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.