thebulwark--2020-12-12--How the Classics Can Calm Our Nerves

How the Classics Can Calm Our Nerves

America is cooped up and petulant .
The combination of a pandemic and presidential election has turned our homes and even our minds into echo chambers of the soul .
We can ’ t get out of our own heads , and it shows .
People are angry at each other .
The result , of course , isn ’ t just more argument and raw nerves , but more sanctimony .
More absolute , chin-out hubris that we are always right , always morally pure , and always more clever than our dim-witted neighbors .
This impulse for moral @ @ @ @ @ @ @ diminish when we realize we don ’ t know as much as we think .
Or as the great physicist Richard Feynman put it : “ The first principle is that you must not fool yourself .
And you ’ re the easiest person to fool !
” Poll after poll confirms that Americans ( and not just Americans ) believe some outrageous things and don ’ t believe some very provable things .
We lack curiosity : We stop listening to new music somewhere around age 33 and our reading drops off @ @ @ @ @ @ @ over .
Most of us lack basic math skills , we ’ re financially illiterate , we ’ re regularly bamboozled by scams , and our powers of reasoning are , to put it mildly , limited , especially when logic and facts come into conflict with our political beliefs .
But we can overcome this and fix our corrupted culture of overconfidence .
As the great mathematician and philosopher Rene Descartes put it : “ If you would be a real seeker after truth , you must at least once in your @ @ @ @ @ @ @ , all things.
” More recently , British atheist and intellectual provocateur Christopher Hitchens put it : “ It is only when you have grazed on the lower slopes of your own ignorance , and begun to understand the great vistas of non-knowledge that you have , that you can claim to have been educated at all.
” How do we invest our time in a vast national project for the discovery of our own ignorance—and its gentle reduction ?
Americans don ’ t like to be reminded that we are limited in @ @ @ @ @ @ @ corrected by a communal movement of aspiration to self-improvement ( which is at the heart of most great American social movements ) .
In the middle of the last century , Americans—prodded by Mortimer Adler and University of Chicago President Robert Hutchins , joined a Great Books project .
Millions bought the classics and great novels and may have read some of them .
Even the mayor of Chicago declared a “ Great Books Week ” in the city .
Today ’ s intellectuals mock such communal efforts as middle-brow at best , @ @ @ @ @ @ @ worst .
But they ’ re wrong .
Great ideas never go out of style , they don ’ t belong to any race , and classical works by their nature are universal and will bring us together as a people .
A widespread rediscovery of the classics could have proved valuable as we headed into the pandemic .
The whole country , locked inside , could easily have warmed to online introductions of great classical thinkers—not lectures , but well-produced biographies , dramatic portrayals and renderings .
Look at what “ The @ @ @ @ @ @ @ for chess and what “ The Last Dance ” did for Michael Jordan .
Imagine what Netflix could do for Aristophanes , Cervantes , and Dante !
But what would really help things is if Americans dove into the original texts and gathered to talk about what they read .
In tents outside churches and community centers , in the parking lots next to soccer fields as our kids play , at backyard barbecues , and when it ’ s safe again , indoors .
All in fellowship .
All without the preening @ @ @ @ @ @ @ great knowledge in the impenetrable jargon of academic journals .
Let ’ s talk about great books in simple words that everyone can understand .
Our efforts must begin with the classical education found in the great Western canon , rooted deeply in the great Hebrew , Christian , Roman , and Greek thinkers who were so central to the discovery of scientific and moral truths .
But not only the West : We should draw as well on valuable contributions from China , Persia , India , and the Muslim world .
@ @ @ @ @ @ @ great Russian writers with their capacity for unpacking the hardest truths of life itself .
These great thinkers , prophets , writers , and lyricists have seen it all : “ There is nothing new under the sun.
” The exercise would be bracing .
The classics inveigh against confident ignorance .
In work after work , page after page , they revel in mocking the natural human instinct for laziness and illogic .
The Greek myths are replete with stories of human frailty and weakness .
But the classics tell a deeper @ @ @ @ @ @ @ .
Sacred scriptures tell the story of mankind ’ s hope in the face of evil and empire .
Socrates talks of the enduring bonds of love despite betrayal .
In great works , in great novels , and in the great thinkers , there is no easy slogan , just the hard slog .
Life is complex .
Interesting , but complex .
Imagine an America where neighbors gather to read the Sermon on the Mount in its entirety with fresh eyes and an open heart—without fear of conversion or political interpretation @ @ @ @ @ @ @ s enduring truths about family and home ?
How would Aristotle define the responsibilities of leaders and citizens in an age of pandemic ?
What can Epictetus teach us about how to overcome barriers of race ?
The great works of art often serve as a historical mirror for scientific discovery and cultural emphasis .
From the symmetrical work of the ancient Egyptians to the Baroque delicacy that met the eye of Isaac Newton , the cannon is filled with projects benefitting humankind in endless ways .
Where would it lead ?
Maybe @ @ @ @ @ @ @ they are now .
That ’ s fine .
But if America embraced the classics , both ancient and modern , recognizing our own vast ignorance of what has come before us , perhaps the conversations that follow would be more civil , more nuanced , more interesting , and most of all , happier .

America is cooped up and petulant. The combination of a pandemic and presidential election has turned our homes and even our minds into echo chambers of the soul. We can’t get out of our own heads, and it shows.
People are angry at each other. The result, of course, isn’t just more argument and raw nerves, but more sanctimony. More absolute, chin-out hubris that we are always right, always morally pure, and always more clever than our dim-witted neighbors.
This impulse for moral preening and boorish one-dimensional thinking will only diminish when we realize we don’t know as much as we think. Or as the great physicist Richard Feynman put it: “The first principle is that you must not fool yourself. And you’re the easiest person to fool!”
Poll after poll confirms that Americans (and not just Americans) believe some outrageous things and don’t believe some very provable things. We lack curiosity: We stop listening to new music somewhere around age 33 and our reading drops off a lot after our formal education is over. Most of us lack basic math skills, we’re financially illiterate, we’re regularly bamboozled by scams, and our powers of reasoning are, to put it mildly, limited, especially when logic and facts come into conflict with our political beliefs.
But we can overcome this and fix our corrupted culture of overconfidence. As the great mathematician and philosopher Rene Descartes put it: “If you would be a real seeker after truth, you must at least once in your life doubt, as far as possible, all things.”
More recently, British atheist and intellectual provocateur Christopher Hitchens put it: “It is only when you have grazed on the lower slopes of your own ignorance, and begun to understand the great vistas of non-knowledge that you have, that you can claim to have been educated at all.”
How do we invest our time in a vast national project for the discovery of our own ignorance—and its gentle reduction?
Americans don’t like to be reminded that we are limited in any way. But that can be corrected by a communal movement of aspiration to self-improvement (which is at the heart of most great American social movements). In the middle of the last century, Americans—prodded by Mortimer Adler and University of Chicago President Robert Hutchins, joined a Great Books project. Millions bought the classics and great novels and may have read some of them. Even the mayor of Chicago declared a “Great Books Week” in the city.
Today’s intellectuals mock such communal efforts as middle-brow at best, or a form of white-male neo-colonialism at worst. But they’re wrong. Great ideas never go out of style, they don’t belong to any race, and classical works by their nature are universal and will bring us together as a people.
A widespread rediscovery of the classics could have proved valuable as we headed into the pandemic. The whole country, locked inside, could easily have warmed to online introductions of great classical thinkers—not lectures, but well-produced biographies, dramatic portrayals and renderings. Look at what “The Queen’s Gambit” is doing for chess and what “The Last Dance” did for Michael Jordan. Imagine what Netflix could do for Aristophanes, Cervantes, and Dante!
But what would really help things is if Americans dove into the original texts and gathered to talk about what they read. In tents outside churches and community centers, in the parking lots next to soccer fields as our kids play, at backyard barbecues, and when it’s safe again, indoors. All in fellowship. All without the preening show-offs and pretentious blowhards who have wrapped great knowledge in the impenetrable jargon of academic journals.
Let’s talk about great books in simple words that everyone can understand. Our efforts must begin with the classical education found in the great Western canon, rooted deeply in the great Hebrew, Christian, Roman, and Greek thinkers who were so central to the discovery of scientific and moral truths. But not only the West: We should draw as well on valuable contributions from China, Persia, India, and the Muslim world. And then, of course, the great Russian writers with their capacity for unpacking the hardest truths of life itself. These great thinkers, prophets, writers, and lyricists have seen it all: “There is nothing new under the sun.”
The exercise would be bracing. The classics inveigh against confident ignorance. In work after work, page after page, they revel in mocking the natural human instinct for laziness and illogic. The Greek myths are replete with stories of human frailty and weakness.
