Tuesday, January 31, 2017

100 Blessings a Day: a Practice of Mindfulness

I've been part of a study group for the past year.  We meet once a month for a couple of hours to dabble in Talmud. The Talmud consists of 50 some volumes that together comprise one of the main texts of rabbinic Judaism. There is the Torah, there is Mishna--the earliest written redaction of the oral law based on Torah, written down by the beginning of the third century CE in Northern Israel after destruction of the Temple in 70 CE--there is Gemarra, commentary on the Mishna, and there are stories, parables, and colorful characters.

Talmud, they say is an ocean, and we are dipping our toes. But it's interesting.

I have been posting my embellished class notes at a separate blog site HERE. I've posted the beginnings of the latest post, below...


Our Talmud Circle met on January 8, 2017, the 202nd anniversary of the Battle of New Orleans. The wind howled like the voice of God at Sinai. We were not deterred. We are in Berakhot 35b and the rabbis are concerned about work-life balance, how to approach their study of Torah, and the role of blessings. They, and Rabbi Peretz, set forth a vision of blessings as a practice of mindfulness. 

Worker/Workers from Judah Touro to Mark Zuckerberg

Sanctuary of Touro Synagogue,
New Orleans (built 1908)
Judah Touro (1775-1854), the son of a Hazzan at a Sephardic synagogue in Newport, Rhode Island, moved to New Orleans in 1801. When the United States acquired the city in the Louisiana Purchase two years later, business boomed. Touro was all in. He enlisted in Andrew Jackson’s army and hauled ammunition in the War of 1812. Wounded in the war, he survived to become a wealthy merchant, shipper, real estate mogul, and, eventually, philanthropist. He donated for the construction of a free public library in New Orleans in 1824. He purchased a Christian Church building, assumed its debts, and allowed the congregation to use the building rent-free in perpetuity. “I am a friend to religion” he explained to a friend. He founded a home for the poor and a hospital. He purchased slaves in order to free them. And at his death he donated more than $500,000 to various institutions, including Jewish institutions in 14 states, (the equivalent of $2 billion today as a percentage of GDP). 

Touro thrived in the American milieu. His philanthropy embraced Christian, secular, as well as Jewish causes. In 1840 he gave $10,000 for the restoration of the Bunker Hill memorial and was eulogized for it by Daniel Webster. He gave money for the assistance of persecuted Christians in Jerusalem. Through all this “Touro remained a devout Jew, although for most of his life he was without a synagogue,” says his Philanthropy Roundtable profile. It seems safe to say that in the taxonomy of Rabbi Peretz’s cousin in Los Angeles, he was an assimilated earner/earner, and a philanthropist.

Is it enough? Was Judah Touro a good Jew? The rabbis wrestled with the question.
. . . (con't at Talmud Circle Blog)

If this looks vaguely of interest, read the rest at my Talmud Circle blog, and do consider reading The Five Books of Krinsky

Follow me on Twitter @RolandNikles

Saturday, January 28, 2017

UN 1951 Convention on Refugees: "without discrimination as to race, religion or country of origin."

Hurricane Sandy/Photo: Newscom

A disturbing Saturday morning at the end of a disturbing week.

Yesterday, President Trump issued an executive order on immigration that slammed "the border shut for an Iranian scientist headed to a lab in Boston, an Iraqi who had worked as an interpreter for the United States Army, and a Syrian refugee family headed to a new life in Ohio, among countless others," reports the NYT (Trump's Immigraton Ban blocks travelers at airport and around the Globe).

500,000 U.S. green card holders might be affected.  Some have been barred from reentering the country says Vox. Others are being admitted after extensive questioning.

The executive order is being challenged in the U.S. District Court for the Eastern District of New York in an action, Darweesh v Trump, filed yesterday by the ACLU, supported by Yale law school, The International Refugee Assistance Program, the National Immigration Law Center, and Kilpatrick Townsend & Stockton, LLP.

We think of refugees from past wars. Anne Frank's family was deterred/kept out by our protectionist, navel gazing, immigration policy in 1941. We think of 1939 and the ship St. Louis, filled with 935 German refugees, which was turned away outside Miami.

We think of our invasion of Iraq in 2003 and the fact that we have significantly contributed to the Syrian refugee crisis. We have a moral responsibility. Trump is turning our nation's back on this moral responsibility.

What the order does in part...

Trump's executive order directs the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to "immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat."

... and what, pray tell, does Trump imagine we've been doing since 9/11/2001? In the wake of the terrorist attack we imposed an exceedingly strict vetting process of refugees and asylum applicants.  See this White House graphic. As a result, Syrian refugees have had to wait 18 months to two years before being admitted. As a result accordingly to the Cato Institute, the chance of being killed by a terrorist attack committed by a refugee is about one in 3.6 billion. The terrorist threat from refugees is non-existent.

