How the Left Can Survive Under Trump

by Benjamin Studebaker

Over the last few days, many people have been panicking about what Donald Trump might do as president. There is a lot of fear. Because most commentators and academics are deeply hostile to Trump, many people writing about this are still deeply emotionally shaken by the result. This has tended to color the analysis and produce polemics. So today I want to take a step back and try to calmly, rationally assess what kind of threat Trump poses and what opportunities he creates. In this post we’ll focus on the threats, and in the next one we’ll talk about the opportunities

On the internet, many Trump supporters like to refer to him as “God Emperor”. They depict him as a heroic imperial figure:

Trump is a right nationalist, and during the campaign he said many things that seemed to evoke troubling periods in recent human history. This created a running narrative among Trump critics in which Trump is depicted as a Hitler figure. This peaked after he announced support for a ban on Muslims entering the country and asked an audience to raise their hands in a pledge of loyalty to him, creating a visual that reminded people of the Roman salute:

There can be no doubt that Donald Trump’s anti-immigration politics tapped into some dark stuff–the notion that there are people living in your country who may be internal enemies has deep roots in fascist political thought. The strategy of blaming immigrants, minorities, or foreign states for economic malaise is textbook hard right. Some people point out that we have no idea whether Trump really intends to do the things he said he would do. But making that kind of assumption is risky. It’s safer to assume that Trump wants to do these things and then ask whether it’s possible for him to do them.

If you’re worried that Trump is a Hitler figure, the most important thing to remember is that Hitler was able to expand his power because of a glaring loophole in the German constitution called “Article 48“. Here’s what Article 48 said:

If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153.

In 1933, an arsonist set the German parliament building (or “Reichstag”) on fire:

Hitler was chancellor at the time and he persuaded the German president that the Reichstag fire was the first stage in a communist revolution. Out of fear of communism, the president invoked Article 48, and Germany ceased to be a functioning liberal democracy. The German Communist Party denied involvement, alleging that the whole thing was a false flag operation intended to expand Hitler’s power. Historians aren’t sure whether the alleged arsonist (who was executed)  acted alone, as part of a broader communist conspiracy, or as a Nazi agent. But for our purposes what’s important is that it was because of Article 48 that Hitler was able to suspend German constitutional rights so easily. There is no comparable article in the US constitution. Amending the US constitution is extraordinarily difficult–it requires a two thirds majority vote in both houses of congress. The Republicans have 52 senators, not 66. A president who wished to completely disregard the constitution over the objection of the courts would need the military to be more loyal to him personally than to the constitution. Trump does not have that level of popularity in the armed forces.

We are not facing a Hitler-level threat. This means that Trump will be constrained by the constitutional limits on his power. We can divide the list of things Trump opponents are concerned he might try to do into three categories–those that would likely require congressional support, those that would likely require the support of the courts, and those that the executive can do alone.

Requires Congress:

  • Repealing and replacing Obamacare
  • Implementing a Romney-style tax plan
  • Building a wall
  • Repealing Dodd-Frank
  • Funding a deportation program
  • New restrictions on Muslim immigration or immigration from Muslim-majority countries
  • Appointments to cabinet level positions
  • Appointing an Attorney General who will attempt to prosecute Hillary Clinton
  • Appointing conservative judges
  • Any military operation lasting longer than 60 days
  • Anything which requires congressional funding
  • Eliminating any other regulations explicitly stipulated in existing legislation

While it’s often emphasized that the Democrats don’t control either house of congress, the Republicans do not have a filibuster-proof 60 vote majority in the senate. This means that senate Democrats can employ the Ted Cruz strategy of blocking anything they don’t like. Senate Republicans can technically eliminate the filibuster (the infamous “nuclear option“) with a simple majority, but this has never been done before due to fear about the precedent it would set. This means that most likely a disciplined Democratic minority can stop all of these things.

Requires the Supreme Court:

  • Banning or restricting American Muslims’ travel rights or right to enter the country
  • Allowing US states to pass new abortion restrictions
  • Allowing US states to pass laws discriminating against LGBTs or reversing gay marriage
  • Closing down mosques
  • Racial or religious profiling
  • Torturing US citizens
  • In general most of the social issue concerns people may have

Assuming that congress does not confirm Merrick Garland, Trump can withdraw Garland’s nomination and replace him with a conservative nominee. However, senate Republicans’ decision to block Garland has set an ugly precedent. Ted Cruz made this much worse when he said:

There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.