But the classics tell a deeper story, too—of mankind overcoming these frailties. Sacred scriptures tell the story of mankind’s hope in the face of evil and empire. Socrates talks of the enduring bonds of love despite betrayal. In great works, in great novels, and in the great thinkers, there is no easy slogan, just the hard slog. Life is complex. Interesting, but complex.
Imagine an America where neighbors gather to read the Sermon on the Mount in its entirety with fresh eyes and an open heart—without fear of conversion or political interpretation? Or to discuss The Odyssey’s enduring truths about family and home? How would Aristotle define the responsibilities of leaders and citizens in an age of pandemic? What can Epictetus teach us about how to overcome barriers of race?
The great works of art often serve as a historical mirror for scientific discovery and cultural emphasis. From the symmetrical work of the ancient Egyptians to the Baroque delicacy that met the eye of Isaac Newton, the canon is filled with projects benefitting humankind in endless ways.
Where would it lead? Maybe everyone would go to the same place they are now. That’s fine. But if America embraced the classics, both ancient and modern, recognizing our own vast ignorance of what has come before us, perhaps the conversations that follow would be more civil, more nuanced, more interesting, and most of all, happier.


thebulwark--2020-12-11--Secessionists Joined the (Failed) Republican Effort to Steal the Election

[ Editor ’ s note : Soon after this article was published , the U.S. Supreme Court rejected the lawsuit described here . ]
A group of secessionists out West who have branded their states “ New California ” and “ New Nevada ” —no word from New New York—filed an amicus brief today joining with 100-plus Republican leaders urging the Supreme Court to cancel the legally cast votes of millions of Americans in four states and reinstall President Donald Trump against the will of the people .
This is not a trolly take on American news using the tropes @ @ @ @ @ @ @ World countries .
It is a simple accounting of what the totalitarian party has become .
The majority of the Republican party establishment—including the president himself , the runner-up in the last presidential primary , the House majority leader , and the chief law-enforcement officials in 17 states—is teaming up with a crank secessionist movement for a coup .
That is where we are at .
The latest distinguished gentleman to join this effort is Robert Thomas , a real-life Cousin Eddie-style conspiracist living somewhere near a nuclear testing site in Nevada but @ @ @ @ @ @ @ of the ( Old ) California bar .
Thomas is currently the chairman of the New Nevada State movement .
In an amicus brief written in support of the Texas attorney general ’ s proposed constitutional coup-via-SCOTUS , Thomas begins by addressing the question of standing , stating that the creation of “ New California State and New Nevada Sate [ sic ] is to stop the lawless actions of Governors Newsome [ sic again ] and Sisolak.
” A rocky start , sure , but in fairness to Mr. Thomas , we @ @ @ @ @ @ @ frankly elitist Supreme Court policy rejecting briefs in his natural form : cut-out magazine letters pasted onto a piece of construction paper .
Thomas ’ s closing request for the Court is to validate the standing of two new states that have seceded from the Union as well as to approve the efforts of his comrades-in-arms to invalidate the election by judicial fiat .
There it is .
“ Judicial restraint ” in action .
This astonishingly undemocratic filing echoes the tin-foil screeds Thomas has been sending off to local media outlets and @ @ @ @ @ @ @ his local supermarket .
Last year he wrote a letter to the editor of the Pahrump Valley Times about how Nevada was a “ tyrannical democracy ” and that laws that usurp God ’ s rights are “ not to be obeyed.
” Here ’ s the thing .
Crazy , bored coots in Nevada tootling off letters to the editor about the end times and overthrowing tyrants is nothing particularly new or noteworthy .
If Jon Ralston had a nickel for every one of these guys he ’ s met out there @ @ @ @ @ @ @ What ’ s new is that the coot claiming that democracy is tyrannical and must be disobeyed is making an argument that fits perfectly with the other Supreme Court briefs being filed by a preponderance of the members of a major political party .
Ted Cruz has offered to argue something not too dissimilar from Thomas ’ s secession+coup SCOTUS double header .
Liddle Marco thinks these filings are indistinguishable from those oh-so-heinous court cases that “ redefined marriage.
” ( Marco wanted to maintain the more traditional , Biblical marriage of one @ @ @ @ @ @ @ third wife is in labor . )
Again : 17 Republican AGs have filed briefs alongside Thomas , supported by 126 members of the House of Representatives ( up from 106 just yesterday .
Momentum ! )
.
The president ’ s Twitter feed indicates that , if anything , he doesn ’ t think the secession+coup gambit goes far enough .
Meanwhile , graybeard conservative “ thinkers ” are signing a letter in support of a similar scheme .
That ’ s what it has come to in December 2020 .
The @ @ @ @ @ @ @ email guy ranting about how “ democracy is tyranny ” is a replacement-level participant in a Republican party and conservative establishment for whom overthrowing tyrannical democracy is now the entry-level position .
The New Nevada Party is the GOP and the GOP is the New Nevada Party .

[Editor’s note: Soon after this article was published, the U.S. Supreme Court rejected the lawsuit described here.]
A group of secessionists out West who have branded their states “New California” and “New Nevada”—no word from New New York—filed an amicus brief today joining with 100-plus Republican leaders urging the Supreme Court to cancel the legally cast votes of millions of Americans in four states and reinstall President Donald Trump against the will of the people.
This is not a trolly take on American news using the tropes normally employed to describe events in Third World countries. It is a simple accounting of what the totalitarian party has become.
The majority of the Republican party establishment—including the president himself, the runner-up in the last presidential primary, the House majority leader, and the chief law-enforcement officials in 17 states—is teaming up with a crank secessionist movement for a coup.
That is where we are at.
Podcast · August 15 2023 A.B. Stoddard: All the Ex-President’s Conspirators Donald Trump has been a low-rent mobster for his entire career, and now he’s getting…
The latest distinguished gentleman to join this effort is Robert Thomas, a real-life Cousin Eddie-style conspiracist living somewhere near a nuclear testing site in Nevada but filing with the Court as a member of the (Old) California bar. Thomas is currently the chairman of the New Nevada State movement.
In an amicus brief written in support of the Texas attorney general’s proposed constitutional coup-via-SCOTUS, Thomas begins by addressing the question of standing, stating that the creation of “New California State and New Nevada Sate [sic] is to stop the lawless actions of Governors Newsome [sic again] and Sisolak.”
A rocky start, sure, but in fairness to Mr. Thomas, we can likely attribute these errors to the frankly elitist Supreme Court policy rejecting briefs in his natural form: cut-out magazine letters pasted onto a piece of construction paper.
Thomas’s closing request for the Court is to validate the standing of two new states that have seceded from the Union as well as to approve the efforts of his comrades-in-arms to invalidate the election by judicial fiat.
There it is. “Judicial restraint” in action.
This astonishingly undemocratic filing echoes the tin-foil screeds Thomas has been sending off to local media outlets and, I presume, shouting about at his local supermarket. Last year he wrote a letter to the editor of the Pahrump Valley Times about how Nevada was a “tyrannical democracy” and that laws that usurp God’s rights are “not to be obeyed.”
Here’s the thing. Crazy, bored coots in Nevada tootling off letters to the editor about the end times and overthrowing tyrants is nothing particularly new or noteworthy. If Jon Ralston had a nickel for every one of these guys he’s met out there he’d be Jeff Bezos.
What’s new is that the coot claiming that democracy is tyrannical and must be disobeyed is making an argument that fits perfectly with the other Supreme Court briefs being filed by a preponderance of the members of a major political party.
Ted Cruz has offered to argue something not too dissimilar from Thomas’s secession+coup SCOTUS double header. Liddle Marco thinks these filings are indistinguishable from those oh-so-heinous court cases that “redefined marriage.” (Marco wanted to maintain the more traditional, Biblical marriage of one man fucking a porn star while his third wife is in labor.)
Again: 17 Republican AGs have filed briefs alongside Thomas, supported by 126 members of the House of Representatives (up from 106 just yesterday. Momentum!). The president’s Twitter feed indicates that, if anything, he doesn’t think the secession+coup gambit goes far enough. Meanwhile, graybeard conservative “thinkers” are signing a letter in support of a similar scheme.
That’s what it has come to in December 2020. The crazy FW: FW: FW: email guy ranting about how “democracy is tyranny” is a replacement-level participant in a Republican party and conservative establishment for whom overthrowing tyrannical democracy is now the entry-level position.
The New Nevada Party is the GOP and the GOP is the New Nevada Party.


thebulwark--2020-12-14--Should Trump Be Pardoned? Should He Be Prosecuted?