Trump's order suspends entry into the U.S. from seven countries for 90 days: Iran, Iraq, Lybia, Somalia, Sudan, Syria, and Yemen.

Trump's order suspends entry of all refugees into the United States for the next four months, and suspends the entry of refugees from Syria indefinitely.

Trump's order puts us, at the very least, in violation of the spirit of the UN convention and the 1967 protocol regarding refugees which provides that refugees must be accepted "without discrimination as to race, religion or country of origin."

Trump's order does not bar entry from Saudi Arabia, where 15 of the 19 hijackers who crashed commercial jetliners into the World Trade Center, the Pentagon, and a Pennsylvania cornfield, killing more than 3,000, hailed from. The United Arab Emirates where two of the 9/11 hijackers originated is not on the list. Egypt, where one of the ringleaders of 9/11 (Mohamed Atta) originated is not on the list. Lebanon, where one hijacker originated is not on the list.

An Irrational, Cruel, and Arbitrary Act

Here is Stephen Griffin at Tulane Law School writing at the group law professor blog, Balkanization:
"The White House just threw a cloak of legitimacy around arbitrary discrimination against Muslims and, in doing so, Trump employed an explicitly religious rationale.  This puts us in exceedingly dangerous territory. .... The action is also wholly arbitrary.  There is no rational basis for this policy.  This is like policy as fantasy football, policy as vanity plate.  There is no evidence of an increased danger to the US from Syrian refugees or any other refugees.  If terrorism is the problem, I suppose we might be more concerned by people traveling from France and Belgium than Yemen and Somalia.  But however we analyze the policy, the underlying reality is that it is not the result of any rational policy process.  There was no process.  This is pure prejudice." 
Follow me on Twitter @RolandNikles


Read Benjamin Wittes, Sr Fellow at Brookings at Lawfare. (He concludes: "You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point.") I.e. he sees the same motivating force as I argued in my recent ACA article.

Read David Bier at NYT, discussing the illegality of the order.

Sunday, January 22, 2017

“Suffer then Die, We Have a Political Point to Make!”

At Valero Gas Station, Booneville KY/David Stephenson, Miami Herald
What does it mean to be uninsured? I was recently uninsured due to bureaucratic ineptitude (don’t ask) and spent a day in the emergency room being treated for dehydration. I showed up at 9:00 a.m., had my blood pressure taken, conferred with a doctor, had attentive nurses keep an eye on me, was wheeled to an MRI examination to rule out anything serious, had a urine catheter, and was discharged by 3:30.  Two weeks later I received a bill for $9,000.00. To be uninsured means to pay this bill out of pocket, and if we can’t, to be hounded to penury by bill collectors.

My insurance issues will be sorted out, and I can afford the treatment I received. But for 30 million Americans who remain without insurance in this country (2015), a $9,000 visit to the emergency room, is something they cannot afford. They will be hounded to penury by bill collectors. Getting sick without healthcare leads to suffering and death.

Nearly 30 million uninsured is more than the population of Texas; nearly the population of California. It is nine percent of our population. With Trump and Republicans in Congress set to make angry and reactionary changes to our health care system ("out of sheer spite" says Kevin Drum), the number of uninsured will increase again. Depending on the exact nature of the assault on state supported health care to be taken by Congress and the Trump administration, the number of uninsured may soon be back up to 50 million, or 15 percent of the population; i.e. what it was before the Affordable Care Act (2010) became law.

Do Republicans and Trump care about the plight of these uninsured? Consider this characterization of the GOP/Trump model for healthcare by Duncan Black at Eschaton (h/t Brad DeLong):

[T]he conservative plan for health care is "if you can't pay for it, you suffer and then die." This could be modified slightly to setting up a system by which your income is garnished for the rest of your life to pay for your treatment (not so different than what we have now, except with more pressure to actually treat people), or with a system that forces you to buy shitty health care insurance that you can't afford and which won't cover treatment anyway (ACA does this to some, though with health care that isn't entirely shitty and which might actually cover you).

That's how it is, and anyone who pretends otherwise is stupid or lying.

Most of the uninsured, approximately 24 million, are citizens; approximately 6 million are non-citizens, mostly undocumented workers. See Kaiser Family Foundation “Key Facts about the uninsured” (Sept. ’16).

Eight in ten of these uninsured are from low to moderate-income families, meaning they earn less than 400% of the poverty level.  In 2015 the federal poverty level for a family of three was $19,078. Median household income in 2016 was $52,000 (meaning 50% of households in the country get less).

