Talk about a Manic Monday! Given the vast amounts of news that was made on Monday (and also over the last few weeks) it seems like the perfect time to flash back to a DC Deciphered entry from March, A Caveat on Incompetence.
The point of that post was that Trump & the GOP were struggling to achieve some of their major initiatives due to some major incompetence on their part – and yes, we should be relieved that the incompetence was likely saving us from some of their grander ambitions, but we shouldn’t get too comfortable. Because even with that incompetence, even if they never managed to pass a single piece of major legislation (though they now may be on the verge of doing just that) they could still do an awful lot of damage to the country and progressive priorities.
I focused on three areas in particular where Trump would be able to have a big impact, without the GOP ever sending a single law to his desk. These were:
1. Shaping the judiciary – particularly the Supreme Court – but the lower courts are crucial as well, as the original post explains. (The original post was written after Trump had nominated Neil Gorsuch to the Court but before the Senate had voted on his nomination).
2. Immigration (including but not limited to the travel ban)
3. Climate (including but not limited to the Paris Climate Accord
I’m reposting this entry now because I think it’s important for those of us who oppose Trump to not get caught flatfooted and to instead try to understand what he & his administration have coming next. And I know it seems overwhelming, because Trump & the GOP are doing so many things we oppose, it feels like bad things are coming from every direction these days. But that’s the reality – Trump has many different levers of power to use to accomplish his goals. We just need to understand that reality.
And I don’t know exactly what the answer is, as far as how to respond to that reality. It’s a lot harder to fight these things that he’s able to do unilaterally, or through federal agencies, than it is to fight the things that have to go through Congress. But I think that if we at least try to get prepared in advance – instead of being caught off guard by these tactics – then we’ll have a fighting chance. So that’s why it’s important to keep in mind that the news that has come so far on these 3 topics is not the end game, but just an indication of the types of things that are still to come . . .
And before I repost the original blog entry (below), a note on Justice Gorsuch, as there was a lot of discussion before his appointment about just where he would fall on the ideological spectrum of the Court. Judges often like to portray themselves as completely non-ideological blank slates when they’re being evaluated for confirmation to the Court. Gorsuch was no exception and dodged even more questions than usual.
But in his short time on the Court, we can already see that Gorsuch will be one of the most conservative Justices on the Court, as many expert court watchers predicted. He is regularly aligning himself with the two far right Justices, Alito & Thomas, who are both more conservative than even the famously conservative Justice Scalia was.
Here’s what Gorsuch did in 3 notable decisions the Court announced on Monday:
1. The Court held that Arkansas must list the names of both same sex parents on a child’s birth certificate. Gorsuch dissented, along with Thomas and Alito.
2. In the decision on Trump’s travel ban, the Court decided to grant only a partial stay on the lower courts’ injunctions. Gorsuch, along with Thomas and Alito, would have granted full stays, which would have allowed the travel ban to go into effect in its entirety. And that gives a pretty good hint about how those three will vote when they hear the case next session. (Though it’s possible the Court won’t even decide the case on the merits, since the 90 and 120 day time periods in Trump’s executive order will have expired by then).
3. The Court decided not to review a 2nd Amendment case out of California. In 2008, the Supreme Court said that the 2nd Amendment gives individuals the right to own a firearm. This new case asks whether the 2nd Amendment gives individuals the right to carry a firearm outside their home. Only Gorsuch and Thomas dissented from the decision not to hear the case. Gorsuch joined Thomas’ dissent calling the lower court’s approach in ruling against the Plaintiff “indefensible.”
So we can already see how significant it is to have Neil Gorsuch sitting in that Supreme Court seat, as opposed to say . . . I don’t know, Merrick Garland. And with that, I give you once again, D.C. Deciphered’s caveat on the very big ways Trump can alter the country, even if he never signs a single bill into law . . .
A Caveat on Incompetence
Yesterday I gave you my early pick for “phrase of the year.” My choice, coined by Lawfare blog’s Benjamin Wittes, was this: “malevolence tempered by incompetence.” Wittes used the phrase to describe Trump’s first attempt at a travel ban. But in my post yesterday I explained why I thought the phrase would continue to apply to Trump – and the GOP as a whole – going forward. I ended the post, however, by promising that I had a note of caution coming in my next entry. So here it is . . .
My word of warning to Democrats (and other Trump opponents) is the following: don’t rely on this incompetence, do not get complacent. While I do believe – as I argued yesterday – that Trump/GOP incompetence will hamper them in achieving some of their larger goals, there is still a lot they will be able to accomplish and a lot of damage they can do to progressive priorities in spite of this. Even if Trump & the GOP never manage to pass a single major piece of legislation, they can still change the country in pronounced ways. The most significant example of this (barring any unknowns, particularly with respect to national security, war, terrorism, where the potential for harm is on a whole different level & impossible to predict) comes in the form of Judge Neil Gorsuch.
Democrats will almost certainly be unable to stop Gorsuch’s appointment to the Supreme Court. He’s young (49), and will likely sit on the court for most of the rest of our lives making his appointment especially impactful. (Even if you’re a 20-year old reading this right now, he could be on the Court until you’re approaching 60, if he’s anything like some of our current Justices). Not only will this sustain the 5-4 conservative tilt that has dominated the Court for decades, but expert assessments have found that Gorsuch is even more conservative than the Justice he will be replacing, the late Justice Scalia. In fact, these assessments find that he will be either the most or second most conservative Justice on the Court.