Should President Trump be prosecuted for crimes after he leaves office ?
There can be no single overarching answer to this question ; the relevant facts and possible scenarios are too multifarious .
Neither a charitable thumbs-up ( “ show restraint ” ) nor a gladiatorial thumbs-down ( “ nail the SOB ” ) works here .
Like most things legal , the answer is both yes and no , depending on who , what , when and where .
But even in those instances where it would be impossible , inappropriate , or merely unwise to use the criminal @ @ @ @ @ @ @ , he can be held accountable politically , and concrete changes to laws , regulations and norms can reduce the damage that a future Trump might try to inflict on the nation .
Here ’ s one way to break down the prosecutorial decisions that the Biden administration and state criminal justice systems will have to make when Donald Trump leaves office .
Federal Crimes Unrelated to Actions Taken in Trump ’ s Capacity as President The U.S. attorney for the Southern District of New York is reportedly investigating Trump for a variety @ @ @ @ @ @ @ with presidential actions .
We don ’ t know the full scope of those investigations , but reports suggest that they include tax fraud , defrauding banks and other lenders , campaign finance violations , and embezzlement of inaugural committee funds .
Who knows what else lurks on the hard drives of the Southern District of New York , or around the coffee stations in the offices of other U.S. attorneys .
But this is more than enough to keep Trump ’ s lawyers busy for another decade .
As Jonathan Chait pointed @ @ @ @ @ @ @ York magazine , the prospect of an electorally defeated Trump would immediately set off a conflict between two fundamental democratic values , the rule of law and mutual toleration : The dilemma , in short , is whether in Trump ’ s case the principle that no person is above the law can be reconciled with the principle that in the United States of America presidents don ’ t send their political opponents , much less their predecessors , to prison .
The short answer is that it can ’ t .
Failure @ @ @ @ @ @ @ send anybody else to prison , merely because he served a term as president , would send the unmistakable message that presidents are above the law .
At the same time , prosecuting him after he leaves office would inevitably stink of political retribution , and would further inflame the nation .
In a situation where there are no good options , decisions still must be made .
In this particular situation , it would be a mistake to go all-in on either side .
We need to do the best we can @ @ @ @ @ @ @ vindicate the rule of law , while at the same time bending over backwards to avoid the appearance of political retribution as much as possible , knowing of course that we can ’ t please everybody .
The best way to thread that needle is for Biden to take a hands-off approach , let the professional prosecutors in the Southern District of New York do their job and move forward with their investigations , all the while making it clear that he will never question their decisions to indict or not .
That @ @ @ @ @ @ @ it will vindicate the rule of law in a fashion that avoids , as much as possible , the appearance of political retribution .
Any possibility of Trump being held criminally accountable for federal crimes , of course , would be frustrated if he were pardoned for “ offenses against the United States.
” This language—used as blanket coverage for violations of federal law in the broadest presidential pardons , as in President Ford ’ s pardon of President Nixon—is derived from the Constitution ’ s clause regarding the president ’ s pardon @ @ @ @ @ @ @ .
shall have Power to grant Reprieves and Pardons for Offenses against the United States.
” A valid , enforceable pardon would prohibit federal prosecutors from holding Trump criminally accountable for any pre-pardon conduct .
But there ’ s a catch .
Not all pardons are alike .
The legal force of a pardon in this case would depend more on who grants it than what it says .
And , assuming Biden does not issue such a pardon , there are only two other possibilities : Either Trump purports to pardon himself @ @ @ @ @ @ @ the next person in the line of succession , Vice President Mike Pence , do the dirty work for him .
If Trump makes an early exit and Pence pardons him after being sworn in , it ’ s game over .
While ethically odious , such a pardon would be constitutionally sound and legally binding .
Assuming the pardon is sufficiently broad , attempting to charge Trump with federal crimes would be a nonstarter .
Maybe investigations could be completed , maybe the case against Trump could be set forth in an @ @ @ @ @ @ @ Organization , the defunct Trump Foundation , one of his kids or employees , the campaign committee , etc . )
, but Trump himself would escape criminal accountability for any federal crimes committed prior to the date of the pardon .
But if Trump purports to pardon himself , all bets should be off .
Federal prosecutors should view a purported self-pardon as an invitation to file any charges warranted by the facts , full stop .
Criminal indictments would not only hold him legally accountable , but also would vindicate the @ @ @ @ @ @ @ president is not a king , can not be his own judge and jury , and does not have the constitutional authority to pardon himself .
There is no precedent for a president pardoning himself , constitutional scholars are divided on whether it is possible , and the only way to test a purported self-pardon would be to file charges , let Trump assert a defense that his self-pardon immunizes him from prosecution , and defeat that defense in court .
• Biden and his attorney general shouldn ’ t take any position @ @ @ @ @ @ @ personal and financial crimes unrelated to actions taken in his presidential capacity .
• They should make it clear that any decision to prosecute should be left where it belongs , in the hands of professional prosecutors who make charging decisions every day , and that Trump should be treated no better or worse than any other American .
• If there ’ s sufficient evidence to indict , that ’ s fine too .
• If Trump is pardoned by Pence , the pardon has to be respected , but ways to @ @ @ @ @ @ @ criminally ) responsible should be explored .
• If Trump attempts to pardon himself , it should be challenged by bringing any appropriate criminal charges against him .
It isn ’ t always easy to determine which of the actions Trump took in his presidential capacity were actual violations of criminal statutes , as distinguished from moral crimes or unconscionable deviations from longstanding American norms .
The truths that we hold self-evident were never self-evident to Trump .
Comedian Bill Maher calls it the “ Gus principle.
” In the 1976 movie Gus @ @ @ @ @ @ @ his mule , Gus , to kick a soccer ball on command .
When the owner of a hapless California football team discovers Gus ’ s unique skill , he drafts Gus to kick field goals .
After a referee objects , the owner successfully argues that there ’ s nothing in the rules that says that a player must be human .
Self-evident ?
Maybe to you .
Prohibited ?
Show me the rule .
Separate small children from their parents and hold them in cages ?
Order your attorney general to @ @ @ @ @ @ @ ?
Blurt out classified information to a foreign adversary ?
Undermine the credibility of the American intelligence community ?
Use the White House as a prop for a political rally ?
Self-evident ?
Maybe to you .
Prohibited ?
Show me a statute that says it ’ s a crime for a president to do any of that .
A remedy for this kind of norm-busting , un-American conduct is more likely to come in the political sphere than in a criminal trial .
In the absence of clear , directly on-point statutes @ @ @ @ @ @ @ shoehorn this conduct into broader statutes would likely fail in court .
Failing in court would , in turn , result in the opposite of accountability—it would lend a gloss of legality to the conduct and provide ammunition to the witch-hunt crowd .
At the same time , a handful of Trump ’ s presidential actions fit quite nicely into a criminal framework .
Three come to mind : ( 1 ) Trump ’ s obstruction of the Mueller investigation , ( 2 ) Trump ’ s Ukraine quid pro quo , and @ @ @ @ @ @ @ to overturn the results of the 2020 presidential election .
Although there are criminal statutes that clearly apply to each of these actions , the Biden administration should nevertheless decline to charge Trump with these crimes .
Trump ’ s obstruction of the Mueller investigation and his Ukraine quid pro quo have already been partially litigated .
( More on this in a moment . )
Although his crusade to subvert and overturn the result of the 2020 presidential election—still going on , as of this writing—is usually discussed in terms of its @ @ @ @ @ @ @ serious criminal implications .
His attempts to strong-arm Republican state officials and legislatures into overturning a democratic election , thereby disenfranchising millions of voters , is arguably a violation of 18 U.S.C .
Section 241 , which makes it a crime to “ oppress , threaten , or intimidate ” any person in the free exercise of any right secured by the Constitution or the laws of the United States .
Other statutes dealing with undermining or interfering with elections would also come into play .
But any attempt to indict and convict @ @ @ @ @ @ @ unholy mess , with only the remotest possibility of success and the certainty of a political Armageddon .
There is no way that the country would come out the better for it .
That doesn ’ t mean that these sorry episodes , or others like them , should be forgiven or forgotten , just that they should be addressed outside of the criminal justice system .
James Fallows , writing in the Atlantic , proposes a two-pronged approach to redressing Trump ’ s misdeeds and destructive acts .
First , Biden should @ @ @ @ @ @ @ executive branch by rebuilding every part of it : “ Every executive agency and department needs top-to-bottom attention.
” That pretty much goes without saying .
The second prong of Fallows ’ s proposal is a bit more ambitious .