Families making less than the median income can’t afford the cost of health care on their own. The average cost of a family health insurance plan in 2016 was $833 per month ($10,000/year), with an average deductible of $8,000. If any member of a median income household has a visit to the emergency room like I had—a routine thing—they are out of pocket $18,000 for health care for the year. The real cost of health care in the United States today is beyond the means of nearly half the country.

So how do we manage?

Employer Sponsored Health Plans

Approximately half the population (49% in 2015) is covered by employer sponsored health care plans. It’s a World War II-era tax quirk, explained Ezra Klein back in 2009: The Roosevelt administration had instituted price controls to prevent profiteering; excess profits were taxed at (very) high rates. “At the same time wages were frozen so employers couldn't offer raises. But the government decided to exempt health benefits from these rules. So corporations took their wartime profits and plowed them into health care benefits. In 1953, with the war over, the IRS tried to overturn the rule. Congress overruled the IRS.” And ever since, employer sponsored health plans have formed the backbone of our health care policy. The ACA built on this structure by mandating that employers with more than 50 employees must provide health care coverage for their workers and dependents.

Trump and the GOP want to do away with the employer mandate.

Medicaid Coverage

Today one in five (20%) of the population are covered by Medicaid, a joint federal/state program for poor people.

Prior to 1965, we had no public health insurance program. Medicaid was introduced as part of President Johnson’s Great Society programs. Administration of the programs is up to the individual states (e.g. in California, the program is known as Medical).  Although Medicaid is the largest source of government funded health care for people under 65 years of age who are unable to afford health care, eligibility is not easy. Prior to the Affordable Care Act (2010), eligibility in most states was restricted for persons far below the federal poverty level (e.g. Alabama 18%, Florida 33%, Georgia 37%, Idaho 26%, Kansas 38%).   

With the ACA, Congress sought to reduce the number of uninsured by expanding eligibility under Medicaid to 138% of the poverty level. This was intended as a nationwide program, but under the Supreme Court’s holding in National Federation of Independent Businesses v. Sibelius 132 S.Ct. 1232 (2012), individual states were given the option to opt out of the ACA’s Medicaid expansion. Nineteen states have refused to provide this expanded coverage for their citizens who cannot afford health care insurance. These states have done so for ideological reasons (or spite, as Drum suggests); they have failed to adopt the Medicare expansion despite the fact that most costs would be borne by the federal government. Texas, for example, has refused to opt into the ACA Medicaid expansion and as a result 4.6 million Texans (17% of the population) is without health insurance.

Here is a Commonwealth Fund Report on the situation in Texas:

In Texas, Medicaid is available only to people with disabilities who have incomes below 75 percent of the federal poverty level (under $9,000 a year for an individual); pregnant women with incomes less than 200 percent of poverty (about $23,500 a year); and parents with incomes less than 19 percent of poverty (just under $5,000 a year for a family of four).

To the nearly five million Texans who can’t afford health coverage and who don’t fall into the above restricted categories, the state of Texas says “suffer, then die.”

Here is a Kaiser Family Foundation report, generalizing for the 19 states that have turned down the Medicaid expansion of the ACA: “Medicaid eligibility for adults in states that did not expand their programs is quite limited: the median income limit for parents in 2016 is just 44% of poverty, or an annual income of $8,870 a year for a family of three, and in nearly all states not expanding, childless adults remain ineligible.”

President Trump and the Republicans in Congress aim to do away with the expanded Medicaid coverage provided by ACA for all. They want to make everyone like Texas.  Eighteen million who now have coverage under the ACA stand to lose their health coverage. “Suffer, then die, we have a political point to make,” says the GOP. The GOP’s political ideology is an ugly and callous thing.

ACA Subsidies for Individual Health Care

The ACA also provides subsidies for those earning in excess of 138% of the poverty level up to 400% of the poverty level (i.e. up to $47,520 for an individual). As of March 2016 9.4 million (2.9% of the population) received payment subsidies on the individual health care plan exchanges established by the ACA.

Subsidies are based on a Silver Plan in the area where you live.  Silver plans are not cheap. For example, my wife and I pay $1,951/month for a Silver Plan in San Francisco. The maximum annual out of pocket deductible is $2,500 per individual. Our premiums ($23,412) and maximum out of pocket costs ($5,000) could add up to $28,412 per year. We don’t qualify for a subsidy, but if our income were up to 400% of the federal poverty level ($64,080 for household of two), most of the premium would be paid by the federal government under the ACA. The amount we would have to contribute would be a percentage of our income--2.04% to 9.69%--depending on income up to $64,080.  In other words, if we earned exactly $64,080 (400% of federal poverty level), we would pay 9.69% of our income ($6,209) of the $23,312 premium, and the federal government would pay the balance ($17,103) of the premium. Our maximum exposure for medical care would be our share of the premium ($6,209) plus the deductible ($5,000), i.e. $11,209.

