a B- on the final exam for a current affairs 101 class. But that's about it. If Ebersole is right, then perhaps that preference should somehow be policy. And because Congress dithers, maybe it is appropriate for the president to use what authority he has to expedite the policy.

What to oppose and why....that's an important question


I fall back on my criticisms against the religious exemption" clauses of the EO as bad policy. If things are as bad as Ebersole describes, Mr. Trump could do better than restrict most refugees but make special exemption that in practice seems designed to favor Christians. Why not a blanket religious exemption? Of course, I'm pro-admitting more refugees than the US has already and have no particular objection to them being Muslim or Christian. So my priors are very different from Mr. Trump's. I also fall back on what's unstated in the EO but stated at such events as that reported on the Christian Broadcasting Network.


Whatever effect the EO may have in practice, and whatever policy I might theoretically support would be consistent with the EO, the spirit animating it seems to be malicious in a way that similar policies implemented by Mr. Obama would not seem to me to be. I'm not sure citing that "spirit of malice" would or should be a viable strategy to contest the EO in court, but it is, in my opinion, to be opposed.


If I or we are going to criticize what Mr. Trump does, we need to focus on the particulars and why. Do we oppose the EO because it's unconstitutional, or is it unconstitutional because we oppose it? Do we oppose the EO because it seems to carve out a specific religious exemption, or do we oppose it because the exempted profess Christianity? Do we oppose it because it's bad policy, or because it's Mr. Trump's policy? Maybe these contrasts aren't as stark and "rhetorical" as they probably sound. Maybe Mr. Trump is so bad that even on-balance good (but still questionable) policies ought to be opposed.


In the meantime, of course, I realize that other people's lives and livelihoods are affected much more immediately than mine are. I'm in the cheap seats and am able to write these notes from my computer without really having to face (at least for now, knock on wood) the reality of what the US chooses to do.


[1] Executive order, "Protecting the Nation from Foreign Terrorist Entry into the United States," January 27, 2017, <https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states> [accessed February 4, 2017]


[2] David Brody, "Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority as Refugees," The Brody File [blog], January 27, 2017 <http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees> [accessed 1-30-2017]