In addition to Gorsuch’s appointment, Trump will also get to appoint an unusually high number of federal court judges, because of the large number of seats that were left unfilled under Obama, mostly due to GOP obstruction. There are about twice as many vacancies now as there were when President Obama took office. Many important cases – often on controversial subjects – get settled in these federal courts without ever reaching the Supreme Court:
State gun control laws, abortion restrictions, voter laws, anti-discrimination measures and immigrant issues are all matters that are increasingly heard by federal judges and will be influenced by the new composition of the courts. Trump has vowed to choose ideologues in the mold of the late Supreme Court justice Antonin Scalia, a conservative icon — a prospect that has activists on the right giddy.
Another example where great damage can be done – and this one may sound surprising given where this post started – is Trump’s travel ban. So far, the courts have overwhelmingly resisted Trump’s efforts to implement this executive order. However, in a little noticed ruling last Friday, a federal judge in Virginia ruled in Trump’s favor on the revised version of the ban. This got lost in the swirl of so much other news. For now the ruling has no practical effect, because the nationwide restraining order issued by a Hawaii judge is still in effect.
But the Trump administration is citing the new Virginia ruling to try to get the restraining order lifted. And the Virginia ruling may be a preview of how other judge’s could find the executive order Constitutional. Most importantly, the ban will almost certainly make its way to the Supreme Court. There, Trump will – by then – have five conservative Justices who will likely (though of course nothing is certain) rule in his favor if they can find even the slightest rationale for doing so. We now see with this Virginia case that it’s possible to find a rationale.
And that’s just the travel ban. There’s also Trump’s stepped up enforcement of undocumented immigrants. Aside from the obvious emotional toll on the families, this policy is causing increased stigma and targeting against all immigrants. It’s also causing a slump in the tourism industry to the U.S., a huge drop in foreign applicants to U.S. colleges (a big financial hit to the schools & the economy in general), and overall is expected to take $5 trillion out of the economy over the next 10 years according to one study. The aggressive enforcement is also causing domestic violence victims to avoid pursuing their cases, for fear of being picked up by immigration agents at court houses. These are just some of the negative effects this policy change – done by executive order – is having.
And lastly, the environment: Trump (and his State Department) have already approved the building of the Dakota Access Pipeline (which is now complete, oil is pumped and about to start moving) and, just last week, the Keystone XL Pipeline. He has ordered a review of (with the ultimate goal of reversing) the Obama administration rule on fuel economy standards for vehicles, a rule which is meant to limit carbon emissions.
And on Tuesday Trump delivered his biggest blow to Obama’s legacy on climate change, with the signing of a broad executive order aimed at rolling back Obama’s Clean Power Plan. This was the biggest piece in Obama’s effort to curb carbon emissions and is considered key to meeting the U.S. commitment to the Paris Climate Accord. Tuesday’s executive order also seeks to reverse a handful of other Obama era rules that were aimed at tackling climate change. And speaking of the Paris Climate Accord, Trump campaigned on a promise to withdraw the U.S. from that agreement, a decision he gets to make unilaterally. So we should see in the next few months whether he will follow through on that as well.
Many of these actions on climate will likely end up being subject to legal challenges and many will be tied up in court for years before they can be implemented. (The changes will likely take years to implement even without legal challenges). But ultimately, even if some of the rules changes or parts of the executive orders fail a legal challenge, it’s likely that much of what Trump is doing here will survive.
Trump is attacking Obama’s climate plans from so many different angles, and more carefully than he did his original travel ban executive order. That’s why even if some of his efforts here fail, many are bound to succeed. (Dakota Access has already faced numerous lawsuits from opponents trying to stop the pipeline from being built, and so far all have failed. As mentioned above, the pipeline is now complete and about to start operations).
This excellent interactive from the Washington Post shows all the different methods that Trump and his team are using to dismantle Obama’s legacy. The piece applies to all areas of government, but it’s particularly instructive on climate change/environment. The Post tallies up all the different Obama rules & regulations that Trump has reversed so far.
He’s done this through a combination of (1) executive actions, (2) cabinet level decisions and (3) the Congressional Review Act. (See this post where I explain how the CRA allows certain regulations from a President’s predecessor to be easily overturned. Only one regulation in history had ever been overturned this way prior to Trump. Trump & the GOP have already used it to overturn seven. And they have at least 22 more in the works). Note that all of the changes the Post lists have been made without passage of a single piece of legislation.
And again, any of these moves could be susceptible to legal challenge. They’re not foolproof, and if they’re done with the same incompetence as the first travel ban, then they’ll fail. But Trump’s team does seem to have improved their process for drafting orders since then, and the Cabinet has finally gotten into place to give Trump backup, increasing the likelihood that they’ll succeed on these fronts.
Are You Trying to Bum Me Out?
So these are just a few of the most prominent examples of areas in which Trump and the GOP can turn back progressive priorities and do significant damage to the country, even if they never figure out how to get legislation through Congress. There are many other areas where Trump & the GOP will be able to apply these same methods. And of course, there’s always the possibility that they will actually learn from their mistakes and figure out the legislating part too. (And some legislation will be much simpler than health care or tax reform).
This is not meant to take away from the enjoyment of watching the GOP health care bill go down in flames, of watching the “ultimate closer” become the “ultimate loser.” I loved it as much as the rest of you – I was feeling the schadenfreude big time Friday evening. And I do believe there’s more of that ahead. This is just a cautionary note that even as we savor the failures, we cannot let our guard down because the GOP has multiple avenues for achieving most of its goals. We need to be prepared for fights on every front.