With the ACA subsidy, a medical expense of $11,209 on an income of $64,080, is manageable even if you don’t have significant savings.  Not comfortable, but manageable. But the GOP wants to do away with the ACA premium assistance subsidies. Without a subsidy, my wife and I would be liable for the entire premium ($23,312) and deducible of $5,000, whether we earned $20,000, $30,000, $64,080, or more than that.  No matter our income, my wife and I can afford this because we have sufficient assets saved over 40 years of working. But consider this: the median net worth of Americans aged 55-64 is just $140,000; the net worth of the 30th percentile in that age group is $40,000.

Annual medical costs of $28,312 would wipe out all savings of most people in the 55-64 year old age group in a very short time. “Suffer, then die,” say Trump and the GOP.


Medicare, enacted in 1966, is a single payer national health insurance program administered by the federal government that covers everyone 65 years of age or older who has worked and paid into the system through payroll taxes, as well as some younger people with disabilities, or certain specified diseases. In 2015 it covered 14% of the population (45 million over 65 years of age, and nine million with disabilities or qualifying disease). Speaker Ryan is making noises to change Medicare as we know it, but I'm guessing this is a bridge too far even for this Congress. 

Other Insurance Programs

Approximately two percent of the population, primarily veterans and their dependents, are covered by special programs like that administered by the VA.


As of 2015, nine percent of the population was uninsured (nearly 30 million). If Trump and the GOP follow through with substantially dismantling the ACA, this will again rise to 15% of the population (~50 million).

“Suffer, then live in penury and die” vs. "provide comprehensive medical care to all without causing financial devastation as a matter of right." It’s what’s at stake for half the population, it's what's at stake for the soul of this country. 

Whose side are you on?

Follow me on Twitter @RolandNikles

Saturday, January 14, 2017

Tal Becker's Theory of Justice to Prolong the Status Quo in Israel/Palestine

Dr. Tal Becker/Hartman Institute photo
Wednesday evening, January 10, 2017, Dr. Tal Becker came to Temple Sherith Israel in San Francisco to speak of justice. This was the third in a series of talks conceived by the New Israel Fund in collaboration with the Shalom Hartman Institute of North America aimed at sparking inter-generational dialogue about Israel. About 120 of the usual suspects showed up: retired synagogue denizens, greying secularists with time on their hands, interested in all thing Israel, and a small handful of earnest young people in their 20’ and 30’s.

Becker has fought in the trenches of the struggle for justice between Jewish Israelis and Palestinians.  He is a fellow at the Shalom Hartman Institute in Jerusalem, but he also serves as principal deputy legal adviser to the Israeli Ministry of Foreign Affairs. He was a senior member of the Israeli peace negotiation team during the last round of talks led by Secretary of State John Kerry, and was a lead negotiator at the Annapolis peace talks. He has served as director of the international law department of the Israeli Foreign Ministry and he has served as counsel to Israel’s UN mission in New York. He has advised the Israeli Defense Forces on international law. His positions, by implication, have required him to be a vigorous defender of the status quo. “My resume is not as strong as it looks: all my efforts at fashioning peace with the Palestinians have been failures,” he said to inappropriately loud applause from one attendee.

Becker came to explain his theory of justice for the status quo. 

Three Competing Models of Justice

We all have different conceptions of what justice means, said Becker. From a Jewish perspective, there are three models, he said: 1) justice as entitlement; 2) justice as co-existence; and 3) justice as identifying with the victim. He presented three stories from Genesis to illustrate.

1. Abraham purchases a burial plot for Sarah (Genesis 23:1-20). When Sarah died in Kiriath-arba (Hebron) Abraham wanted to purchase the cave of Machpelah, together with the field in which it stood, and all the trees anywhere within the confines of that field. Abraham made an ostentatious showing of wanting to pay market rate for the field—to own it in the regular course. It is one of three records of purchase in the bible, the other being the Temple Mount, and Joseph’s burial ground.

The building that covers the "Cave of the Patriarchs"
at Machpelah, Hebron/Wayne Styles photo

This model of justice, says Becker, asks who has a rightful claim? Justice is to grant the just claim. Hebron, the Temple Mount, the West Bank, all of it belongs to the Jews because they have the rightful claim. Not only was the land given to them by God in his covenants with Abraham and Moses, there is a rightful deed of purchase for places like Hebron, the Temple Mount, and Joseph’s tomb. That, and the Jews won it fair and square in a defensive war in 1967. The land belongs to the Jews because they have the rightful claim.

