Wednesday, November 09, 2016

Don't Fear A Trump Presidency: Act!

by Michael Dorf

I yield to no one in my disappointment that Donald Trump has won the 2016 presidential election and will take office with Republicans holding majorities of both houses of Congress. Yet perhaps because I am by nature an optimist and a doer rather than a sulker, I find myself in a better state of mind today than I was in over the course of the last several months, when I merely feared the prospect of President Trump. You will find plenty of liberals understandably voicing despair (e.g., Paul Krugman). Here I want to offer a few cautiously hopeful thoughts on not just surviving the next four or eight years, but on using them productively.

First, let me suggest that Trump might not be as bad as many of us fear. Consider the "greatest hits" of Trump's defects.

** Although Trump never formally renounced his outrageous plan to ban all Muslims from coming into the country, he won't attempt it. Instead, in office he will likely take token measures to tighten existing immigration controls, which he will then brand as the "extreme vetting" into which the Muslim ban morphed during the campaign.

** Trump might well attempt to build some sort of wall at the southern border. This could run into delays due to environmental lawsuits (more about that momentarily) but will probably be modified sufficiently to abate the most severe environmental damage. The wall will be ineffective as enhanced border security but might do some good as a public works project.

** Given the impracticality, Trump probably will not make a serious attempt to round up millions of undocumented immigrants, instead treating his "deportation task force" as the phase B of his immigration policy. With any luck, his presidency will be over before he completes phase A (increased border security). Along this dimension, the real downside of a Trump presidency is that there will be nothing like immigration reform to offer a path to citizenship, but that wasn't going to happen anyway, even if Clinton had won and the Democrats had won the Senate but not the House.

** Trump will have fewer opportunities to grope women as president than as a private citizen, mostly because he will be in public view more of the time. His contempt for women will probably not translate into law and policy.

** In each of the foregoing examples, the actual policies Trump will pursue probably pose less of a danger than the misogyny, xenophobia, and racism that he has stirred up among the public. I do not want to minimize that ugliness in the slightest, but he has not fashioned an alt-right majority. The people who voted against Trump and those who voted for Trump despite, not because, of the bigoted nature of his campaign are a clear majority of the country. We can and should make common cause to ensure that Trump's ugly rhetoric does not undermine our fundamental values of tolerance and equality in our daily lives, which are lived and governed locally.

Second, some of what Trump will do might actually be useful.

** For all of the ways in which Trump's admiration for dictators is deeply troubling, he made sense when he said repeatedly during the campaign that it is in the national interest to have a better relationship with Russia. The risk here is not so much that Trump will be Putin's puppet (as Clinton suggested in the third debate) but that his statements will lead to miscalculations, much in the way that the first Bush Administration seemingly signaled to Saddam Hussein that the invasion of Kuwait would not be objectionable. It is possible to imagine Trump inadvertently suggesting, say, that the U.S. would not defend the Baltic states against invasion absent an increased payment, leading Putin to act rashly, leading in turn to a shooting war when Trump is persuaded by the generals that the U.S. must in fact come to the aid of a NATO member under attack. This sort of scenario troubles me more than the risk that Trump would go to war over a perceived personal insult. And it is troubling, but I hope and expect that experienced professionals in the military and in the State Department would head off or correct this sort of misstep before it got too far out of hand.

** Trump's promise to renegotiate existing international agreements has its obvious downsides. For example, nothing good can come from releasing Iran from its obligations under the nuclear deal. But in tapping into anti-globalization sentiment about NAFTA and other trade deals with developing nations, Trump offers a possible improvement over one of the worst features of neoliberalism: the tendency to undercut labor laws (such as the minimum wage and worker safety protections) in developed countries.

Third, much of what Trump will do will be truly awful, but not in a way that substantially differs from what a more conventional Republican would have done if one had won in 2016 and Republicans had retained control of Congress. These aren't remotely reasons to be cheerful, but they are reasons to think that the existential dread we feel about Trump shouldn't properly attach to what we would have faced under a Jeb Bush, Marco Rubio, or John Kasich presidency.

** Trump will name a very conservative justice to the Supreme Court, thereby vindicating the stonewalling policy of Senate Republicans, who will change the cloture rule to overcome a Democratic filibuster. That will pretty quickly return the Court to the status quo ante Justice Scalia's death. A new very solidly conservative majority will emerge if any of the oldest justices--Ginsburg (83), Kennedy (80), or Breyer (78)--leaves the Court while Trump is in office and the Republicans hold the Senate.

** Trump will sign a law repealing the Affordable Care Act. This will almost certainly deprive millions of people of their health insurance. The "replacement" might end up reinstating some elements of the ACA, but political pressure from the right will prevent it from covering a great many souls.

** Congress will pass and Trump will sign legislation lowering taxes mostly for the wealthy and cutting services mostly for the poor. The one silver lining is that, with the same party in control of Congress and the presidency, there will be no debt-ceiling brinksmanship. But economic inequality will increase.

