How Will Substantive Policies Change If Trump Stays in Office?
by Neil H. Buchanan
In my columns here on Dorf on Law and on Verdict over the last four years, I have insisted over and over again that people need to take seriously Trump's threat to the rule of law and especially to the peaceful transition of power. Initially, I would say things like, "setting aside the threats of violence that are obviously present," but eventually those threats became too obvious to ignore. Obviously, I am not happy to have been proven correct.
The one thing that has surprised me is that Trump is doing everything I thought he would do, but he is doing it before election day. I anticipated a nasty, racist, dishonest campaign with plenty of ugliness, but even I did not imagine that Trump would do what he has done this summer. Once he saw how badly he was losing, however, he freaked out. I will not give him the benefit of the doubt and say that he is acting based on an actual strategy, because I continue to believe that imaginings of his political genius ascribe method to pure madness, but in any case, he is showing that he will stoke violence and hatred while abusing his powers to satisfy his boundless ego and stay in the White House.
To be clear, I do think that Trump's acting this badly this early has, if anything, decreased the likelihood that he will be able to pull off an internal coup, which means that I have gone from completely resigned to mildly hopeful over the past few months. Even so, everything that we have seen suggests strongly that the Constitution and America's longstanding political stability are no match for a wannabe dictator and an entire political party of enablers.
One bit of very good news is that the discussion of a Trump coup has at last moved from the pages of Dorf on Law and Verdict to all of the centers of political discussion in the various political media. Even better, Democrats are starting to take this very seriously, with first-term congresspeople Elissa Slotkin and Mikie Sherrill directly asking the chair of the Joint Chiefs of Staff as well as the Secretary of Defense for assurances that the military will not be used during or after the election to keep Trump in office. What was once unthinkable is now under discussion, which is sad but necessary.
With that discussion now having gone terrifyingly mainstream, then, I have little more to add and can move on to a different set of questions. In particular, if Trump does stay in office (no matter the circumstances), what will happen next? This is its own chamber of horrors, but at least it does not involve running around with one's hair on fire for years while people say, "Oh, come on, you're being an alarmist." In any case, in a post-democratic America, how would the government's policies change? (I insist on putting that question in the conditional tense, even though that seems naively optimistic.)
Earlier this year, I started to ask a version of this question, asking how specific groups of people would be affected by an even more unbridled and erratic Trump. I first argued that the civil servants of this country will be immiserated, targeted by the people who still venerate Ronald Reagan and his "Government is not the solution to the problem; government is the problem" proto-anarchy. Salaries and benefits will be slashed, jobs will be eliminated, and most importantly, safeguards against politicizing government work will disappear. It will be all patronage, all the time.
On a related note, I brought it a bit closer to my own direct interests by wondering what it will be like for lawyers and legal scholars in a world without the rule of law. Will we become a pure banana republic, with Trump and Trump-anointed plutocrats holding their thumbs up or down in public show trials? Possibly, but I suspect that a political movement that has put so much effort into stealing judicial seats and populating the bench with self-styled philosopher kings will instead engage in what I called "legalistic lawlessness" -- essentially the style of legal decision-making that gives us decisions like Janus (non-political union dues are not allowed because people supposedly have the right not to be in any way besmirched by a liberal thing that they dislike), Shelby County (a unanimously-reauthorized act of Congress must be set aside because it is insulting to some states to prevent them from suppressing Black voters), the Muslim travel ban case (the president's stated motivations are irrelevant), or for that matter, Heller (rewriting colonial history to mangle the meaning of the Second Amendment). It will not look like lawlessness, but especially after the very occasional flashes of sanity from Chief Justice Roberts can no longer swing the Court, the outcomes will rarely be in doubt.
In truth, however, both of those arguments are essentially procedural. How will government employees roles and constraints change? How will lawyers and judges make arguments and decisions? Important questions, yes, but both are essentially about allowing the conservative movement that continues to back Trump to do what it wants to do. But what is it that they would choose to do, exactly?
I landed on this question after finishing my latest Verdict column, published this morning: "Trump Swings His Wrecking Ball at Social Security." There, I picked up on my Dorf on Law column from earlier this week, where I discussed Trump's now-in-force executive order suspending most workers' Social Security payroll taxes through the end of this year. Having used the Dorf on Law column to describe Trump's order on its own terms as silly but not at all disastrous (at worst causing some people to pay double taxes this coming January through April to make up for not paying any taxes for the rest of 2020), I noted on Verdict that the truly interesting policy question comes from a non-binding part of Trump's order, along with his incoherent comments when describing the order to reporters.