This claim of entitlement is the justice championed by many of the settlers and their supporters. See, e.g. here, and here, and here. The land was promised to the Jews, purchased by them, and won in war, and justice demands that they have it. And, of course, Hamas has a mirror image of this justice claim which says all the land belongs to the Palestinians. See e.g. here.

Separation of Abraham and Lot
Wenceslas Hollar (1607-1677)
2. Abraham and Lot compete for resources (Genesis 13: 1-18). Abraham and Lot came up out of Egypt wealthy in silver, cattle, and gold. Their flocks and herds were so numerous that the land could not support both tribes and they came into conflict. So Abraham sensibly said to Lot: “Let there be no strife between you and me, between my herdsmen and yours, for we are kinsmen.” And they agreed to separate, Lot moving into the valley of the Jordan and Abraham moving to Hebron. It’s a model of justice as co-existence, says Becker. This model of justice does not care what the technical entitlement claims are when it comes to dividing the land; what matters is how to make a space for all; what’s required is for Jews and Palestinians to live in peace even if that means giving up or compromising rightful claims.

3. Abraham pleading with God to spare Sodom and Gomorrah for the sake of the innocent (Genesis 18:17-33).  God is set to destroy Sodom and Gomorrah in order to clear the land for Abraham. And because they are wicked. But sin seems like a pretext. Still, it’s a pretext that both God and Abraham latch onto. “Will you sweep away the innocent with the guilty,” pleads Abraham. And God relents: he won’t do it if there are 50 innocents. Abraham begins to bargain down the Lord: “What if fifty innocent should lack five,” he says, finally getting God to agree he won't do it if there is a minion of ten innocents.

It’s a model of justice as championing the victim, says Becker. “Don’t look at entitlement, don’t let peace (getting along) be determinative, focus on the victim and come to his aid. That’s justice!”  And, of course, there is an additional implication in the story: it seems to say, focus on the “innocent victim.” The flip side of this is there weren’t 10 innocents in Sodom and Gomorrah so they deserved to be destroyed. It sets the stage for lots of inventive arguments about victimhood and guilt and innocence and just deserts. As Becker quipped about an altercation between his two young children: “It all started when she hit me back!”

The Point of Striving 

In Genesis Rabba 8:5 the angels are having an argument with God about whether he should create mankind, or not. “Do it,” said one, because man will dispense acts of loving kindness; “don’t do it,” said another, because man will be full of lies. [It will all lead to Donald Trump!] One said “do it” because man will perform acts of justice; and another said “don’t do it” because man will be full of strife.

After much reflection God created man, and he did so for selfish reasons, says Becker. God who is whole and perfect and has perfect Truth, and perfect Justice, and perfect Wisdom, nevertheless lacked something: he lacked imperfection. He lacked the ability to strive for Truth and Justice and Beauty and Peace and Wisdom. Having perfect Truth and Justice and Beauty and Peace, and Wisdom, God lacked the desire for these things. We take for granted what we have, we don’t desire it, we don’t strive for it.

And there is something valuable and beautiful in desire and striving towards Truth and Justice and Beauty and Peace and Wisdom. By striving for these things in our imperfect ways, and because we can never realize these goals fully, we complete God, said Becker. Or at least that is what Rabbis Simon, Hanina, Hilkiah, Huna, and Phinehas were getting at in Genesis Rabba. It’s a beautiful vision. 

Driving the Point Home 

And Justice is like that, all striving and not achieving, said Becker.

“Pursuit of justice is by definition a flawed exercise; it is the pursuit of something that can never be achieved. We do most harm when we think we are those who can bring a complete justice. What we need to do when we think about justice in Jewish terms, is to recognize that there are these competing voices of justice: justice as entitlement, as getting along, as being the champion of the victim, and each of them needs to be carried at the same time. And each of them needs to suffer the other.  And we should never delude ourselves with their achievement; we just need to pursue them. All of the competing claims of justice need to have a claim on you and temper your arguments.”

“Justice is not an outcome, it’s an orientation,” said Becker. We must remember that often, when we insist on our own conception of justice to the exclusion of others, we create an injustice. And that much is surely correct.

But to suffer the maximalist settler claims alongside the maximalist Palestinian claims does not seem helpful. Becker’s three models of justice are an explanatory tool for understanding the dynamics and psychology of conflict, but what’s missing is a theory of what makes a just state, or states.

The “entitlement” model leads to competing maximalist claims; the “champion the victim” model leads to endless arguments about who is victim, who is perpetrator (who is virtuous and who is sinful). The Abraham/Lot co-existence model of justice can easily turn into a Rodney King “Why can’t we all just get along” caricature. What’s missing from Becker’s talk last Wednesday are actual values that transcend group identity.

