The overgrown children who plan to demonstrate their moral purity by sitting out this election have a bedtime story they love to tell themselves. In the story, Donald Trump’s election wouldn’t be such a bad thing because the diffusion of power in the American political system would prevent him from carrying out the worst of his lunatic schemes.
Now, there is a germ of an idea there: political and institutional constraints greatly limit the power of a President. But it’s worth noting that the political constraints generally act through the perceptions of the President and those around him about what he can, and can’t, get away with: that is, precisely the sort of thing that would have kept Trump-the-candidate from, e.g., hurling ethnic insults at a federal judge. A President unfazed by criticism, and willing to ignore advice about the limits of his lawful authority from the Office of Legal Counsel, actually can get quite a lot done. No President in the modern era – even Nixon – has dared to say what President Jackson said about a Supreme Court ruling: “Mr. Justice Marshall has made his decision. Now let him enforce it.” But what if we had a President who was willing to behave that way, surrounded by advisers egging him on to do so? Trump’s power for evil might be substantially greater than (e.g.) Obama’s power for good.
Today a friend challenged me on this point: Make a list of ten really, really bad things that President Trump could actually do. A little bit of emailing around produced the following list. I’ve divided it into two groups: the “stroke-of-the-pen” things that a President could accomplish just by ordering them, and other things that would require Congressional approval or help from state governments. But let’s not forget that Trump’s election would almost certainly mean both that he had a Republican Senate and House to work with and that the Republican members of those bodies would mostly be terrified of primary challenges should they oppose the imperial will.
The distinction between the two groups is not absolute; in principle, the appropriations power could be used to constrain virtually any Presidential action, in the extreme by zero-budgeting the Executive Office of the President, leaving The Donald to write his own orders. And of course there is always the impeachment power. But again, an election that brings us Trump would be likely to disable those safeguards as well.
“With a stroke of the pen”
- Deny hostile, or even objective, journalists and media outlets access to information by refusing them admittance to press conferences, instructing appointed and public-affairs officials to refuse all interviews, and subjecting even routine data requests to FOIA delays. That will have three effects: disabling the effective capacity of the independent media to exercise oversight; giving professional and business advantages to complaisant reporters and their outlets; and creating incentives for reporters and outlets alike to stay in the Administration’s good graces.
- Institute criminal investigation and prosecution of political opponents. The Attorney General, the FBI Director, and the 94 United States Attorneys all serve at the pleasure of the President. (The 10-year term of the FBI Director is a maximum, not a minimum, and Bill Clinton fired Director William Sessions in 1993.) Now imagine FBI Director Chris Christie, reporting to Attorney General Jeff Sessions. Those positions, and the U.S. Attorney slots, are all Senate-confirmable, but even if the Senate were to resist the President could appoint all of them on an acting basis.
- Use tax enforcement and the award or denial of tax-exempt status to punish enemies and rewards friends. The Director of the IRS is also a Presidential appointee. Civil-service protections would make it harder to replace IRS career staff with political loyalists, but the GWB Administration made substantial progress in filling the Justice Department with Republican apparatchiki, and the same could be done at the IRS.
- Attack “liberal-leaning” universities and not-for-profit research enterprises by either interfering with the grant process directly or by using financial or compliance audits to disqualify them.
- End enforcement of the Voting Rights Act. This is entirely at the discretion of USDoJ, and no doubt Assistant Attorney General Kris Kobach will have other priorities.
- Cease Department of Justice investigations into police misconduct.
- Mount a massive deportation process. Direct the Department of Homeland Security to target and remove persons who registered under DACA and DAPA.
- Investigate the “loyalty” of Muslims in the civil service and the military.
- Substantially reduce enforcement of anti-discrimination law, including revoking executive orders that require nondiscrimination by federal contractors.
- Block all entry of refugees.
- Wreck the Affordable Care Act in practical terms by reversing the administrative decisions that make it feasible, and destroy it legally by conceding its unconstitutionality the next time it is challenged in court.
- Loosen regulation and virtually eliminate enforcement of all environmental laws, workplace health and safety laws, and consumer protections. Early targets would be the Obama Administration’s aggressive attack on air pollution from coal-fired power plants and the newly-instituted fiduciary-standards rule for pension advisers.
- Reinstitute torture by replacing the Army Field Manual with Bush-era interrogation “standards.” I do not believe that most, or even many, senior officers would abide by such orders. But the President is, indeed, Commander-in-Chief, and only custom keeps him from firing those who disobey unlawful orders. (When President Lincoln was told that Confederate forces had captured forty mules and two major-generals, he replied, “Too bad about the mules. Major-generals I can make.” Ranks of O-4 [major or Lieutenant Commander] and above require Senate confirmation, but junior officers are created by Presidential fiat, and brevet promotions are unlimited.)
- Encourage Russian aggression in Europe by renouncing our NATO obligations. Start by recognizing Russian sovereignty over the Crimea.
- Withdraw the U.S. from other treaties and international organizations: WTO, NAFTA, the U.N., the Paris Treaty on international climate change.
- Encourage Japan and South Korea to develop nuclear weapons by raising questions about the validity of our security commitments.
- Unofficially encourage or sponsor the growth of armed far-right “militia” groups, and discourage enforcement of federal laws against them (e.g., vigilante border enforcement groups, takeovers of federal lands by
“sovereign citizen” organizations).
By legislative action or with the advice and consent of the Senate, or the help of state governments
- Appoint at least one and perhaps three Supreme Court justices on the Alito model, locking in a right-wing majority for a generation.
- Reduce tax rates for the rich.
- Block grant food stamps and/or Medicaid.
- Appoint anti-worker and anti-union members to the National Labor Relations Board.
- End federal support for the full range of women’s health services, including ending the federal partnership with Planned Parenthood.
- Increase domestic production of coal and oil while ending public investment in renewable energy.
- Repeal of Dodd-Frank, Sarbanes-Oxley, consumer financial protection laws.
- Disenfranchise Democrats with a combination of voter-suppression tactics (shorter voting hours, fewer voting machines leading to longer waits, hard-to-meet “Voter ID” rules) and gerrymandering. In the extreme, use electronic vote counting to simply miscount the votes.
A story is told of Benjamin Franklin. As he left the Constitutional Convention – which did its work in secret – for the last time, a woman stopped him to ask, “Well, Dr. Franklin? What have you given us? A monarchy, or a republic.” Franklin answered, “A republic, madam: if you can keep it.”
This is not a game. Institutions do not maintain themselves. Not all damage is reversible. I do not believe that Trump will be elected, and I do not believe that, if he were elected, that would be the last relatively free and fair election for President. But it’s not impossible. Let’s not do the experiment.
I consider this list provisional. Please suggest additions, subtractions, and edits in comments. Do not take that as an invitation to debate. Comments of the form”but howsabout Hillary?” will be relentlessly zapped.