** Trump will weaken enforcement of existing laws and Congress will weaken or repeal some of those laws as well. For example, Trump will probably sign legislation undoing or at least weakening decades-old laws protecting the environment and even without such legislation will withdraw from the Paris agreement on climate change. At the very least, the U.S. environment will degrade. It is possible that withdrawal from the agreement will lead it to unravel among the other countries. This is indeed a threat to all life on Earth, but again, it is a threat that is standard Republican, not distinctly Trumpian.

What is to be done? My answer differs for Republicans and Democrats.

** To my Republican friends who bravely stood against Trump during the campaign--including my friends at the Volokh Conspiracy and throughout the legal academy--I offer deep thanks for putting patriotic principles first, but now I'm going to ask you to make a sacrifice. If you are a principled conservative who opposed Trump's candidacy for any of the many excellent reasons there were to oppose it, PLEASE consider seeking and accepting a job in the Trump administration. We have a unitary executive in principle, but in practice it takes a great many people to run the government. If principled conservatives decline to serve in a Trump administration, it will be filled with servile hacks. Working in the government, you can better advance the rule of law and other values you hold dear than by standing outside and criticizing. In any event, we liberals will be doing plenty of that.

** We Democrats should do what we can to hold Trump accountable to law, to the Constitution, and to truth by criticizing him and Congress. Trump can bully, but whatever my differences with them on other issues, all of the Republicans who sit on the Supreme Court and the lower federal courts share a basic commitment to the First Amendment. Dissent remains our right. More than ever, it is now also our duty.

** Can we regroup politically? In seeking an answer to the question why white working-class and rural voters turned so overwhelmingly towards Trump, it will be tempting to engage in recriminations. Might we have done better by nominating Bernie Sanders? Why did the party establishment go in so overwhelmingly for Clinton so early, thus eliminating someone like Elizabeth Warren from contention? Let's take some time for our own "autopsy" report of this past election, but let's not lose sight of the big picture. Barack Obama did better with white working class and rural voters than Hillary Clinton did, but Democratic presidential candidates have been losing the white vote for decades. Any path back to majority-party status must find a way to emphasize the common interests of the relatively powerless across racial lines. That is no small task, especially because the right--when led by Trump but also before Trump--works hard to sell concern for minorities as disregard for disadvantaged whites. No doubt, this is a serious challenge, but it is the challenge we face, and so we must face it squarely.


Anonymous said...

I admire your optimism, but this sounds remarkably and disturbingly similar to what people said about Hitler in 1932.

I have a more dismal view of what might happen: the competent generals will resign in disgust, Trump will pack the bureaucracy with loyalists, and then we'll have not a single ounce of meaningful opposition if (hopefully not when) he decides to take military action in a fit of anger.

Trump's election is something I consider to be on the level of an existential risk to humanity. Keep in mind he will have the nuclear football.

Unknown said...

Excellent. My attitude exactly, and a very helpful organization of ideas.

Greg said...


I sincerely hope that you are right, but I am not convinced.

Shag from Brookline said...

I don't like to make predictions. To me, hindsight often is not 20-20. Trump does not want to be a loser. He won the election. Now he has to govern. But if he fails to govern well for all Americans, he will be a historical loser not just in an election but in the course of his term, four years that can be long with many problems. Consider Trump's views on George W's presidency. Trump thinks for himself. He may give a lot of thought over the next two months to those whom he will rely upon. While mention has been made of potential roles of Newt, Rudy, Christie, Allen, Trump might rethink how they would fit in with his desire not to fail, e.g., being a loser as President. Trump has told his followers over and over again that his run for the presidency was for the people, that he did not care about his wealth. Trump knows that the media will be watching how his businesses are run once he's sworn in, to examine how sincere he has been with his followers (assuming that they care). The media and the public will be watching a lot more to check what he said he would do as President and what he actually does as President. Trump has to do a lot of heavy thinking about how to accomplish his promised first 100 days.

I'm an optimist, now into my 87th year with limited life expectancy (115 years is now tops in any event based upon a recent study) especially being not only longer in the tooth but shorter in the step (think Tim Conway). I think back to the 1968 election with Nixon edging out Humphrey. My close friend, classmate and fellow attorney, who was more progressive than me, was dejected. I tried to console him, saying that Nixon would not ruin the country. And he didn't, although he came close. Nixon was challenged in a bipartisan manner, forcing his resignation in his second term. We survived as a nation. Trump should be aware of what happened to Nixon, who became a loser historically and otherwise.

Based on actuarial tables and general health conditions, I may not be around to vote in another presidential election. If I were and Trump governed well for all Americans, I might consider voting for his reelection. Yes, I'm an optimist. But I cannot forget how he campaigned. Let's hope for some redemption.

Unknown said...

Thanks, Mike -- agree with many of your points, but particularly the one regarding gov't service by serious and competent Rs.

Joe said...


I strongly didn't think Trump would win but enough people, so that isn't my state of mind. And, a Republican President -- which I thought quite possible before the cycle began honestly -- didn't win. TRUMP did. That means something. The bully won. The next bully, incompetent, horrible person is enabled. It is that much worse because I didn't think he would win. A Republican Senate? Bad, but I felt that was possible. This is so much worse.

We have to continue, obviously, so the fight song is appreciated, but I'm ashamed of my country today & wish those who are among those that will be hurt solidarity.