Entitlement is a claim, not an ideal. Victimhood is claimed status, not an ideal. And compromise to get along without reference to independent ideals, some shared values, seems empty and unstable.

As Jon Stewart observed to Charlie Rose shortly after our recent election: America has struggled over its identity since its founding. Are we a country of ideals (equality for all, due process of law for all, liberty and justice for all) or are we some kind of white ethnic state. This identity struggle was visible at the heart of our recent election. But we do have stakes in the ground—ideals to strive for. They are embedded in our constitution. They are firm.

There are stakes in the ground in the Israel/Palestine conflict beyond Becker’s three models too. Here are two visions with different champions: 1) a multi-ethnic, multi-religion state that extends an equal voice, vote, opportunity, and protection of the laws to everyone between the river and the sea; or 2) some type of confederation between a multi-ethnic Hebrew Republic and a multi-ethnic Palestinian Authority with open borders as envisioned by Dov Waxman and Dahlia Scheindlin. These models are not subject to Becker's temperance rule. If we have an actual vision of justice, we can go all in. 

In listening to Becker, I did not hear a theory of justice we can go all in for. I heard fluidity designed to excuse the status quo, and to enable prolongation of the status quo in Israel/Palestine. Becker does, after all, work for Benjamin Netanyahu. 

Follow me on Twitter @RolandNikles

Wednesday, January 11, 2017

The Nepotism of Donald Trump: In and Out of Government

Jerod Kushner/source unknown
This past week President Trump has appointed his son-in-law, Jared Kushner, as a senior White House adviser. There is also talk that Trump wants to involve his daughter Ivanka and one or more of his sons in the administration. Is that bad? Is it allowed?

The Life Blood of Closely Held Businesses 

Nepotism, of course, is the life blood of family businesses. My wife's family were all doctors at Kaiser in Northern California.  Not nepotism exactly, but surely more than coincidence.  They are  excellent people and have contributed greatly to their organization. My sister and broter-in-law work in a family business (his side of the family). They are energetic and competent entrepreneurs. They earn their keep. My cousins in Switzerland own a family business, a hotel in the mountains. They are in the fifth generation. They are industrious and responsible people.

Nothing wrong with this kind of nepotism that I can see. If you own the business you can run it for the benefit of your family as you will.

Many of my construction company and developer clients work in closely held family businesses. One of these is a multi-billion dollar venture. Sons and daughters don't get to run these businesses unless they are qualified. Parents often have higher expectations of their off-spring than they might have of regular employees. And, in the final analysis, offspring and in-laws usually need to prove their mettle in order to succeed. They must earn their stripes.

Not to say that nepotism in closely held businesses doesn't have its down-side.

It is joyless to be stuck with a spoiled, under-performing, over-entitled scion in any venture. Parents might keep or promote underperforming kids just because they are family. Family members may get paid more than others similarly situated, fostering resentments. Family ties might keep competent people from rising in an organization, harming the organization. Nepotism undermines organizations when family members are promoted over others with more merit. Still, if you own it and you want to run it into the ground by enabling your lazy, incompetent family members to rest on your laurels... knock yourself out.

With publicly held corporations, not Trump's situation, we frown on nepotism. Publicly traded corporations are owned by the shareholders, and for this reason most publicly held corporations have rules prohibiting nepotism by corporate management. Management needs to hire the best talent at the best price for the benefit of shareholders: when they hire family there is, at minimum, the suspicion that this may not be the case.

The Model of Selfless Government Service

And with public office, as Trump will hopefully learn, things are very different. Public officials don't own government: they are trustees for the public good. There is no board of directors to look out for the voters, as there might be for shareholders in a publicly traded corporation. All we have is the law and the courts.

The word "nepotism" derives from the latin for "nephew." It alludes to the practice of medieval popes who appointed nephews as cardinals in order to cement family dynasties over the papacy. The Borgias dominated politics and the church in Italy in the 15th and 16th centuries. It's an example of nepotism gone bad.

Nepotism in public office naturally leads to corruption. Think of Saddam Hussein and his sons in Iraq; Qaddafi and his sons in Lybia; the Assad clan in Syria. Ulysses S. Grant (president 1869-1877) appointed his cousin Silas A. Hudson as minister to Guatemala, his brother-in-law Reverend M.J. Cramer as consul at Leipzig, another brother-in-law, James F. Casey, as Collector of Customs in New Orleans, Louisiana, a third brother-in-law, Frederick Dent, as White House usher. Casey enriched himself by stealing customs fees and Dent enriched himself by selling insider information.  According to Wikipedia, 40 Grant relatives prospered financially by leveraging his position as President.