Cato Institute legal scholar Ilya Shapiro didn’t help with this quote either:

As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally. I’m not sure such a position is politically tenable — barring some extraordinary circumstance like overwhelming public opinion against the legitimacy of the sitting president — but it’s definitely constitutional.

This means that senate Democrats could just decide to filibuster any Trump nominee they find unacceptable in perpetuity, throwing these quotes back in the faces of Republicans who complain.

Even if senate Democrats do approve a conservative justice, this judge would replace Scalia, who was already one of the most conservative justices in the court’s history. So the court would not get significantly more conservative than it was in 2015 when it legalized gay marriage over Scalia’s objections unless one of the more liberal justices retires or dies. The oldest judge is Ruth Bader Ginsberg, at 83. I have spoken to some people who have seen her speak recently, and they say she looks spry. At her age, she has an expected life expectancy of 91 and may be more likely to make it to the end of Trump’s first term than is often thought. As she gets older she gains some expected life expectancy, and if she makes it to 2020 at age 87 she’ll have an expectancy of 93, long enough to potentially survive an entire two-term Trump presidency on the bench, health permitting.

Things Trump Can Do Unilaterally, in Theory:

  • Rip up trade agreements (NAFTA, TPP, etc.)
  • Rip up the Paris Climate Agreement
  • Rip up Obama’s executive orders
  • Relax regulations that do not have a strict basis in the text of existing laws
  • Interpret existing legislation in more conservative ways
  • Take fewer Syrian refugees
  • Rip up the Iran Nuclear Deal
  • Impose tariffs and import restrictions
  • Make Mexico pay for a wall (assuming congress has authorized it) by ripping up NAFTA and imposing tariffs
  • Torture foreign nationals outside US soil
  • Short duration military operations (less than 60 days)
  • Drone strike terrorists’ families (provided they’re not American citizens)
  • Deploy nuclear weapons

In some of these cases, congress can pass laws that would weaken Trump’s power. For instance, Trump’s power to unilaterally impose tariffs rests on a set of federal laws which in theory congress could vote to repeal or amend, using a two thirds majority to override a Trump veto. Congress could also repeal or amend the War Powers Resolution Act or the Authorization for Use of Military Force Against Terrorists, which would curb Trump’s power to engage in unilateral military action. This means that Trump only keeps these powers provided at least 33 senators and 145 members of the house continue to have confidence that he can be trusted with them. So if Trump were to create extraordinarily large tariffs by edict, congress could pass laws eliminating the president’s power to tariff and repeal them.

Some of these actions would contravene international law, but international law has no robust enforcement mechanisms. Nevertheless, given the president’s dependence on continued congressional support for many of these policies, it is doubtful he goes all the way on them. So, with that in mind…

The Things Trump is Most Likely to Get Away With:

  • Ripping up international agreements (Paris Climate, Iran Nuclear, TPP, NAFTA)
  • Ripping up Obama’s executive orders
  • Relaxing regulatory enforcement within the confines of existing law and interpreting existing legislation in more conservative ways
  • Torturing foreign nationals outside US soil
  • Taking fewer Syrian refugees

Given that he can do these things and no one can offer meaningful resistance either before hand or after the fact, if Trump doesn’t do them his supporters will have no one to blame but him. This means it could be highly politically damaging for Trump to fail to do these things. The third one, however, is vague and difficult to rally public support around, and the fourth and fifth don’t give him a photo op. That means we are almost guaranteed to see Trump rip up the executive orders and at least one of the agreements very early in his presidency to establish his bona fides with supporters, with large scale media coverage.

I don’t want to beat around the bush–these policies are crummy, and they’ll needlessly blight people’s lives. But in these unpleasant times we would do well to remember all the bad Trump policies that we can stop, and do everything we can to encourage congress and the courts to stop them. Our goal should be to ensure that Trump only manages to do a relatively small percentage of the harm he has promised to do, and that goal is achievable if Democratic senators coordinate together. This means we need to punish defectors–any Democratic senator who aids or abets any harmful Trump policy should be subjected to a Coffee Party primary challenge in 2018. The Republican strategy was highly effective in thwarting Obama and reshaping the Republican Party’s ideology, and the same strategy can be used by the left today to take control of the Democratic Party and thwart the bad parts of the Trump agenda.