And, I fear that a low test will be set, things will be normalized. That mindset in a fashion led to today. Trump was seen as a credible choice. And, I appreciate the principle shown by Volokh Conspiracy, but with respect, they enabled it too with some of their beliefs and actions. I was there when ACA was seen as this grand threat to the Constitution. Orin Kerr snarked some but slyly implied he was okay was some sort of challenge, vague on just what sort of rule he would put in place.

But, yes, we need some Orin Kerrs, some Eugene Volokhs in the Administration. Better than Pence, who aided and abetted hated of gays. Then, EV years back was okay with a "mild" anti-same sex marriage amendment to the Constitution. We are left with that. Triage.

egarber said...

But what about the SCOTUS? Do you not feel that Roe is teetering? How about marriage equality?

Shag from Brookline said...

This thought of Ben Franklin back when comes to mind:


Michael C. Dorf said...

Thanks for the comments. As always, I follow with interest. Today I think I'll just let others have their say.

Joe said...

This came to mind. It's Trump and Republicans, so yeah, but I'll just say it.

Trump should support the confirmation of Garland. He doesn't care about ideology and will have the power to fill a lot of slots in the lower courts & do various other things. Garland is a moderate, in his sixties, someone Chief Justice Roberts respects. The thing to ask is why in the hell would he do it?

It would be an immediate act of legitimacy, including showing he is his own man. Some sort of negotiations (though this might not be necessary) could be done where at least a few Democrats accept to play ball with Trump on something in return.

This is the sort of thing we have to think of. Reasons why Trump would act in the promotion of the country. The system sets up certain checks to restrain and self-interest plays a big part. It is in his interest to make some sort of act like this. Or some other one.

Anyway, I'll end with this. I think it important to continue to accept that certain principles are correct and continue to be even if in practice they cannot be fulfilled. Mike Pence, e.g., already said the GLBTQ will be harmed once 1/20 comes along. That is wrong. And, if Trump picks someone else to be Supreme Court justice, it is on a certain level (even nothing exactly "unconstitutional" has taken place) illegitimate. Obama was re-elected & chose a compromise pick who should have been confirmed. Move on, fight, but don't forget.

egarber said...

I also suspect that we might be having a debate about the electoral college going forward as well - if Hillary wins the popular vote. I look forward to insightful posts on that one. :)

Shag from Brookline said...

I've got a title:


for progressive follow-ups to measure President Trump's efforts to fulfill his campaign promises. Perhaps Neil might be interested.

egarber should check out Gerard M's post at Balkinization on popular vote/electoral college. But so far there's not much of a debate.

Unknown said...

Trump actually has an opportunity to be a great president. A president who is not behoden to any particular party. A president who is willing to fight for the American people regardless of which party supports his nonpartisan goal.

Rebuilding America's crumbling infrastructure would be a great start. Stop spending money on wars that can never be won. Spend those trillions on something all Americans can (or at least should) agree on: Rebuilding our roads, our bridges, our airports, our hydroelectric transmission system, our schools, our libraries, and our railways. Create good-paying jobs for those millions of Americans most in need.

If Trump needs to cobble together a coalition of Republicans and Democrats to acomplish this much needed nationwide project he should do so on behalf of his client -- the American people -- regardless of partisan political ramifications.

Shag from Brookline said...

Income/asset inequality, an issue that seems to have assisted Trump in the Rust Belt, commenced seriously with the Reagan Administration. A reading of income/asset inequality on January 20, 2017, might be a base for measuring the caliber of 45. Will his tax cuts promises be enacted? Would such narrow or widen the gap, especially the elimination of the estate tax? Much of the Republican controlled Congress are establishment, establishment that had supported since Reagan the increasing income/asset inequality gap. A sort of income/asset inequality clock could inform the Rust Belt Trump voters of how meaningful their votes for Trump were. Maybe Trump will surprise us all and make sure that any rising tide raises all boats and not just yachts.

egarber said...

Quick question:

To overturn Roe, how would standing work? Would it have to stem from somebody challenging a restriction? Or are there direct ways for somebody who opposes abortion rights to assert some sort of standing? Would anti-choice states have some sort of standing as an entity?

I know I'm off the path somewhat. But the Supreme Court is what keeps popping up in my head.

egarber said...

Actually, I think I know the answer. A state would pass a ban. Somebody would challenge it. And then the court would use it as an opportunity to revisit Roe.

Fred Raymond said...

I'm at a loss to understand how so many millions of women voted for him. That's what just leaves me dumbfounded.

Shag from Brookline said...

Fred, perhaps some of those millions of women felt they were by The Donald's standards attractive enough to be considered for groping by a billionaire.

Joe said...
This comment has been removed by the author.
Joe said...

egarber said... yes.

I question if Roberts really wants that though. But, like his vote in the Texas case last term, he would be open to a lot of restrictions. The likely path there is they take a case involving a really bad regulation. Uphold it and send a message a rather low bar is the test. Don't totally ban it, etc., you are safe.

That's bad. But, it's better than merely having them being available for rape or something, which wasn't even allowed in Texas before the Roe case.