A consular position in Guatemala (in 1870) seems harmless enough. Yet we don't want our elected officials handing out public perks to family and friends. Even if the service provided is competent and earnest, allowing family and friends to enrich themselves from their relationship to elected officials is not healthy for democracy: it undermines competence and merit, it results in government not getting good value, it consolidates and creates family power and dynasties that can be abused.

It undermines trust in government.

We award public works projects through a competitive and open process not only because it provides the best value, but because we feel all businesses similarly situated should have the same opportunity to compete for government business. Government business belongs to the people, it does not belong to elected public officials to hand out as favors to friends and family.

Our ideal is selfless government service for the public good. It's Jefferson's vision of Roman republican virtue: the most competent landholding citizen leader assuming command of the army in time of war for the public good, only to humbly retreat to private life as soon as the need subsides.

In our era of career politicians, where politicians parlay political careers into fortunes through subsequent lobbying or speech-giving, our motives and incentives for public service are not always so pure. Prohibiting elected representatives from handing out jobs, perks, and business to family and friends is one way to keep self-dealing in check. It's a nod to our idealism.

Nepotism undermines government structures because family members, no matter their experience or station, may be perceived as having the ear of the family member who hired them, and having disproportionate influence stemming from family ties instead of merit. It causes resentment. It undermines morale. It undermines clear lines of authority.

For all these reasons, most states have laws prohibiting nepotism. Federal agencies have rules against nepotism. And in December 1967 Congress passed a law to prevent it.

When president John F. Kennedy appointed his brother (Robert Kennedy) as attorney general and his brother in law (Sargent Shriver) to head the Peace Corps, there was an uproar.  The New York Times was very critical of Robert Kennedy's appointment as attorney general: “It is simply not good enough to name a bright young political manager, no matter how bright or how young or how personally loyal, to a major post in government.”  The Nation called it "the greatest example of nepotism this land has ever seen."

Seven years later Congress passed a law prohibiting any officer (including the president) from appointing a family member in any agency in which he or she is serving. The law can be found at 5 U.S.C 3110. But Rep. Neal Smith (D-Iowa), who sponsored the bill, denied he was motivated by the Kennedy appointment and said he was concerned about a culture in the U.S. Postal Service of placing wives on the payrolls in small rural offices around the country.

Does the Anti-Nepotism Law prohibit Trump from Appointing his Family Members?

Kathleen Clark, a government ethics expert at Washington University believes these family appointments would pretty clearly violate the anti-nepotism law. See Washington Post 1/10/17.

Here is the relevant part of the law (5 U.S.C. 3110):
(a) For the purpose of this section—(1)“agency” means—(A) an Executive agency;....(2) “public official” means an officer (including the President...)... in whom is vested the authority ... to appoint, employ, promote, or advance individuals... in an agency; and (3) “relative” means, ... an individual who is related to the public official as ... son, daughter, ... son-in-law..... 
(b) A public official may not appoint ... any individual who is a relative of the public official....to a civilian position in the agency in which he is serving. 
(c) An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury.
The president is explicitly mentioned as one of the "public officials" bound by the law. By its plain meaning, this statute would seem to prohibit Trump from appointing his son-in-law, his daughter, or his sons from working in the White House, or in any other executive branch agency.

But when it comes to the law, bad facts make bad law, and things are not always so clear....

Association of American Physicians and Surgeons v. Hillary Clinton 

As we know, after John Kennedy, Bobby Kennedy, and Sergeant Shriver (which predated the statute), and before Trump and his kids, there was Bill and Hillary. In January 1993 (i.e. after the anti-nepotism statute was in effect) Bill Clinton, as president, established a task force on national health care and he put Hillary in charge of this task force. The task force was directed to draft health reform legislation and to submit this legislation to Congress within 100 days of the administration taking office.

Just like Jared Kushner's appointment now, this drew legal scrutiny then.

The issue presented by the case was whether the Clinton task force meetings were subject to the notice and open meeting requirements of the Federal Advisory Committee Act. The FACA was aimed at reigning in the proliferation of numerous advisory committees staffed by industry lobbyists and other individuals not employed full time by the government. Any committee staffed by such persons, Congress said, has to provide notice of its meetings and conduct its meetings in public. 

The Clinton task force held one public meeting on March 29, 1993, and subsequently met 20 times behind closed doors in April and May 1993. The task force completed its review, made its recommendations to the President, and ceased operations by May 30, 1993.

In the meantime, however, opponents of the Clinton initiative sued to be admitted to Hillary's closed-door meetings. The court concluded that the task force meetings were not subject to the notice and open meeting requirements because all of its members, including Hillary Clinton in her capacity as First Lady, qualified as a full time employee of the federal government under the FACA exception to the notice and open meeting requirement.