Specifically, Trump's order instructed the Secretary of the Treasury to come up with a way to allow workers not to make up the unpaid taxes next year, which would on its own terms mean that Trump wants to make the September-through-December non-payment of Social Security taxes a pure tax holiday rather than merely a deferral. A bad idea, to be sure, but "bad" only in the old-fashioned sense that reasonable people can for nonpolitical reasons disagree with me and conclude that it might be a good idea, all things considered. At the very least, such a holiday need not alter Social Security's long-term finances if properly handled, as we saw ten years ago when President Obama signed a temporary reduction in payroll taxes into law during the Great Recession.
But Trump's public remarks went much further than that, saying: "If I win, I may extend and terminate. In other words, I’ll extend it beyond the end of the year and terminate the tax." I should take a moment here to appreciate that Trump actually said, "If I win ... ," but we obviously should not take any comfort in that. More to the point, Trump was specifically saying that he would eliminate the Social Security payroll tax. It is unclear whether he would also eliminate the employers' half of the tax (given that the order only applies to the employees' half) or to the parallel Medicare payroll tax, but even on its own, eliminating that tax would all but gut Social Security in very short order.
Unless, of course, the payroll tax were to be replaced by some other source of revenue. Indeed, plenty of progressives (certainly including me) would like to see Social Security financed in some measure by a progressive tax, even as we worry that doing so might undermine the political support for the program. (People genuinely view Social Security benefits as something that they paid for and deserve; so having a dedicated tax is arguably the only way to keep the public from viewing Social Security as an unearned giveaway.) A reasonable discussion about the future of Social Security -- not just sources of revenues but levels of benefits -- would be great, and people like Senator Elizabeth Warren have been trying to have that discussion for years.
Of course, in a post-democratic world where Trump is president-for-life (with Ivanka as the crown princess), there will be no reasonable discussions about Social Security or anything else. All of which is what inspired my question that headlines this column. If Trump is entirely untethered, what would substantive policy making look like?
It is tempting to default to our baseline presumptions about political consequences. For example, with Social Security and Medicare being so popular, especially among Republican voters, surely House and Senate Republicans would not want to risk the voters' wrath by attacking their lifelines. But why would Trump and the Republicans care? One of their first post-election moves would be to make future elections shams, with the Republican candidate guaranteed to win every time. (Perhaps for show, they would allow a permanent minority party presence, keeping AOC and Pelosi around as useful bogeywomen.) The whole point of their voter suppression efforts, gerrymandering, and so on is to make it impossible to lose.
Certainly, Republican politicians' connection with their base is transactional at best. I find it difficult, for example, to believe that Mitch McConnell actually gives a damn about coal miners. Once Republican politicians no longer need to sully themselves by pandering to the masses, they will surely be relieved.
What about the effect on the economy? Eliminating Social Security, Medicare, and other programs long targeted by economic libertarians would be disastrous for people, but how would it affect Trump and actual billionaires? Some of them might understand that their fortunes are tied to having paying customers and healthy/educated workers, but will they be able to fight the immediate temptation to grab as much money as possible, while the getting is good?
We already know that Trump receives the enthusiastic support of his party and his business constituency when he reverses rules on water and air quality, workplace safety, and so on. There is no sense at all that anyone involved understands the notion of "enlightened self-interest" that we once saw in places like Business Week and evidenced in corporate support for the University of Michigan's position in Grutter v. Bollinger.
So what would guide substantive policy decisions? On Social Security, Trump could just say, "I'm cutting your taxes," and then Republicans would say that they refuse to impose any other taxes, leaving the retirement system to grind to a halt. On other policies, we can expect that a politically unconstrained government would simply indulge all of Trump's whims while checking off items from the Koch wish list. Plenty of things to be repealed, nothing to enact.
We know what this looks like. Over the decades, South and Central Americans have suffered from the unholy marriage of the moneyed class with kleptocratic governments, resulting in nondemocratic polities and highly inegalitarian societies. I doubt that anyone sat down in advance and planned any of those dystopian regimes, but they happened nonetheless when the corrupt elite were able to take more and more money and power for themselves. We have been moving in that direction for over forty years, albeit slowly. If Trump is still in Washington after January 20, there will be nothing left to stop it from accelerating out of control.