Fallows calls on Biden to launch independent investigations into three “ catastrophes ” inflicted on the nation by Trump : the mismanagement of the coronavirus pandemic , the border policies under which U.S. officials separated children from their parents , and the “ purposeful or negligent destruction of the norms of government , @ @ @ @ @ @ @ ” For this , Fallows proposes that Biden establish a commission , perhaps something like the 9/11 Commission .
Bob Bauer and Jack Goldsmith , both of whom have served at high levels the executive branch , offer a far more comprehensive and ambitious set of proposals to make it more difficult for a future president to exploit fissures in the structure of the presidency in a fashion similar to Trump .
In their book , After Trump : Reconstructing the Presidency , Bauer and Goldsmith propose more than fifty concrete changes to @ @ @ @ @ @ @ that govern the presidency .
Far too detailed to summarize in a few words , the proposals include prohibitions on presidential obstruction of justice , reforms designed to reduce foreign state influence in elections and financial conflicts of interest , amendments of bribery statutes , prohibition of self-pardons , revisions of rules governing Justice Department independence and special counsel regulations , and much more .
While these proposals may look more like a wish list than a realistic plan of action , Bauer and Goldsmith recognize that getting from here to there is @ @ @ @ @ @ @ book is thus primarily about how to think about reform after Trump leaves the scene , whether that is in 2021 or 2025 .
Our primary aim is to spark informed debate about whether and how reform should proceed.
” The point is that the criminal justice system is not the only , and probably not the best , way to redress the damage Trump has done to our nation .
There are other potential avenues to protect us from another Trump , whether it ’ s some kind of commission , legislative @ @ @ @ @ @ @ norms into written standards , or some combination of all of the above .
• The Biden administration should decline to prosecute alleged crimes arising out of actions taken by Trump in his capacity as president .
• An independent commission or some similar mechanism should be established to investigate the facts relating the Trump administration ’ s busting of norms and fully report all findings to the American public .
• Legislative and administrative reforms of the kind suggested by Bauer and Goldsmith should be pursued vigorously to prevent , as much @ @ @ @ @ @ @ like Trump .
Russiagate , Obstruction of the Mueller Investigation , and Ukraine Claims revolving around Trump ’ s involvement in Russia ’ s interference in the 2016 election and the Ukraine quid pro quo belong in a separate category because they have already been partially ( albeit incompetently ) adjudicated .
The Russian interference claims were the subject of the Mueller investigation .
Mueller ’ s team made a prosecutorial decision not to indict Trump on conspiracy charges arising out of his alleged collusion with Russia .
That decision was not based @ @ @ @ @ @ @ a sitting president can ’ t be indicted .
Rather , Mueller found that the evidence was insufficient to support such a charge .
While Mueller did not find that there was no “ collusion , ” as falsely claimed by Trump and his supporters , he did conclude that whatever collusion had taken place did not rise to the level of a crime .
Agree or disagree , the books are closed on that .
Not so with regard to the second part of the Mueller Report , dealing with obstruction of @ @ @ @ @ @ @ duty , Mueller failed to do the job he was given : to determine whether Trump had committed a crime , regardless of whether he could be indicted for that crime while sitting in office .
By doing so , he left the decision on obstruction of justice in the tender , loving hands of Trump ’ s Roy Cohn , Attorney General Bill Barr .
Barr ’ s Department of Justice predictably made a formal decision that the evidence of obstruction of justice was insufficient to constitute a crime , despite the @ @ @ @ @ @ @ overwhelming evidence of criminal obstruction by Trump .
This sorry episode leaves open the legitimate question of whether the Biden administration ’ s DOJ should reverse Barr ’ s corrupt decision and indict Trump for obstruction of justice after he leaves office .
Andrew Weissmann , senior prosecutor in the Mueller investigation , argues that they should .
Weissmann acknowledges that such a prosecution would further divide the country and stoke claims that a Biden administration ’ s Justice Department was exacting political revenge , but argues that Trump ’ s criminal exposure @ @ @ @ @ @ @ the repercussions of a prosecution are outweighed by the negative precedent that would be set by allowing Trump ’ s obstruction to go undeterred .
I think it is fair to say that there is a rebuttable presumption that new administrations should not criminalize acts taken by previous presidents unless they are so clearly criminal violations , and so clearly serious , that failure to act would be a dereliction of duty .
One could certainly argue that , in light of the facts laid out in the Mueller Report , the exception @ @ @ @ @ @ @ Trump ’ s obstruction of the investigation was both clear and deadly serious .
Yet the fact that Mueller reached no conclusion on whether the conduct constituted the crime of obstruction of justice , and the sitting attorney general concluded that it did not , means that any fresh criminal prosecution would look like a do-over , an attempt by one administration to criminalize conduct that the previous administration had affirmatively decided was not a crime .
Mueller was far too timid in his handling of this matter , and Barr too politically @ @ @ @ @ @ @ But it would still look like a do-over and an act of political revenge .
Worse , there would be a very significant risk that a prosecution , which would inevitably devolve into a swearing contest about exactly who said what to whom and an unfathomable attempt to get inside Trump ’ s mind , would fail to yield a conviction .
Like his attempt to overturn the 2020 election , Trump ’ s already-adjudicated obstruction of justice should be addressed politically , not in a criminal trial .
The same goes for @ @ @ @ @ @ @ ’ s attempt to condition military aid to Ukraine on receiving a political favor in return reeks of bribery .
Yet , when they launched impeachment proceedings based on that sorry event , the Democratic House notably declined to characterize Trump ’ s conduct as a crime , and Senate Republicans acquitted Trump in part on the grounds that no crime had been alleged or ( in their view ) committed .
This one is over .
Any attempt to relitigate it in a criminal court would likely be both futile and too @ @ @ @ @ @ @ should not relitigate either the obstruction of justice charges arising out of the Mueller investigation or the Ukraine quid pro quo .
It has been widely reported that the Manhattan district attorney is conducting , as Weissmann put it , “ a classic white-collar investigation into tax and bank fraud ” in which Trump is likely a target .
The attorney general for the state of New York is also conducting similar investigations which to date have been civil in nature , but they could quickly turn into criminal inquiries .
These are @ @ @ @ @ @ @ s personal and financial activities .
They have nothing to do with anything Trump did as president , and there is no reason to believe that Trump has been singled out for something that would not be prosecuted if committed by anyone else .
That makes this one easy .
The Biden administration should have absolutely nothing to do with any decisions made by the Manhattan D.A .
or the state of New York or any other state on whether to prosecute Trump under their laws just as they would prosecute any other @ @ @ @ @ @ @ doesn ’ t extend to violations of state law , any pardon or purported pardon for federal crimes would be irrelevant .
• New York and other states should treat Trump the same way they would treat anybody else , including charging him with crimes if the facts so warrant .
• The Biden administration should take no position on it one way or the other .
1 ) Both state and federal investigations dealing with matters unrelated to actions taken by Trump in his capacity as president should be pursued in the @ @ @ @ @ @ @ against anybody else .
2 ) If Trump leaves office before the end of his term and Pence pardons him , no federal charges can be brought .
3 ) However , if Trump purports to pardon himself , federal prosecutors should not forgo any prosecution they were otherwise planning to bring .
4 ) Trump should not be prosecuted for actions taken in his capacity as president , including Russiagate , obstruction of justice , Ukraine , and attempting to overturn the results of the 2020 election .
5 ) However , @ @ @ @ @ @ @ the criminal justice system , and the Biden administration should actively pursue concrete changes to the laws , regulations , and norms that govern the presidency .

Should President Trump be prosecuted for crimes after he leaves office?
There can be no single overarching answer to this question; the relevant facts and possible scenarios are too multifarious. Neither a charitable thumbs-up (“show restraint”) nor a gladiatorial thumbs-down (“nail the SOB”) works here. Like most things legal, the answer is both yes and no, depending on who, what, when and where.
But even in those instances where it would be impossible, inappropriate, or merely unwise to use the criminal justice system to hold Trump legally accountable, he can be held accountable politically, and concrete changes to laws, regulations and norms can reduce the damage that a future Trump might try to inflict on the nation.
Here’s one way to break down the prosecutorial decisions that the Biden administration and state criminal justice systems will have to make when Donald Trump leaves office.
Federal Crimes Unrelated to Actions Taken in Trump’s Capacity as President
The U.S. attorney for the Southern District of New York is reportedly investigating Trump for a variety of crimes that have nothing to do with presidential actions. We don’t know the full scope of those investigations, but reports suggest that they include tax fraud, defrauding banks and other lenders, campaign finance violations, and embezzlement of inaugural committee funds.