The plaintiffs in Association of American Physicians and Surgeons v. Clinton also argued: hey, if Hillary is a full-time officer or employee of the federal government appointed by her husband to oversee this task force, and hence exempt from FACA, isn't this then a violation of the nepotism prohibition of 5 U.S.C. 3110?

The anti-nepotism law, although it specifically mentions the President, does not include an exception for the President's spouse. The court, therefore, had to resolve whether Congress in passing the anti-nepotism law intended the statute to apply to the President's spouse. And the court concluded, no, the president's spouse is exempt from the prohibition.

In carving out an exception for the president's spouse from the nepotism law, the court pointed to the traditional supporting role of First Ladies--they have always been active in the administrations of their husbands. And the court pointed to the fact that Congress has specifically authorized the President to pay his spouse for such services as might be helpful to the president in carrying out the president's duties. 3 U.S.C. Sec. 105(e).

The presidential spouse exception for the anti-nepotism law seems uncontroversial and a proper interpretation of 5 U.S.C. 3110.

In creating this exception for the president's spouse, however, the court also questioned whether the nepotism law applied to the President at all

Here is what the court said: 
The President's implicit authority to enlist his spouse in aid of the discharge of his federal duties also undermines appellees' claim that treating the President's spouse as an officer or employee would violate the anti-nepotism provisions of 5 U.S.C. § 3110. That section prohibits any "public official" from appointing or employing a relative, such as a spouse, "in the agency in which he is serving or over which he exercises jurisdiction or control." Id. § 3110(b). Although section 3110(a)(1)(A) defines agency as "an executive agency," we doubt that Congress intended to include the White House or the Executive Office of the President. Cf. Franklin v. Massachusetts, --- U.S. ----, ----, 112 S.Ct. 2767, 2775, 120 L.Ed.2d 636 (1992) (holding that President is not "agency" for purposes of Administrative Procedure Act); Meyer, 981 F.2d at 1298 (President's advisers are not "agency" under FOIA); Armstrong v. Bush, 924 F.2d 282, 289 (D.C.Cir.1991) (President not APA "agency"). So, for example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant. Be that as it may, it is not reasonable to interpret that provision to bring it into conflict with Congress' recognition of (and apparent authorization for) the President's delegation of duties to his spouse. The anti-nepotism statute, moreover, may well bar appointment only to paid positions in government. See 5 U.S.C. § 3110(c). Thus, even if it would prevent the President from putting his spouse on the federal payroll, it does not preclude his spouse from aiding the President in the performance of his duties.
Association of American Physicians and Surgeons v. Clinton, 997 F.2d 898. 

This is dicta, says Kathleen Clark. That part of the Association of American Physicians and Surgeons case goes beyond what was needed to decide that case and thus it should have no binding effect on later courts. We look at the plain meaning of the statute, Clark says correctly. When we look at the plain wording of this statute, we must conclude: of course it applies to the president; the president is explicitly mentioned ("'Public Official' means an officer (including the President....)!" And the Executive Office of the President, including his immediate staff, the White House Staff, and the Office of Management and Budget, are usually thought of as making up an "Executive Agency."  For example,  5 U.S.C. Section 551(a) defines "agency" as any "authority of the government of the United States." 

That and $3.50 will buy you a latte at Starbucks, as they say. 

Given the above language in Association of American Physicians and Surgeons v. Clinton, it is an open question whether a court would rule Kushner's appointment illegal. People can disagree over what the correct ruling should be, or what the more likely ruling may be, but no one will know unless the issue is framed and brought before a court. How this would happen or who might bring such a case is unclear. 

In order to bring a case to challenge the Kushner appointment any plaintiff will need to demonstrate standing; i.e., a plaintiff will need to demonstrate a connection to the action and some particular harm to him or or her that the court might address. This would seem to rule out general citizenship or taxpayer standing. Who can demonstrate a real harm or impact from the appointment of Kushner as an advisor? The Democratic party? A citizen voter? A member of Congress? Legal standing is not intuitively obvious in such a case.


The Kushner appointment presents a real concern of nepotism. This concern will be greatly heightened if Trump's children also take a direct role in the administration. But there is no clear answer to whether Trump's action is illegal. The breathless way in which some media are framing the issue, that this appointment is a litmus test for whether Donald Trump "will follow the law," is wrong. See, e.g. The Forward. The legality of it is very much an open question. And whether this issue can ever be properly framed and brought to court presents complex and interesting legal issues. 

In the meantime, Kushner is a presentable young man. He instills a lot more confidence of competence and level-headedness than Donald J. Trump does. We would have been better off with Hillary, but my guess is we're better off with Kushner in the White House than not.