Who knows what else lurks on the hard drives of the Southern District of New York, or around the coffee stations in the offices of other U.S. attorneys. But this is more than enough to keep Trump’s lawyers busy for another decade.
As Jonathan Chait pointed out in a pre-election article in New York magazine, the prospect of an electorally defeated Trump would immediately set off a conflict between two fundamental democratic values, the rule of law and mutual toleration:
The experience of Black racial oppression shows that the absence of the rule of law is a pervasive, terrifying insecurity. A society without the rule of law is one in which the strong prey upon the weak. The small-scale version is a town where you need the local warlord or mafia boss to solve any problem or dispute; the nation-state version is Vladimir Putin’s Russia, where the mafia is the government and bribery is endemic. Mutual toleration means that political opponents must accept the legitimacy and legality of their opponents. If elected leaders can send their opponents to prison and otherwise discredit them, then leaders are afraid to relinquish power lest they be imprisoned themselves. The criminalization of politics is a kind of toxin that breaks down the cooperation required to sustain a democracy. This, along with the misogyny, was what made Trump’s embrace of “Lock her up!” so terrifying in 2016. He was already using the threat of imprisoning opponents as a political-campaign tool. If the government is run by lawbreakers, though, the state faces a dilemma: Either the principle of equal treatment under the law or the tradition of a peaceful transition of power will be sacrificed. It’s hard to imagine any outcome under which the rule of law survives Trump unscathed.
The dilemma, in short, is whether in Trump’s case the principle that no person is above the law can be reconciled with the principle that in the United States of America presidents don’t send their political opponents, much less their predecessors, to prison.
The short answer is that it can’t.
Failure to prosecute Trump for crimes that would send anybody else to prison, merely because he served a term as president, would send the unmistakable message that presidents are above the law. At the same time, prosecuting him after he leaves office would inevitably stink of political retribution, and would further inflame the nation.
In a situation where there are no good options, decisions still must be made. In this particular situation, it would be a mistake to go all-in on either side. We need to do the best we can to hold Trump accountable, and thereby vindicate the rule of law, while at the same time bending over backwards to avoid the appearance of political retribution as much as possible, knowing of course that we can’t please everybody.
The best way to thread that needle is for Biden to take a hands-off approach, let the professional prosecutors in the Southern District of New York do their job and move forward with their investigations, all the while making it clear that he will never question their decisions to indict or not. That won’t please everyone, but it will vindicate the rule of law in a fashion that avoids, as much as possible, the appearance of political retribution.
Any possibility of Trump being held criminally accountable for federal crimes, of course, would be frustrated if he were pardoned for “offenses against the United States.” This language—used as blanket coverage for violations of federal law in the broadest presidential pardons, as in President Ford’s pardon of President Nixon—is derived from the Constitution’s clause regarding the president’s pardon power: “The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States.” A valid, enforceable pardon would prohibit federal prosecutors from holding Trump criminally accountable for any pre-pardon conduct.
But there’s a catch. Not all pardons are alike.
The legal force of a pardon in this case would depend more on who grants it than what it says. And, assuming Biden does not issue such a pardon, there are only two other possibilities: Either Trump purports to pardon himself or he resigns in order to let the next person in the line of succession, Vice President Mike Pence, do the dirty work for him.
If Trump makes an early exit and Pence pardons him after being sworn in, it’s game over. While ethically odious, such a pardon would be constitutionally sound and legally binding. Assuming the pardon is sufficiently broad, attempting to charge Trump with federal crimes would be a nonstarter. Maybe investigations could be completed, maybe the case against Trump could be set forth in an indictment against somebody else (the Trump Organization, the defunct Trump Foundation, one of his kids or employees, the campaign committee, etc.), but Trump himself would escape criminal accountability for any federal crimes committed prior to the date of the pardon.
But if Trump purports to pardon himself, all bets should be off.
Federal prosecutors should view a purported self-pardon as an invitation to file any charges warranted by the facts, full stop. Criminal indictments would not only hold him legally accountable, but also would vindicate the principle that in the United States a president is not a king, cannot be his own judge and jury, and does not have the constitutional authority to pardon himself. There is no precedent for a president pardoning himself, constitutional scholars are divided on whether it is possible, and the only way to test a purported self-pardon would be to file charges, let Trump assert a defense that his self-pardon immunizes him from prosecution, and defeat that defense in court.
Verdict:
Biden and his attorney general shouldn’t take any position on whether Trump should be prosecuted for personal and financial crimes unrelated to actions taken in his presidential capacity.
They should make it clear that any decision to prosecute should be left where it belongs, in the hands of professional prosecutors who make charging decisions every day, and that Trump should be treated no better or worse than any other American.
If there’s insufficient evidence to support a criminal charge, that’s fine.
If there’s sufficient evidence to indict, that’s fine too.
If Trump is pardoned by Pence, the pardon has to be respected, but ways to hold Trump politically (as opposed to criminally) responsible should be explored.
If Trump attempts to pardon himself, it should be challenged by bringing any appropriate criminal charges against him.
Federal Crimes Related to Presidential Actions
It isn’t always easy to determine which of the actions Trump took in his presidential capacity were actual violations of criminal statutes, as distinguished from moral crimes or unconscionable deviations from longstanding American norms.
The truths that we hold self-evident were never self-evident to Trump. Comedian Bill Maher calls it the “Gus principle.” In the 1976 movie Gus, a young Yugoslavian farm boy teaches his mule, Gus, to kick a soccer ball on command. When the owner of a hapless California football team discovers Gus’s unique skill, he drafts Gus to kick field goals. After a referee objects, the owner successfully argues that there’s nothing in the rules that says that a player must be human.
Self-evident? Maybe to you. Prohibited? Show me the rule.
Separate small children from their parents and hold them in cages? Order your attorney general to reward your friends and punish your enemies? Blurt out classified information to a foreign adversary? Undermine the credibility of the American intelligence community? Use the White House as a prop for a political rally?
Self-evident? Maybe to you. Prohibited? Show me a statute that says it’s a crime for a president to do any of that.
A remedy for this kind of norm-busting, un-American conduct is more likely to come in the political sphere than in a criminal trial. In the absence of clear, directly on-point statutes criminalizing this specific behavior, trying to shoehorn this conduct into broader statutes would likely fail in court. Failing in court would, in turn, result in the opposite of accountability—it would lend a gloss of legality to the conduct and provide ammunition to the witch-hunt crowd.
At the same time, a handful of Trump’s presidential actions fit quite nicely into a criminal framework. Three come to mind: (1) Trump’s obstruction of the Mueller investigation, (2) Trump’s Ukraine quid pro quo, and (3) Trump’s attempts to overturn the results of the 2020 presidential election.
Although there are criminal statutes that clearly apply to each of these actions, the Biden administration should nevertheless decline to charge Trump with these crimes.
Trump’s obstruction of the Mueller investigation and his Ukraine quid pro quo have already been partially litigated. (More on this in a moment.)
Although his crusade to subvert and overturn the result of the 2020 presidential election—still going on, as of this writing—is usually discussed in terms of its catastrophic political consequences, it also has serious criminal implications. His attempts to strong-arm Republican state officials and legislatures into overturning a democratic election, thereby disenfranchising millions of voters, is arguably a violation of 18 U.S.C. Section 241, which makes it a crime to “oppress, threaten, or intimidate” any person in the free exercise of any right secured by the Constitution or the laws of the United States. Other statutes dealing with undermining or interfering with elections would also come into play.
But any attempt to indict and convict Trump on these charges would be an unholy mess, with only the remotest possibility of success and the certainty of a political Armageddon. There is no way that the country would come out the better for it.
That doesn’t mean that these sorry episodes, or others like them, should be forgiven or forgotten, just that they should be addressed outside of the criminal justice system.
James Fallows, writing in the Atlantic, proposes a two-pronged approach to redressing Trump’s misdeeds and destructive acts. First, Biden should address the corruption and corrosion of the executive branch by rebuilding every part of it: “Every executive agency and department needs top-to-bottom attention.” That pretty much goes without saying.
The second prong of Fallows’s proposal is a bit more ambitious. Fallows calls on Biden to launch independent investigations into three “catastrophes” inflicted on the nation by Trump: the mismanagement of the coronavirus pandemic, the border policies under which U.S. officials separated children from their parents, and the “purposeful or negligent destruction of the norms of government, the most important being the electoral process.” For this, Fallows proposes that Biden establish a commission, perhaps something like the 9/11 Commission.
Bob Bauer and Jack Goldsmith, both of whom have served at high levels the executive branch, offer a far more comprehensive and ambitious set of proposals to make it more difficult for a future president to exploit fissures in the structure of the presidency in a fashion similar to Trump.
In their book, After Trump: Reconstructing the Presidency, Bauer and Goldsmith propose more than fifty concrete changes to the laws, regulations, and norms that govern the presidency. Far too detailed to summarize in a few words, the proposals include prohibitions on presidential obstruction of justice, reforms designed to reduce foreign state influence in elections and financial conflicts of interest, amendments of bribery statutes, prohibition of self-pardons, revisions of rules governing Justice Department independence and special counsel regulations, and much more.
While these proposals may look more like a wish list than a realistic plan of action, Bauer and Goldsmith recognize that getting from here to there is a long-term uphill climb: “This book is thus primarily about how to think about reform after Trump leaves the scene, whether that is in 2021 or 2025. Our primary aim is to spark informed debate about whether and how reform should proceed.”
The point is that the criminal justice system is not the only, and probably not the best, way to redress the damage Trump has done to our nation. There are other potential avenues to protect us from another Trump, whether it’s some kind of commission, legislative fixes, regulation reform, converting unwritten norms into written standards, or some combination of all of the above.
Verdict:
The Biden administration should decline to prosecute alleged crimes arising out of actions taken by Trump in his capacity as president.
An independent commission or some similar mechanism should be established to investigate the facts relating the Trump administration’s busting of norms and fully report all findings to the American public.
Legislative and administrative reforms of the kind suggested by Bauer and Goldsmith should be pursued vigorously to prevent, as much as possible, future presidents from behaving like Trump.
Russiagate, Obstruction of the Mueller Investigation, and Ukraine
Claims revolving around Trump’s involvement in Russia’s interference in the 2016 election and the Ukraine quid pro quo belong in a separate category because they have already been partially (albeit incompetently) adjudicated.
The Russian interference claims were the subject of the Mueller investigation. Mueller’s team made a prosecutorial decision not to indict Trump on conspiracy charges arising out of his alleged collusion with Russia. That decision was not based on the DOJ’s position that a sitting president can’t be indicted. Rather, Mueller found that the evidence was insufficient to support such a charge. While Mueller did not find that there was no “collusion,” as falsely claimed by Trump and his supporters, he did conclude that whatever collusion had taken place did not rise to the level of a crime.
Agree or disagree, the books are closed on that.
Not so with regard to the second part of the Mueller Report, dealing with obstruction of justice.
In a shocking dereliction of duty, Mueller failed to do the job he was given: to determine whether Trump had committed a crime, regardless of whether he could be indicted for that crime while sitting in office. By doing so, he left the decision on obstruction of justice in the tender, loving hands of Trump’s Roy Cohn, Attorney General Bill Barr. Barr’s Department of Justice predictably made a formal decision that the evidence of obstruction of justice was insufficient to constitute a crime, despite the fact that the Mueller Report laid out overwhelming evidence of criminal obstruction by Trump.
This sorry episode leaves open the legitimate question of whether the Biden administration’s DOJ should reverse Barr’s corrupt decision and indict Trump for obstruction of justice after he leaves office.
Andrew Weissmann, senior prosecutor in the Mueller investigation, argues that they should. Weissmann acknowledges that such a prosecution would further divide the country and stoke claims that a Biden administration’s Justice Department was exacting political revenge, but argues that Trump’s criminal exposure is clear, and that concerns about the repercussions of a prosecution are outweighed by the negative precedent that would be set by allowing Trump’s obstruction to go undeterred.
This is a close call.
I think it is fair to say that there is a rebuttable presumption that new administrations should not criminalize acts taken by previous presidents unless they are so clearly criminal violations, and so clearly serious, that failure to act would be a dereliction of duty. One could certainly argue that, in light of the facts laid out in the Mueller Report, the exception to the rule should apply here. Trump’s obstruction of the investigation was both clear and deadly serious.
Yet the fact that Mueller reached no conclusion on whether the conduct constituted the crime of obstruction of justice, and the sitting attorney general concluded that it did not, means that any fresh criminal prosecution would look like a do-over, an attempt by one administration to criminalize conduct that the previous administration had affirmatively decided was not a crime.
Mueller was far too timid in his handling of this matter, and Barr too politically compromised to make a good-faith decision. But it would still look like a do-over and an act of political revenge. Worse, there would be a very significant risk that a prosecution, which would inevitably devolve into a swearing contest about exactly who said what to whom and an unfathomable attempt to get inside Trump’s mind, would fail to yield a conviction.
Like his attempt to overturn the 2020 election, Trump’s already-adjudicated obstruction of justice should be addressed politically, not in a criminal trial.
The same goes for the Ukraine quid pro quo. Trump’s attempt to condition military aid to Ukraine on receiving a political favor in return reeks of bribery. Yet, when they launched impeachment proceedings based on that sorry event, the Democratic House notably declined to characterize Trump’s conduct as a crime, and Senate Republicans acquitted Trump in part on the grounds that no crime had been alleged or (in their view) committed.
This one is over. Any attempt to relitigate it in a criminal court would likely be both futile and too hot to handle.
Verdict:
Federal prosecutors should not relitigate either the obstruction of justice charges arising out of the Mueller investigation or the Ukraine quid pro quo.
State Law Claims
It has been widely reported that the Manhattan district attorney is conducting, as Weissmann put it, “a classic white-collar investigation into tax and bank fraud” in which Trump is likely a target. The attorney general for the state of New York is also conducting similar investigations which to date have been civil in nature, but they could quickly turn into criminal inquiries.
These are serious investigations that deal with Trump’s personal and financial activities. They have nothing to do with anything Trump did as president, and there is no reason to believe that Trump has been singled out for something that would not be prosecuted if committed by anyone else.
That makes this one easy. The Biden administration should have absolutely nothing to do with any decisions made by the Manhattan D.A. or the state of New York or any other state on whether to prosecute Trump under their laws just as they would prosecute any other citizen. Since the presidential pardon power doesn’t extend to violations of state law, any pardon or purported pardon for federal crimes would be irrelevant.
Verdict:
New York and other states should treat Trump the same way they would treat anybody else, including charging him with crimes if the facts so warrant.
The Biden administration should take no position on it one way or the other.
Final Verdict
So, to summarize:
1) Both state and federal investigations dealing with matters unrelated to actions taken by Trump in his capacity as president should be pursued in the normal course, just as they would against anybody else.
2) If Trump leaves office before the end of his term and Pence pardons him, no federal charges can be brought.
3) However, if Trump purports to pardon himself, federal prosecutors should not forgo any prosecution they were otherwise planning to bring.
4) Trump should not be prosecuted for actions taken in his capacity as president, including Russiagate, obstruction of justice, Ukraine, and attempting to overturn the results of the 2020 election.
5) However, Trump should be held accountable outside of the criminal justice system, and the Biden administration should actively pursue concrete changes to the laws, regulations, and norms that govern the presidency.


thebulwark--2020-12-14--Fixing Job-Based Health Insurance

Fixing Job-Based Health Insurance

Employer-sponsored insurance ( ESI ) is central to U.S. health care .
A system that arose without substantial forethought in the postwar period quickly became the expected route to health coverage for working-age Americans and is now an entrenched and dominant characteristic of the U.S. system of private insurance .
But it is not without flaws : Its failure to control costs is hurting employees as businesses compensate for rising premiums by limiting wage and salary growth .
Congress needs to enact reforms to improve ESI ’ s cost-effectiveness and value to workers .
Fixing job-based insurance is difficult and @ @ @ @ @ @ @ but the coming years may offer an opportunity to build bipartisan support for sensible reforms for two reasons .
First , President-elect Joe Biden supports ESI , as do most Republicans .
He opposes Medicare for All because it would remove the option for workers to stay with job-based insurance plans , many of which have been painstakingly negotiated with the unions .
Second , Biden and his team are looking for policy levers to accelerate wage growth for middle-income Americans .
Slowing the cost growth in ESI would translate directly into higher @ @ @ @ @ @ @ Budget Office ( CBO ) estimates that 155 million people under age 65—or nearly 57 percent of the non-elderly population—will be enrolled in employer plans in 2020 , even after the pandemic pushes millions of workers out of their jobs and thus also out of their insurance .
In 1998 , 67 percent of the non-elderly U.S. population was enrolled in ESI .
CBO expects it to remain at around 57 percent through the coming decade .
ESI is not a guaranteed option for all American workers .
The Affordable Care Act ( @ @ @ @ @ @ @ coverage doesn ’ t apply to many smaller firms .
In 2018 , among workers with incomes below the federal poverty line , only 33 percent had an offer of ESI .
In contrast , among workers with incomes above 400 percent of the poverty line , 79 percent were eligible to enroll in a job-based plan .
Employer coverage is costly .
According to the Kaiser Family Foundation ’ s annual survey of employer plans , in 2019 firms paid about 74 percent of the $ 21,300 average annual premium for family @ @ @ @ @ @ @ of the costs .
This division of the premium burden creates the false impression that employers are carrying most of the load .
In reality , workers in competitive industries pay their employers ’ shares too because their wages and salaries are adjusted to make room for insurance plan costs .
When ESI premiums rise , there is less room for growth in cash compensation .
This downward pressure on wages from health benefits is not new : It has persisted for many years .
From 2009 to 2018 , total compensation for @ @ @ @ @ @ @ of 2.6 percent , yet wages grew by an average of less than 1 percent annually over the same period .
Many large firms recognize that their health offerings lack cost discipline and have tried to implement corrective measures .
There have been modest successes .
But no single company can , on its own , fix ESI because they compete for skilled workers against other firms .
Further , federal tax law encourages companies to be generous with their health benefits by exempting employer-paid premiums from workers ’ payroll and income tax @ @ @ @ @ @ @ taxable , firms and workers have an incentive to emphasize generosity in health coverage when deciding how to adjust compensation levels .
Expansive employer coverage contributes to system-wide cost escalation .
Hospitals and physician groups organize their operations in part to appeal to workers covered by generous job-based insurance .
When that coverage lacks meaningful cost discipline , the entire system becomes more expensive .
The solution is a change in federal tax law so all employers must grapple with controlling costs .
The ACA attempted to do this with the “ Cadillac @ @ @ @ @ @ @ for workers , but companies with high-cost plans were scheduled to pay a 40 percent excise tax on premiums above specified thresholds .
It was originally scheduled to go into effect in 2018 .
The business community , along with labor unions , strongly opposed the Cadillac tax , both during the initial debate on the ACA and after the law was enacted .
Congress reacted to this pressure by delaying it twice before finally repealing it altogether in 2019 .
To avoid repeating the Cadillac tax saga , Congress should use incentives @ @ @ @ @ @ @ attempt at ESI reform .
Here , based on a new AEI white paper I recently wrote , is how such incentives could work .
A Firm-Level Tax Credit for Compliant Coverage .
CBO estimates that the aggregate value of the tax subsidy for ESI is $ 288 billion in 2020 , or $ 1,850 per person enrolled in the coverage .
Congress can redirect a portion of this subsidy to firms , in the form of a new tax credit , without imposing any additional costs on workers .
An example of @ @ @ @ @ @ @ above , the average 2020 ESI premium for family coverage is expected to be about $ 21,300 , with workers paying just over one-quarter of the premium ( $ 5,800 ) and firms paying the balance ( $ 15,500 ) .
The employer share of the premium is not counted as wages for payroll or income tax purposes .
This implicit tax subsidy is worth about $ 4,600 annually for workers in the 22 percent tax bracket .
The tax treatment of ESI could be altered to give firms a credit for each @ @ @ @ @ @ @ , firms could get $ 500 annually for workers selecting individual coverage and $ 1,000 for those selecting family policies .
Firms would be required to apply these credits to the premiums workers owe for ESI enrollment .
Further , firms receiving the credits would be required to limit the amount of their premium payments on behalf of their workers to what they paid in the year prior to enactment of this reform less roughly three times the value of the credit , or $ 1,500 for individuals and $ 3,000 for families @ @ @ @ @ @ @ total amounts employers could contribute toward coverage would ensure that the aggregate federal subsidy for ESI insurance did not increase with the initiation of the federal premium credits for ESI plans .
Employers would be required to hold harmless their employees by passing through the $ 1,500 or $ 3,000 reduction in premium contributions in the form of higher cash wages .
Firms in competitive industries will move in this direction even without a federal requirement because of the need to offer compensation that attracts prospective employees .
However , a requirement to @ @ @ @ @ @ @ that the reform would worsen their financial position .
Defined Contributions and Standardized Coverage .
Under this proposed reform , workers would pay more in taxes and premiums , but they would come out ahead if the overall reform lowered the cost of insurance without significantly diminishing the value of their insurance coverage ( as discussed in more detail below ) .
For instance , an 8 percent drop in premiums would mean a net gain of $ 1,800 annually for workers when taking into account their wage gains , the taxes they @ @ @ @ @ @ @ Cutting health expenses by 8 percent is realistic with the right combination of policies .
CBO has estimated that a similar reform in Medicare ( “ premium support ” ) would reduce overall costs by 8 percent after a transition period .
Comparable savings are possible with ESI if “ premium support ” reforms are attached to the new federal tax credits .
First , employers should be required to convert their premium payments into defined-contribution payments that their employees control so that workers will have strong incentives to enroll in low-cost plans @ @ @ @ @ @ @ provides $ 15,000 in defined-contribution support for family coverage , and two plans are available with premiums of $ 18,000 and $ 19,000 , workers choosing the less expensive option would save $ 1,000 annually .
Second , the benefits covered by competing ESI plans must be standardized as far as possible in terms of the medical care covered and the cost-sharing required by the enrollees .
The firms themselves would need to enforce this requirement by ensuring the plan offerings they make available to their employees do not have glaring omissions of @ @ @ @ @ @ @ differences in deductible amounts and required copayments .
The goal is to force intensive competition at the level of premiums charged for insurance and not to allow insurers to confuse the choice by altering the services that are covered by the plans .
With standardized benefits , insurers would be forced to deliver cost control by eliminating waste and inefficiency in the provision of care , which is where the focus must be to slow overall cost growth .
Third , firms participating in this voluntary reform must give their employees meaningful coverage @ @ @ @ @ @ @ , but workers should have a say in how strictly their plans manage care on their behalf .
Federal Certification of High-Value Plans .
In the 1970s and 1980s , the Health Maintenance Organization Act help jumpstart the nascent managed-care industry .
Something similar is needed today to encourage employers to offer plans with proven track records of high-quality and cost control .
Requiring firms to offer at least one federally certified plan would ensure workers have access to the most cost-effective offerings , as measured by objective and uniform criteria .
Certified @ @ @ @ @ @ @ effective employee-engagement programs , including shared savings arrangements for workers who select low-cost and high-value providers of services .
For instance , insurers should make price shopping for routine services and procedures an important factor in controlling cost growth by giving their employees a portion of the savings when they select providers of services with prices below a reasonable benchmark ( such as the median price in the market area for that service ) .
Further , certified plans should be required to demonstrate how they will protect enrollees from any and all @ @ @ @ @ @ @ the ACA , exchanges are used to organize the market for individuals buying coverage on their own .
The exchanges bring together tens of thousands of consumers into larger pools , which improves the purchasing leverage of those shopping for coverage .
Insurers establish uniform plan offerings and premiums for all participants in the same exchange pool .
Private exchanges also exist in the employer sector , with several large-benefit consulting companies sponsoring them for their clients , but enrollment has been modest .
The federal government could facilitate the emergence of a @ @ @ @ @ @ @ increasing the federal tax credit by 10 percent for coverage secured through a private exchange .
Firms using the exchanges would be relieved of having to organize coverage offerings for their employees ; their only obligation would be to make defined contribution payments to the exchanges in support of the enrollment choices of their workers .
The private exchanges would be required to follow premium support principles to ensure strong competition and cost control .
The Private Sector Can not Do This Alone Job-based health insurance is a pillar of U.S. health care @ @ @ @ @ @ @ .
Cost pressures are contributing to wage stagnation and income inequality , which are serious concerns beyond what they imply for accessing needed medical care .
The private sector can not fix ESI ’ s problems on its own because firms compete for workers through their benefit offerings .
Congress must step in and modernize ESI with stronger incentives for cost control .
Firms should retain the power to pursue their own innovations and to tailor their offering to the needs of their workers .
But sensible reforms would help all firms keep @ @ @ @ @ @ @ their workers .
That ’ s the key to ensuring employees continue to see value in retaining ESI as the main source of coverage for themselves and their families .

Employer-sponsored insurance (ESI) is central to U.S. health care. A system that arose without substantial forethought in the postwar period quickly became the expected route to health coverage for working-age Americans and is now an entrenched and dominant characteristic of the U.S. system of private insurance. But it is not without flaws: Its failure to control costs is hurting employees as businesses compensate for rising premiums by limiting wage and salary growth. Congress needs to enact reforms to improve ESI’s cost-effectiveness and value to workers.
Fixing job-based insurance is difficult and politically controversial in any political moment, but the coming years may offer an opportunity to build bipartisan support for sensible reforms for two reasons. First, President-elect Joe Biden supports ESI, as do most Republicans. He opposes Medicare for All because it would remove the option for workers to stay with job-based insurance plans, many of which have been painstakingly negotiated with the unions. Second, Biden and his team are looking for policy levers to accelerate wage growth for middle-income Americans. Slowing the cost growth in ESI would translate directly into higher cash-based compensation for workers.
The Congressional Budget Office (CBO) estimates that 155 million people under age 65—or nearly 57 percent of the non-elderly population—will be enrolled in employer plans in 2020, even after the pandemic pushes millions of workers out of their jobs and thus also out of their insurance. In 1998, 67 percent of the non-elderly U.S. population was enrolled in ESI. CBO expects it to remain at around 57 percent through the coming decade.
ESI is not a guaranteed option for all American workers. The Affordable Care Act (ACA) requirement that employers offer health coverage doesn’t apply to many smaller firms. In 2018, among workers with incomes below the federal poverty line, only 33 percent had an offer of ESI. In contrast, among workers with incomes above 400 percent of the poverty line, 79 percent were eligible to enroll in a job-based plan.
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Employer coverage is costly. According to the Kaiser Family Foundation’s annual survey of employer plans, in 2019 firms paid about 74 percent of the $21,300 average annual premium for family coverage, with workers paying the remainder of the costs. This division of the premium burden creates the false impression that employers are carrying most of the load. In reality, workers in competitive industries pay their employers’ shares too because their wages and salaries are adjusted to make room for insurance plan costs. When ESI premiums rise, there is less room for growth in cash compensation.
This downward pressure on wages from health benefits is not new: It has persisted for many years. From 2009 to 2018, total compensation for middle-income households grew at an average rate of 2.6 percent, yet wages grew by an average of less than 1 percent annually over the same period.
Many large firms recognize that their health offerings lack cost discipline and have tried to implement corrective measures. There have been modest successes. But no single company can, on its own, fix ESI because they compete for skilled workers against other firms. Further, federal tax law encourages companies to be generous with their health benefits by exempting employer-paid premiums from workers’ payroll and income tax obligations. Because cash wages are fully taxable, firms and workers have an incentive to emphasize generosity in health coverage when deciding how to adjust compensation levels.
Expansive employer coverage contributes to system-wide cost escalation. Hospitals and physician groups organize their operations in part to appeal to workers covered by generous job-based insurance. When that coverage lacks meaningful cost discipline, the entire system becomes more expensive.
A Proposal to Rein in Costs
The solution is a change in federal tax law so all employers must grapple with controlling costs. The ACA attempted to do this with the “Cadillac tax”: Job-based coverage remained tax-free for workers, but companies with high-cost plans were scheduled to pay a 40 percent excise tax on premiums above specified thresholds. It was originally scheduled to go into effect in 2018.
The business community, along with labor unions, strongly opposed the Cadillac tax, both during the initial debate on the ACA and after the law was enacted. Congress reacted to this pressure by delaying it twice before finally repealing it altogether in 2019.
To avoid repeating the Cadillac tax saga, Congress should use incentives rather than penalties to jumpstart a new attempt at ESI reform. Here, based on a new AEI white paper I recently wrote, is how such incentives could work.
A Firm-Level Tax Credit for Compliant Coverage. CBO estimates that the aggregate value of the tax subsidy for ESI is $288 billion in 2020, or $1,850 per person enrolled in the coverage. Congress can redirect a portion of this subsidy to firms, in the form of a new tax credit, without imposing any additional costs on workers.
An example of how it might work: As mentioned above, the average 2020 ESI premium for family coverage is expected to be about $21,300, with workers paying just over one-quarter of the premium ($5,800) and firms paying the balance ($15,500). The employer share of the premium is not counted as wages for payroll or income tax purposes. This implicit tax subsidy is worth about $4,600 annually for workers in the 22 percent tax bracket.
The tax treatment of ESI could be altered to give firms a credit for each employee enrolled in coverage. For instance, firms could get $500 annually for workers selecting individual coverage and $1,000 for those selecting family policies. Firms would be required to apply these credits to the premiums workers owe for ESI enrollment. Further, firms receiving the credits would be required to limit the amount of their premium payments on behalf of their workers to what they paid in the year prior to enactment of this reform less roughly three times the value of the credit, or $1,500 for individuals and $3,000 for families. Placing such dollar limits on the total amounts employers could contribute toward coverage would ensure that the aggregate federal subsidy for ESI insurance did not increase with the initiation of the federal premium credits for ESI plans.
Employers would be required to hold harmless their employees by passing through the $1,500 or $3,000 reduction in premium contributions in the form of higher cash wages. Firms in competitive industries will move in this direction even without a federal requirement because of the need to offer compensation that attracts prospective employees. However, a requirement to do so will lessen workers’ fears that the reform would worsen their financial position.
Defined Contributions and Standardized Coverage. Under this proposed reform, workers would pay more in taxes and premiums, but they would come out ahead if the overall reform lowered the cost of insurance without significantly diminishing the value of their insurance coverage (as discussed in more detail below). For instance, an 8 percent drop in premiums would mean a net gain of $1,800 annually for workers when taking into account their wage gains, the taxes they owe, and their premium payments.
Cutting health expenses by 8 percent is realistic with the right combination of policies. CBO has estimated that a similar reform in Medicare (“premium support”) would reduce overall costs by 8 percent after a transition period.
Comparable savings are possible with ESI if “premium support” reforms are attached to the new federal tax credits.
First, employers should be required to convert their premium payments into defined-contribution payments that their employees control so that workers will have strong incentives to enroll in low-cost plans. For instance, if an employer provides $15,000 in defined-contribution support for family coverage, and two plans are available with premiums of $18,000 and $19,000, workers choosing the less expensive option would save $1,000 annually.
Second, the benefits covered by competing ESI plans must be standardized as far as possible in terms of the medical care covered and the cost-sharing required by the enrollees. The firms themselves would need to enforce this requirement by ensuring the plan offerings they make available to their employees do not have glaring omissions of covered services, or arbitrary and unreasonable differences in deductible amounts and required copayments. The goal is to force intensive competition at the level of premiums charged for insurance and not to allow insurers to confuse the choice by altering the services that are covered by the plans. With standardized benefits, insurers would be forced to deliver cost control by eliminating waste and inefficiency in the provision of care, which is where the focus must be to slow overall cost growth.
Third, firms participating in this voluntary reform must give their employees meaningful coverage options. The benefits must be standardized, but workers should have a say in how strictly their plans manage care on their behalf.
Federal Certification of High-Value Plans. In the 1970s and 1980s, the Health Maintenance Organization Act help jumpstart the nascent managed-care industry. Something similar is needed today to encourage employers to offer plans with proven track records of high-quality and cost control. Requiring firms to offer at least one federally certified plan would ensure workers have access to the most cost-effective offerings, as measured by objective and uniform criteria.
Certified plans also should be required to maintain effective employee-engagement programs, including shared savings arrangements for workers who select low-cost and high-value providers of services. For instance, insurers should make price shopping for routine services and procedures an important factor in controlling cost growth by giving their employees a portion of the savings when they select providers of services with prices below a reasonable benchmark (such as the median price in the market area for that service). Further, certified plans should be required to demonstrate how they will protect enrollees from any and all surprise bills.
Private Exchanges. Under the ACA, exchanges are used to organize the market for individuals buying coverage on their own. The exchanges bring together tens of thousands of consumers into larger pools, which improves the purchasing leverage of those shopping for coverage. Insurers establish uniform plan offerings and premiums for all participants in the same exchange pool.
Private exchanges also exist in the employer sector, with several large-benefit consulting companies sponsoring them for their clients, but enrollment has been modest.
The federal government could facilitate the emergence of a stronger private exchange system for employers by increasing the federal tax credit by 10 percent for coverage secured through a private exchange. Firms using the exchanges would be relieved of having to organize coverage offerings for their employees; their only obligation would be to make defined contribution payments to the exchanges in support of the enrollment choices of their workers. The private exchanges would be required to follow premium support principles to ensure strong competition and cost control.
The Private Sector Cannot Do This Alone
Job-based health insurance is a pillar of U.S. health care, but there are signs of stress. Cost pressures are contributing to wage stagnation and income inequality, which are serious concerns beyond what they imply for accessing needed medical care.
The private sector cannot fix ESI’s problems on its own because firms compete for workers through their benefit offerings.
Congress must step in and modernize ESI with stronger incentives for cost control. Firms should retain the power to pursue their own innovations and to tailor their offering to the needs of their workers. But sensible reforms would help all firms keep premiums from squeezing what they can pay their workers. That’s the key to ensuring employees continue to see value in retaining ESI as the main source of coverage for themselves and their families.